implementation

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Implementation in Germany is the transfer of a different post to officials within the same authority . It is an in-house instruction and is permissible without legal requirements and without the consent of the official. The implementation can involve a change of place of work .

General

With the implementation, another office in the concrete-functional sense will be transferred. The post transferred through the implementation must be assigned to the office in terms of status law according to its value. The office in the legal status sense and the office in the abstract-functional sense remain unaffected by an implementation. A special legal basis for implementation is not necessary even if it involves a change of place of employment. As an internal instruction, the civil servant has to obey the implementation by virtue of his duty of obedience ( § 62 Paragraph 1 Sentence 2 BBG ).

purpose

As an internal organizational measure, the implementation of securing, facilitating or improving the execution of tasks by the authority serves. There is also an objective reason if the administrative officer does not adequately guarantee the execution of the tasks in the previous post and the operations are impaired as a result. In principle, a lack of probation in a post constitutes an objective reason for implementation.

Legal nature

In the absence of any external legal effect, implementation is not an administrative act . It is directed to the civil servant in his official function in the exercise of the employer's organizational power. Even if the implementation as an internal authority measure is not an administrative act, it can still violate civil servants in their individual legal sphere. The private interests of civil servants can e.g. B. from the area of ​​marriage and family protected by Art. 6 GG or the burdens associated with a change of place of employment must be taken into account according to the principle of proportionality.

discretion

The implementation lies in the dutiful discretion of the employer, who has to weigh the underlying business issues with the consequences for the professional career and private life of the person concerned. This discretion is wide; it includes every objective reason. However, it is limited by the requirement that the civil servant be assigned an officially appropriate job, by welfare considerations or by any assurance. In addition, the interests of the person concerned must be taken into account in accordance with the principle of proportionality . In contrast to the promotion, in which the interest of the civil servant in his professional development must also be taken into account, implementation is also permissible if the civil servant suffers losses in terms of reputation, promotion opportunities, number of employees, etc. as a result. Civil servants have no right to unchanged and undiminished exercise of the post assigned to them.

The implementation is a misuse of powers if it is based on in incorrect reasons or insufficient consideration of the interests involved. However, the dutiful exercise of discretion requires a uniformly practiced administrative practice of responding to breaches of official duties, which takes into account both the importance of the duty violated and the specific circumstances of the individual case.

Remedy

In this respect, the civil servants have legal recourse and the implementation can be judicially checked for misuse of discretion. In particular, it must be checked whether the employer complies with the legal principles restricting his discretion in his decision and whether he has not only put forward the reasons on which the implementation is based in order to justify the decision, which is actually based on other motives ( Section 114 VwGO ) . Objections and general action for performance are permitted against implementation , which have no suspensive effect. The admissibility requirement for the action is a special interest in legal protection ( Section 42 (2) VwGO). By way of an interim order , the civil servant concerned can request that the implementation cease for the time being or that it be reversed ( Section 123 (1) VwGO). The prerequisite for a successful application for an interim order is that the implementation order is obviously incorrect in judgment even after a summary examination and that the execution would lead to unreasonable and irreparable disadvantages.

Public service workers

For employees in the public service (collective bargaining employees ), the implementation is the transfer of another, equally rated job within the same department. The previous area of ​​responsibility of the employee can change in essential points. Implementation is understood to mean both the change of place of work within the company or the office, as well as the transfer of a different area of ​​responsibility, which is associated with certain changes that are not entirely insignificant. Insofar as the overall picture of the employee's activity does not change, the implementation can be enforced unilaterally by the employer within the framework of his right of direction . In principle, the employee has no right to a workplace close to home. The employer can determine the content, place and time of the work at its own discretion, unless these working conditions are stipulated by the employment contract, provisions of a works agreement, an applicable collective agreement or statutory provisions ( Section 106 sentence 1 GewO ). The term implementation is not used in the collective agreement for the public service , the collective agreement for the public service of the states and in the collective agreement for the public service of the state of Hesse . If there are tensions among the employees, the employer can relocate an employee without being obliged to issue a warning instead of an implementation.

