Jaroslav Plotnikov

Nach Ermessen – how this bureaucratic phenomenon can work for you?

Why German officials sometimes make confessions and show goodwill
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                                                                                                              Picture credit: Juracademy

German bureaucracy is by no means an inflexible monilith. Not at all, no. In Germany, there is quite officially a decision making area that allows a decision-maker (say, an official) to make decisions within the framework prescribed by law at his or her discretion. 

Wikipedia explains Discretion (German: Ermessen) as “acting on one’s own authority and judgement. In law, discretion as to legal rulings, such as whether evidence is excluded at a trial, may be exercised by a judge”.

Okay, I can imagine Ermessen is not the German invention. In Russia, my country of origin, civil servants also have a free space for decision-making. But the do it as they want and often you can steer their decisions with certain sums of money. In Germany almost everything is really prescribed and fixed, even the bureaucratic freedom of choice.

Some view discretion negatively, while some view it positively. Discretion exists at all levels of law enforcement and in many types of front-line bureaucrats. Discretion has been called “the Art of suiting action to particular circumstances” (Lord Scarman). Those in a position of power are most often able to exercise discretion as to how they will apply or exercise that power. The ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed.”

And that makes sense. At discretion, the bureaucratic red tape should be reduced. Ultimately, a functionary should not consult with the authorities for every little thing. He gets a certain freedom of decision and acts within their framework.

*- https://en.wikipedia.org/wiki/Discretion

Example of decision made nach Ermessen – the real case happened in the German Embassy:

An engineer from Moscow, who had taught himself PHP after 7 years of practical experience in Russia, was invited to Berlin as a programmer. During the interview at the Embassy of Germany, the situation has stalled. The problem was his university degree: civil engineer (MAI aerospace faculty) instead of software engineer… The embassy officer was requiring the written translation of the disciplines listed in the university diploma. Below is the translation of his narrative interview (the whole transcribed interview can be found here (in Russian)

I am a person who usually just goes. And here I nearly left …. Well, it did not mean the full disaster. It just meant that I need to prepare more documents. Fortunately, we could figure everything out directly in the embassy without any written translations. I just started asking some additional questions “What do you exaactly need …?”, “When do you need this?”, “Should this …?”, “Does this translation have to be certified? ” As you know there is a big difference between the usual translation and the certified one… Pretty many questions like that. The officer was clarifying all my questions asking some of his superiors. And at some point he just said: “Listen, we can check your diploma right now, there’s no problem.” Then we just got through the list of subjects. I realized, there were more items on the list than I expected, which are related to programming – for example all the math can be attributed to programming. And, fortunately, there were several subjects related to mathematics, statistics, also programming, plus I also attached electrical engineering, which is very far from programming, but … As a result, there were 6-7-8 items that can be attributed to programming. Finally the officer said: “Well, the documents are accepted!” And that’s it. A few days later I received a German visa with the working permit.

Nach Ermessen can work both for you and against you. You look attractive and can approach people well? You may get more from one officer than the other applicants. The downside: despite all your charm, it can always happen that your clerk doesn’t like you without any reason. Just doesn’t. Or he could just be in a bad mood that day. Then you don’t have to be surprised that everything that could go wrong also goes wrong and your request is being proceed for extremely long.

What can be done about it? Well, there’s no cure for that. However, the courtesy, dignity, open smile and some charm – that works well in Germany. Don’t forget, the civil servants are just human beins. If a clerk has a really bad day, he might be able to let off steam on his colleagues. If this is not possible – then on the visitors. This is also true the other way round – if a clerk is in a good mood, your request is as good as done.

Did I manage to explain nach Ermessen well? Have you got any experience of nach Ermessen occasions in Germany?

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