Differences in Legal Clerkship East/West
The legal clerkship is a central part of legal education in Germany. The term “Differences in Legal Clerkship East/West” primarily refers to the examination of structural, substantive, and legal deviations in legal preparatory service in the new (East) and old (West) federal states since reunification in 1990. The following article delves into the development, current regulatory mechanisms, legal foundations, and effects of these differences, and provides a comprehensive overview of the legal structure of clerkships in eastern and western Germany.
Historical Development of Clerkships in East and West Germany
Origins and Transformation of the Clerkship
The legal clerkship was structured differently in both German states after 1945. In the Federal Republic of Germany (West Germany), the clerkship remained closely aligned with the tradition of Prussian legal education, whereas a separate legal education system was established in the GDR (East Germany). The reunification in 1990 led to the adoption of West German legal models in the five new federal states, with specific regional adjustments made.
Introduction of the Uniform Legal Preparatory Service
With the enactment of the Unification Treaty, legal preparatory services in East Germany were restructured based on the West German model and unified access to the so-called assessor examination was established. Nevertheless, there are still substantive and organizational differences between the federal states, which are particularly reflected in training regulations and the conditions of the clerkship.
Legal Foundations and Regulations at a Glance
Federal Legal Provisions
The legal preparatory service is regulated throughout Germany in the German Judiciary Act (DRiG) (§ 5 DRiG), but allows the federal states considerable leeway in implementation. Other relevant provisions can be found in the respective laws governing legal education (JurAG) and each state’s training and examination regulations.
State-Specific Provisions
Both in the new and old federal states, there is independent legislative authority at the state level. The federal states particularly determine:
- Entry requirements and admission procedures
- Duration and sequence of training rotations
- Remuneration (maintenance allowance)
- Practical training locations and content
Depending on the state, and especially between East and West, these regulations can vary considerably.
Structure and Content of Clerkships East/West
Sequence and Training Rotations
The clerkship is divided nationwide into several mandatory rotations, including the civil, criminal, administrative, law firm, and elective rotations. However, the content, duration, and emphasis of the individual rotations may differ between eastern and western federal states. For example, some East German states place greater emphasis on gaining practical experience in public administration, while West German states often focus more on law firm and elective rotations.
Differences in Training Remuneration
The amount of maintenance allowance for clerks is not regulated uniformly across Germany. Historically, remuneration in East German states was lower than in the West, although gradual adjustments have taken place. Nevertheless, there are still significant differences in the amount of monthly maintenance allowance in some cases.
Selection and Allocation of Training Places
Differences are also evident in the allocation process and waiting times for clerkship placements. In particular, East German states often have shorter waiting periods and more favorable ratios between the number of applicants and available positions than certain West German states.
Examinations and Examination Procedures
Structure of the Second State Examination
The second state legal examination is part of the clerkship and is conducted independently by the judicial examination offices of the states. The requirements, number of written exams, and weighting may vary from state to state—including between East and West—even though uniformity is essentially sought through coordination by the Conference of Ministers of Justice.
Grading Systems and Awarding of Marks
There are minor differences in the grading and weighting of examination performances in state examination regulations. Although the grading scale is based on a nationwide uniform regulation as per § 5d para. 2 DRiG, the composition of the grade (written exams, oral exam, file presentation) may differ.
Special Regulations and Regional Diversity
Recruitment Requirements and Requalification
In the new federal states, specific transitional regulations for graduates of GDR legal education were created as part of reunification (so-called requalification procedures). These rules do not exist in the West and significantly shaped access to the clerkship and legal professions in the East for many years.
Practicality and Regional Differences
The practical organization of the preparatory service—such as allocation to courts, prosecution offices, or administrative authorities—is based on regional circumstances. In East German states, where central courts are often less densely located, longer commutes or alternative supervision models may apply compared to major western cities.
Impacts and Current Developments
Trends Toward Alignment and Continuing Differences
Although numerous differences have been reduced over the past decade, regional specifics still remain. As more time passes since reunification, further steps toward nationwide harmonization are being pursued.
Legal Policy Debate
The debate over nationwide uniform regulation of the legal preparatory service has repeatedly taken place at both federal and state level. Thus far, the federal model of independent state regulation has prevailed.
Summary
Differences in legal clerkships between East and West stem from historical development, the legal autonomy of the federal states, and each state’s specific design of training and examination modalities. The key divergent aspects concern remuneration, training focus, examination structure, and organizational implementation of the clerkship. The legal foundations are defined in the German Judiciary Act and in state-specific training and examination regulations. Despite numerous adjustments, there are still recognizable, specific differences that are mainly influenced by respective state regulations and historical developments.
Frequently Asked Questions
How do the laws governing the process of clerkships differ between the eastern and western federal states?
