The new German government and its coalition agreement: How should the administration be modernized? Overview and classification

The author Dennis Hillemann is a partner and specialist in administrative law. The author Christine Charlotte Fischer is a lawyer specializing in administrative law issues. Together they advise ministries such as public authorities as well as companies on public law. They have eagerly awaited the plans for modernizing the administration in the new coalition agreement and offer an initial overview and assessment in this article.
 

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Germany has voted. The SPD, the Greens, and the liberal FDP parties will form the new federal government. Yesterday, 24 November 2021, the three governments presented their new coalition agreement at 3 pm. What are the new government parties planning on the topic of modernizing the state system and administration? An overview and initial assessment.

 

Basic overview

As already made clear in the exploratory paper published in October, the new government wants to modernize the state and its administration comprehensively. One important topic is the digitalization of the administration. Germany will only be able to act at the cutting edge if they modernize the state itself in the view of the three parties. The goal is to make state action faster and more effective and better prepare it for future crises. That is why the digitalization of the administration is to be advanced. Within the framework of this digitization push, the aim is to

• make life easier for citizens,
• modernize public spaces and networks,
• the planning, approval, and implementation of projects will be significantly accelerated, and
• the administration to become an ally of the economy.

 
This digitalization push is urgently needed. Particularly in international comparisons, whether at the global level or within the European Union, Germany usually occupies at best midfield positions. That is too little for one of the largest economies in the world.

 

Modernizing the administration

One of the first and, at the same time, most important sections of the new coalition agreement deal with the modernization of the administration. 
The primary goal of this administrative modernization is to make the administration more agile and digital in its thinking. In doing so, an approach is chosen that many private providers of digital solutions know and appreciate: The state offers, and the digital administrative services should be thought of from the user's point of view, i.e., from the citizens or companies that use them. This can be a fundamentally different approach than the one that has often determined the digitization of administrative procedures so far. In the classic system, analog administrative procedures are digitally mapped, step by step. In the process, the needs of the administration were often more in the foreground than those of citizens or businesses. Against this background, this statement and the approach behind it in the coalition agreement are welcome.
 
 

Project teams

The traffic light coalitions have recognized a fundamental problem of the German administration in the context of digitalization: Silo thinking. Behind this is the realization that individual administrative bodies share neither data nor digital offerings nor interfaces, which often causes frustration and incomprehension at the user level of citizens and businesses. This is because they perceive the state as a uniform third party and do not distinguish between state and federal authorities in their sense of entitlement. 
Therefore, the new coalition is calling on the administration to become more agile and digital and focus on interdisciplinary solutions. The new government's goal of overcoming silo thinking with agile project teams and creating innovation units with new competencies is likely to be exciting. However, this is likely to mean both the amendment of laws and the question of whether constitutional issues will arise, especially the distribution of competences between the federal government and the federals states ("Länder").

 

Planning and approval procedures - speed, speed, speed

A central concern of the new government in modernizing the state is to speed up administrative, planning, and approval procedures. The authors of this article know the subject only too well, as they advise the public sector themselves on the one hand and accompany companies in administrative procedures on the other. German administrative law is complex, and extensive internal coordination hinders the rapid completion of procedures. How does the new government intend to change this?
 
The core answer is: quickly and ambitiously. As early as 2022, the new government wants to make all the necessary decisions and enforce them to implement private and state investments rapidly, efficiently, and unerringly. Therefore, the duration of procedures is to be halved. 

How can this be achieved? The key points:

