Observations on the Expanding Effect of the Administration's Pursuit of "Virtual Public Order" on Civil Servant's Duty of Loyalty Based on Constitutional Court Decisions

In disputes between the administration and public officials, the notion of “(public) service requirements,” which forms the legitimacy basis of the contested administrative act, grants broad discretionary power both to the administration and to the administrative judge with regard to defining the limits (or scope) of the official’s duties and obligations. However, unlike the administration and the administrative judiciary, the Constitutional Court—which adjudicates claims of fundamental rights violations at the national level—adopts an approach based on the “requirements of a democratic society.”

This study examines the boundaries of the duty of loyalty to the state within the framework of a “virtual public order,” focusing on individual application judgments regarding civil servants’ freedom of expression on social media, and taking into account the divergence in judicial review models described above.

From the perspective of the administration and administrative courts, social media posts by public officials are assessed in light of the status-based legal framework and their compliance with “service requirements.” Each case is examined with consideration of various factors such as the civil servant’s service class, the format of the expression, the audience it addresses, its potential sphere of influence, and the frequency of the posts.

In individual application judgments, however, the Constitutional Court emphasizes that public officials are also “individuals” with the right to hold political opinions and engage with public affairs. Therefore, it reviews interferences with their fundamental rights—such as disciplinary sanctions—according to the criteria it has developed under the “requirements of a democratic society” standard. Notably, the Court’s increasingly consistent case law underlines that both the administration and administrative judiciary must now adopt this standard of review.

This development reveals that the Constitutional Court has assumed the role of establishing the balance—at the national level—between the obligations arising from the public status of civil servants and the rights they enjoy as individuals. Furthermore, it appears that both the administration and administrative courts are increasingly influenced by this balancing approach. Nevertheless, recent individual application decisions suggest that there is not yet full convergence between the Constitutional Court and the Council of State on this issue.