The clerkship in public service—especially in the legal and educational fields—is largely regulated at the state level and subject to the respective state laws. There are sometimes considerable legal differences between the eastern (Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt, Thuringia, Berlin [as former East-West interface]) and western states (e.g., Bavaria, Baden-Württemberg, Hesse, North Rhine-Westphalia), particularly with regard to the relevant regulations, especially the training and examination ordinances. The duration of the clerkship, the definition of training rotations, number and structure of mandatory classes (in teaching) or compulsory rotations (in the legal preparatory service), regulations on secondary employment, and requirements for the final examination (second state examination) are each regulated by the states’ regulations and administrative provisions. In the East, legal requirements often still reflect revised framework ordinances created following accession to the Federal Republic, which—despite adjustments—means that independent rules and deviations in deadlines, requirements, and processes continue to exist, for example with respect to the examination process or the rights and duties of trainees.
Are there differences in civil service law for clerks between East and West Germany?
The Civil Servants Status Act (BeamtStG) and the German Judiciary Act (DRiG) provide Germany-wide foundations for the civil service status of legal clerks and teacher trainees, however, the states—and this is still more evident in the East German states—can establish their own detailed regulations. Appointment to the public-law training relationship (civil servant on revocation) is based on the respective state civil service laws, which can, for example, feature differences in probation periods, periods of notice, grounds for dismissal, or the recognition of prior service periods. Rules regarding the employer’s duty of care in the event of workplace accidents, maternity protection and parental leave, regulations concerning secondary employment, or disciplinary procedures may also differ as a result. There remains a need for adjustment in the East German states in order to align more closely with the western model, especially in detailed matters such as admission requirements or civil servant duties.
How does the legal regulation of remuneration (maintenance allowance) during clerkships differ between East and West?
The amount of maintenance allowance (or candidate remuneration) for clerks is regulated by each state’s own remuneration laws and therefore varies. While efforts were made to align payments after German reunification, there are still some differences in the amount paid between East and West German states. Legally, the scope for setting these amounts lies with respective state governments, so differences can exist both with regard to basic pay and family-, child-, or location-based supplements. Whether and in what form bonuses, such as a metropolitan allowance in Berlin or surcharges for single parents, are granted, is also regulated differently. This is especially notable in special cases such as the consideration of social contributions or tax benefits, which vary based on the legal framework in each state.
Are there legal differences between East and West in recognizing training periods or prior achievements?
Recognition of academic achievements, so-called prior achievements (e.g., internships, additional qualifications, or previously completed rotations in other federal states), is governed by each state’s training and examination regulations. While West German states traditionally have more uniform and longer-standing rules, East German states may have transitional provisions or special regulations resulting from the shift from the GDR system to the federal system. This can mean that training periods from another state or abroad may be recognized for different lengths of time or through various procedures, or may be subject to conditions (e.g., catching up on specific training content). Legal assessment is always the responsibility of the respective state judicial examination offices or state teacher training institutes, following the legal requirements of their own state.
Do legal regulations for the second state examination in the clerkship differ between East and West?
The second state examination is conducted based on state legal examination regulations. This covers the number, form, and weighting of examination elements (written exams, oral exams, teaching demonstrations), as well as entry requirements, grading scales, and opportunities for retakes. There are sometimes major differences between East and West German states, for instance in the number of written exams to be completed during the legal clerkship (e.g., seven in Bavaria, eight in Saxony), the components of the teaching examination (e.g., academic colloquium only in some states), the structure of written assignments, or the involvement of additional assessors. Legal provisions for appealing exam results (remonstration deadlines, legal recourse procedures, etc.) are also regulated differently by state laws.
Are there differences in legal avenues and possibilities of appeal in cases of service or examination-related disputes during clerkships?
In principle, judicial responsibilities are identical nationwide: the administrative courts have jurisdiction over service-related disputes (e.g., dismissals, disciplinary matters, performance evaluations), and the examination litigation channel applies for disputes over examination decisions (heard by administrative courts). However, details differ by state, such as deadlines for appeals, pre-trial procedures, admissibility of remonstrations, and access to effective legal remedies, all of which are governed by the respective state laws and procedural regulations. For example, some East German states have shorter objection periods or specific requirements for legal notices, while West German states have in some cases established more comprehensive remonstration procedures. Measures regarding file inspection or the possibility of (explicit) appeals during the clerkship also differ according to the respective state legal frameworks.
Are there state-specific legal regulations that must be observed regarding maternity protection, parental leave, and gender equality during clerkships?
Yes, in addition to nationwide framework regulations (Maternity Protection Act, Federal Parental Allowance and Parental Leave Act, General Equal Treatment Act), there are state-level implementation provisions, which may differ in detail. For example, there may be differences in the arrangement of leave and protection periods, the amount and continuation of maintenance allowance during maternity/parental leave, the extension of training periods, and recognition of parental and maternity leave periods as part of the clerkship. East German states often feature more traditionally generous provisions for reconciling family and training, as well as specific quotas and protective measures, while West German states tend to rely more heavily on federal minimum standards. There are also differences in equality regulations (e.g., support programs, compensation for disadvantages in examination procedures), all of which are specified in the respective state laws and official notices.