Office stability

from Wikipedia, the free encyclopedia

The stability of offices is a principle of the German civil service law .

It particularly concerns the problem of competitor lawsuits against early applicants, e.g. B. in a dispute about a promotion or employment . After that, once made, is to appoint an official no longer remedies can be undone by a competing candidate. Appointments that have already been made are then legally valid, unless one of the reasons listed exhaustively in civil service law exists, under which the invalidity of the civil servant relationship can be determined or the appointment can be withdrawn (cf. Sections 11, 12 of the Federal Civil Service Act ; or the corresponding standards of the Civil Service Framework Act and the State civil servant laws).

The strictness of form of the limited possibilities to withdraw the appointment is seen as a traditional principle of the civil service , protected by Art. 33 (5) of the Basic Law . Other reasons for the stability of office are the principle of legal certainty , the public's trust in the status of an official and the trust of the appointed official, which is worthy of protection. His personal interests would come into insoluble conflict with the legal protection interests of the rejected applicant if there was a risk of the appointment being cassated.

In the case law of the administrative court , the legal protection of the unsuccessful applicant is generally only seen in the procedure of provisional legal protection according to Section 123 (1) VwGO, according to which an interim order can be issued against the appointment before the appointment.

The principle of office stability can therefore lead to the fact that even if the appointment of the preferred candidate was illegal, e.g. B. because he was only appointed to the top of the authority because of his good (political) relationships (so-called office patronage ), it can no longer be repealed by way of a competitor lawsuit by the unsuccessful applicant.

Critical voices, on the other hand, affirm the possibility of a legal challenge against the appointment and reject the principle of office stability. They believe that the appointment of the other is an administrative act with a double effect, which burdens the competitor and is therefore contestable. The unappointed applicant was affected by the fact that the appointment without the possibility of cancellation creates an insurmountable barrier. This is justified in particular by the fact that otherwise the guarantee of legal protection protected by Article 19.4 of the Basic Law would be violated. According to this, the principle of office stability cuts the subjective right of the unsuccessful applicant to legal selection based on the criteria of Article 33.2 of the Basic Law (Article 33.2 of the Basic Law reads: Every German has equal access to according to his or her suitability, qualifications and professional performance every public office. ).

The problem began to move again when the Federal Administrative Court questioned the previous case law on the stability of offices in an obiter dictum on a decision of September 13, 2001 (DVBl. 2002, p. 203). This decision was seen as a "bang" (Battis) in the professional world and was welcomed by many. In a further current decision on the civil service law competitor lawsuit, the Federal Administrative Court has now determined that if the filling of the position with the competitor violates an interim order prohibiting this filling, the civil servant who wins the preliminary legal protection can pursue his application procedure claim in the main proceedings for a new decision on his application . However, this does not require the possibility of canceling the competitor's appointment, rather the employer has to create new positions (BVerwGE 118, 370). The Federal Administrative Court is of the opinion that this is possible under budget law. However, this aspect has not yet been fully discussed.

In any case, the Federal Administrative Court has not yet given the stability of offices the often requested rejection. However, the highest court rulings can rightly be accused of currently “lurching” on this.

literature

  • Josef Isensee : Access to the public service. In: Otto Bachof , Ludwig Heigl, Konrad Redeker (eds.): Administrative law between freedom, participation and commitment. Determination on the occasion of the 25th anniversary of the Federal Administrative Court. = 25 years Federal Administrative Court. Beck, Munich 1978, ISBN 3-406-03946-4 , pp. 337-356.
  • Ernst-Lüder Solte: On the competitor lawsuit in civil service law. In: New legal weekly . 1980, pp. 1027-1035.
  • Hellmuth Günther: Competitive dispute and no end? - Inventory of the personnel measure promotion. In: Journal for Civil Service Law . 1990, pp. 284-295.
  • Rainer Wernsmann : The civil service law competitor lawsuit. In: German administrative gazette . 2005, pp. 276-285.

Web links