• Digitisation of planning procedures: The new federal government wants to prioritize the digitalization of planning and approval processes. This means more technology, more staff, more knowledge. The digital portal for environmental data will be expanded into a publicly usable central archive for mapping and species data. 
• Accelerating and streamlining citizen participation: To speed up administrative procedures, the new government wants to introduce the earliest possible and most intensive public participation. This will be combined with a duty of the involvement of the recognized nature conservation associations and for the public concerned. The government wants to introduce an effective form of substantive preclusion that is permissible under EU law. From the authors' point of view, this will mean considerable changes to existing laws, which will have to be processed as early as 2022 because of the annual target. We are personally skeptical whether this will succeed but welcome the idea. The duty of participation for nature associations and companies will be exciting - how will this be legally structured and, in particular, in conformity with the Union and fundamental rights? Ultimately, we expect decisions from the European Court of Justice and the Federal Constitutional Court on the admissibility of such obligations to cooperate. But in principle, there is nothing against them - they are already standardized in some laws today. People, associations, and companies are active in a society and must therefore submit to specific rules of the game, which may include duties to cooperate.  
• Internal deadlines: In practice, many public authorities squelch coordination with other public bodies. Feedback often takes a very long time. The new government wants to counter this with internal administrative deadlines - and approval fictions. This means that if another authority does not respond within the set time limit, its approval is deemed to have been granted. This is a sensible measure, but it will pose significant challenges to the public administration, which is often far too thinly staffed. 
• Legal planning: Instead of particularly lengthy administrative procedures, the new federal government wants to create the possibility of legal planning. This means that for significant projects, planning will be done by law. This is much faster and massively reduces the opportunities for legal protection and thus the possibilities of preventing planning. It will be interesting to see how the nature conservation associations, in particular, will react to these ideas, as they will lose their ability to influence legislative procedures. 
• Simplification of administrative procedures: All state agencies should simplify and improve executive functions so that legal disputes are avoided as far as possible. This sounds good, but there is hardly any concrete information on how this is to be achieved.
• Increasing human resources: The necessary human and technical resources in the authorities are to be increased. The authors of this article welcome this idea but are skeptical about its implementation. Where should the personnel come from? There is already a shortage of skilled workers in the economy. 
• Acceleration agencies: A new way of thinking should prevail within the public sector. Many public authorities already have units that are supposed to advise citizens and businesses. The coalition agreement speaks of "in-house advisory capacities." These are to be transformed into so-called "acceleration agencies." In the authors' view, this is a good plan, but for it to succeed, digitalization is indeed needed and the provision of further training for employees so that they can meet these expectations.
• Strengthening the Federal Administrative Court ("Bundesverwaltungsgericht"): Additional senates are to be created at the Federal Administrative Court. This makes sense, as effective planning procedures usually trigger disputes that end up before the Federal Administrative Court, where they often last for years. The deepening of the Elbe was an example of this.
• Change in the administrative process: For practitioners like us, it is of particular importance that the traffic lights speed up administrative court proceedings. This is because it wants to introduce an "early first date," as is customary in civil and labor court proceedings. Today, administrative court proceedings often take years to reach a date. However, we are skeptical whether this will change much: The administrative court, unlike the civil court, has to clarify the facts of the case ex officio. This takes time, and an early first hearing will not change anything. In our view, it would be better to increase the number of administrative judges massively and further improve the digital infrastructure of the administrative courts. 
• Protection of species and renewable energies: To drastically accelerate the planning of infrastructure projects, especially the expansion of renewable energies, the government wants to clarify the relationship between climate protection and species protection. To achieve the climate targets, the construction of plants for the generation or transport of electricity from renewable energies and the expansion of electrified railway lines is in the public interest and serves public safety. The new government wants to regulate this by law - and thus obviously accelerate the expansion of renewable energies. 

 

These ideas are, to a large extent, welcome. But they will require legal implementation and the expansion of personnel and technology to make them a reality. Will they succeed so quickly? The authors do not know, but they are curious.

 

New management culture

The new government is also making new demands on the management of ministries, authorities, and public enterprises: To promote a modern culture of leadership and responsibility and ultimately think digitally.
In addition, the initiative and courage of those working in the public sector are to be particularly valued. This is an excellent formulation from the authors' point of view: too often, they have also experienced that innovative ideas in ministries and authorities fail because of a culture of fear. Usually, the rule has been: don't make a mistake and instead follow familiar paths. Of course, it is true that in the public sector, because of the obligation to respect fundamental rights, there can be no trial and error in practice, as we know it in the digital economy, especially from some international companies. But there must be the possibility internally to pursue innovative approaches and to express ideas accordingly. 
For digitalization to take root in people's minds, it should also become a core component of public service training. 
An easier exchange or rotation between authorities should also contribute to the new personnel concept. The traffic lights want to simplify these possibilities.

 

Legislative procedure

In the last period, legislative procedures dragged on, sometimes agonizingly slowly, and their status was not transparent. The traffic lights want to improve this: 

• A Centre for Legislation is to be established to improve legislative procedures.
• In addition, a digital legislative portal is to be set up, which will make it possible to see at what stage legislative procedures are.
• In addition, it will be possible to submit public comments via this portal.
• Citizens' councils are to be set up to accompany the work of parliament. It remains to be seen how this is compatible with the principle of representative democracy.
• Laws are also to be subjected to a digitalization check. What this will mean exactly remains to be seen.

