13.04.2021 | KPMG Law Insights

“Corona-compliant” appointment of civil servants.

“Corona-compliant” appointment of civil servants.

Since the onset of the Corona pandemic, service providers have faced some challenges. One of them is the appointment of civil servants in compliance with distance requirements and hygiene concepts.

The appointment of civil servants is governed by Section 10 BBG for federal civil servants and Section 8 BeamtStG for state civil servants. The authority to appoint follows from the personnel sovereignty of the employer. It determines the type of civil servant relationship. After the appointment, the legal position thus acquired cannot be withdrawn without the consent of the civil servant, or only on the basis of special statutory provisions.

The problem already arises from the legal basis: the appointment is a legal act that establishes or modifies a civil servant relationship, requires cooperation, is not subject to conditions and requires a certain form. The prerequisite “in need of cooperation” is currently causing difficulties. Appointment as a civil servant is made pursuant to sec. 10 para. 2 sentence 1 BBG / § 8 para. 2 sentence 1 BeamtStG by issuing a certificate of appointment. The appointment is not effective until the document is handed over and accepted without reservation (so-called external effectiveness). Since legal certainty and legal clarity are particularly necessary in civil service law, this provision is an expression of the principle of documentary evidence applicable in civil service law.

The term “handover” is not defined by law. However, this is understood to mean that the person to be appointed must willingly obtain physical possession of the original document through the competent authority or a body appointed by it, i.e. accept it without reservation. This is usually done by the person to be appointed personally receiving the certificate of appointment. Deed delivery, however, is not without problems in times of Corona pandemic due to federal contact restrictions and standoff regulations. At present, it is difficult or undesirable for the authorized official to personally hand over the document to the future civil servant.

Therefore, the question for employers is whether there are alternatives to handing out the appointment certificate in person and how this can be done effectively.

First of all, it is significant that the original document must be handed over to the official. Delivery of a copy does not make the appointment effective. Even if this eliminates the “solemn delivery”, the delivery can be made in another way by formal delivery, for example by registered mail. In this case, however, it is necessary that the person to be appointed confirms by receipt that he/she has received the certificate, in order to exclude uncertainties about the time of delivery of the certificate of appointment and thus the time of effectiveness of the appointment. Service by simple letter or by way of substitute service pursuant to Sections 178, 180, 181 of the Code of Civil Procedure is therefore not possible – even in times of the Corona pandemic.

Delivery is therefore possible in different ways:

In the case of the so-called “registered letter with return receipt“, the sending employer receives a receipt with the signature of the civil servant on the return receipt. However, the problem here is that no one is obliged to accept the registered mail or to pick up a registered mail deposited at the post office. Although it can usually be assumed that the person to be appointed has an interest of his own in accepting or collecting the registered letter with the certificate of appointment, this disadvantage should be taken into account when deciding on the delivery of the certificate of appointment by registered letter with advice of receipt. If the registered letter is not picked up within the one week period, it will be returned to the recipient and an appointment will not be effective for lack of physical receipt of the appointment document. Since the return receipt only confirms that the envelope has been received by the recipient, it has little probative value, e.g. in court proceedings.

Further formal service may be effected by means of a postal delivery certificate. This is based on a delivery order. In this process, the document to be served, in this case the certificate of appointment, is handed over to the post office in a sealed envelope and the prepared form of the certificate of service. In this type of delivery, the date and time of delivery is noted on the document by the deliverer. The postal delivery certificate, which is an official document within the meaning of Section 418 of the Code of Civil Procedure, is completed and returned to the sender. This provides the employer with proof of receipt of the appointment document. The deliverer hands over the document to the official. However, in case of handing over the document to a person belonging to the household of the civil servant, the appointment is not yet effective due to the lack of physical receipt of the document by the person to be appointed.

However, electronic delivery of the certificate of appointment is also possible: the previous legal situation provided for an exclusion by operation of law for the transmission of the certificate in electronic form. This exclusion has no longer been standardized since the Third Act Amending Administrative Procedural Provisions of 2002. The conditions under which such service is permissible and the content requirements for this type of transmission are governed by the relevant provisions of the federal and state administrative procedure laws. In order to ensure legal certainty in this form of delivery of the appointment document, the explanatory memorandum to the Act stipulates that the signature must be a qualified electronic signature, as this is the only way to ensure the security of electronic administrative action.

Thus, even without the development of comprehensive hygiene concepts, employers have the possibility to make appointments effectively. Nevertheless, due to the “solemn effect”, it is desirable that appointments by personal certificate delivery will soon be possible again without major restrictions.

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