Co-determination of the staff council

The staff council has to have a say in personnel matters of the civil servants and employees of the federal government in the implementation within the agency, if it is connected with a change of the place of employment ( § 75 Abs. 1 Nr. 3 Alt. 2; § 76 Abs. 1 Nr. 4 Alt . 2 BPersVG ). A change of place of work in this sense does not exist if the apartment is less than 30 kilometers away from the new place of work on a route usually traveled ( Section 75 Paragraph 1 No. 3 Alt. 2; Section 76 Paragraph 1 No. 4 Alt. 2 BPersVG in conjunction with Section 3 Paragraph 1 No. 1 lit. c BUKG ).

Examples

The Foreign Office is a unified authority. Foreign service officials will not be transferred to the German diplomatic missions, but will be relocated. The Federal Intelligence Service (BND) is to be regarded as a single agency in terms of administrative organization and civil service law. Therefore, measures in which a civil servant has to carry out his work for the BND in a different location and in a different post do not constitute a transfer, but an implementation.

Delimitations

The displacement is in contrast to the implementation of the transmission of a post with another service ( § 28 BBG ; § 15 BeamtStG ). A secondment is the temporary, full or partial transfer of an activity to another agency of the same or another employer while retaining the affiliation to the previous agency ( Section 27 (1) BBG ; Section 14 (1) BeamtStG ). The assignment corresponds to the secondment a public institution without employer's capacity or with another institution ( § 29 BBG; § 20 BeamtStG ).

In the area of ​​application of the Works Constitution Act (BetrVG), i.e. not in administrations and companies of the federal government, the states , the municipalities and other corporations , institutions and foundations under public law ( Section 130 BetrVG), implementations in the collective terms of the Works Constitution Act apply as a transfer within the meaning of Section 95 para. 3 BetrVG, as well as secondments.

soldiers

In the case of soldiers , the implementation corresponds to the change of post , provided the new post is at the same place of work ( political municipality ) as the old one and the post (unit level, e.g. company) remains the same.

Web links

Individual evidence

  1. ↑ a b c d implementation - civil service law -. Retrieved October 1, 2019 .
  2. ^ Decision - 2 B 23.12. In: https://www.bverwg.de/ . Federal Administrative Court , June 21, 2012, accessed on October 1, 2019 .
  3. ↑ a b c d Judgment - 2 A 1.07. In: https://www.bverwg.de/ . Federal Administrative Court , February 28, 2008, accessed on October 1, 2019 (margin no. 25).
  4. ↑ a b Judgment - 2 A 8.09. In: https://www.bverwg.de/ . Federal Administrative Court , May 26, 2011, accessed on October 1, 2019 (Rn. 21).
  5. ↑ a b Judgment - 2 A 8.09. In: https://www.bverwg.de/ . Federal Administrative Court , May 26, 2011, accessed on October 1, 2019 (No. 19).
  6. ↑ implementation. In: https://www.bund-verlag.de/ . Retrieved October 1, 2019 .
  7. ^ A b c Klaus Richar: The employer's right of direction in the public sector. In: https://www.dasbibliothekswissen.de/ . February 20, 2010, accessed October 1, 2019 .
  8. ^ Kai Litschen: Right of instruction, right of direction / 3.3 Place of work. In: https://www.haufe.de/ . Retrieved October 1, 2019 .
  9. ↑ Judgment - 2 A 1.07. In: https://www.bverwg.de/ . Federal Administrative Court , February 28, 2008, accessed on October 1, 2019 (marginal number 24).
  10. ↑ Guidelines on transfer, changing posts and commanding soldiers from March 3, 1988 (VMBl p. 76) - P II 1 - Az 16-26-04 / 4 - last amended by the decree of 9 June 2009 (VMBl. P . 86). beck-online, June 9, 2009, accessed October 1, 2019 .