 

Many a coalition has promised to improve the long and complex legislative procedures. However, it remains to be seen how this will be implemented in practice. After all, the Basic Law provides a framework here, and European concerns must also be considered. 

 

Transparency

Like almost every coalition in recent decades, the new alliance promises us the principle of open government. This is to include:

• Federal Transparency Act: The government wants to develop the Freedom of Information Act into a Federal Transparency Act. The authors of this article do much work in this area and welcome the approach. This is because there is currently a multitude of rules that coexist and make legal practice unnecessarily complicated. In addition, there are developments in case law and experiences in practice that make it sensible to adopt the freedom of information laws in parts.
• Tightening up the hitherto toothless Lobby Register Act
• Footprint in draft legislation: It is to be disclosed which third parties influenced the draft legislation; legally, however, Art. 38 of the Basic Law and the principle of the free mandate will have to be taken into account.
• The government wants to implement and further develop the National Action Plans within Germany's Open Government-227 Partnership (OGP) framework.
• Various donation and sponsorship rules for contributions to political parties are to be tightened in the long term. This is also a consequence of the "mask affairs."

All in all, the plans seem sensible in response to the developments of recent years and the accusation of unlawful influence on parliament by lobbyists. However, the implementation in practice, especially its speed, remains to be seen.

 

Digital innovations and digital infrastructure

The new government believes that Germany needs a comprehensive digital awakening. To this end, a new additional digital budget is to be created at the federal level to subject laws to a digitalization check. Of course, this means that there will be no digital ministry, but at least the digital budget will be watered down. 

 

Digital administration

In addition, the administration is to be sustainably digitized. This includes:

• The Online Access Act (OZG, "Onlinezugangsgesetz") is to be further developed. This is urgently necessary: According to this law, many administrative services should be digitalized by the end of 2022. A goal that is being missed. It is good that the new government is pushing the pace here. This also includes the critical goal of standardization.
• Municipalities are to receive federal support for digitization.
• Identity management: A critical topic. Citizens and businesses do not need 85 different logon data or digital identities for the state, whether federal, state, or municipal authorities. Instead, there should be a generally applicable identity management system. 
• The government wants to set open standards for public IT projects. 
• Development contracts are usually commissioned as open-source, and the corresponding software is generally made public. 
• Cloud: Based on a multi-cloud strategy, open interfaces, and strict security and transparency requirements, the government wants to establish a public administration cloud. 

 

Digital infrastructure

Digitization only works with a good infrastructure. Therefore, the traffic light government wants to implement the following:

• Fibre optics: Nationwide coverage with fiber optics is to be ensured - as well as with the latest mobile phone standard.
•  The infrastructure is to be achieved through faster approval procedures (see separate section).

 

Digital civil rights and IT security 

In these areas, the new government wants to achieve the following, among other things:

• The government introduces a right to encryption, effective vulnerability management, with the aim of closing security gaps, and "security-by-design/default" specifications. This will have a substantial impact on IT security, especially in public administration. The state must also offer the possibility of genuine encrypted communication. What does this mean, for example, for e-mail communication with public authorities by citizens, who usually do not use any unique encryption technology? It remains exciting to see how this will be implemented.
• Manufacturers will be liable for damages negligently caused by IT security vulnerabilities in their products. This will create a new form of product security law.
• The cybersecurity strategy and IT security law will be further developed.
• Digital sovereignty: The new government wants to create a right to digital sovereignty for citizens. This includes the right to interoperability and portability and the reliance on open standards, open-source and European ecosystems, for example, in 5G or AI. 
• The new government wants to initiate a structural reorganization of the IT security architecture; it intends to make the Federal Office for Information Security (BSI) more independent and expand it as a central agency in IT security. 

 

Use of data and data law 

Interesting: The new government aims to improve access to data, especially to enable start-ups and SMEs to develop new innovative business models and social innovations in digitalization. A data institute is to drive data availability and standardization, establish data trustee models and licenses. This level concerns access to government data, which is necessary for many - especially young - companies to compete with the big players, especially from the USA.
But the public sector should also be strengthened in its access to data: Access to data from companies should be possible under fair and competitive conditions, especially if this is necessary to provide services of general interest. New data law is also to be created for this purpose.
 

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Of course, these are not all the points concerning the state in the new coalition agreement. But they are, in the view of the authors, very forceful points that stand for a modernization of the state. Whether this will succeed, we have been skeptical at individual facts; but we are optimistic that there will also be many positive impulses for the state system for the administration, businesses, and citizens.
 

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