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23.10.2019 | KPMG Law Insights

VGH Munich – Extension of temporary civil servant status

VGH Munich – Extension of temporary civil servant status

Facts:

The legal dispute deals with the question of whether a university professor with a temporary civil servant appointment has a legal claim to a conversion of her civil servant status to lifetime civil servant status. After the plaintiff had filed an application to have her temporary civil service relationship extended, the university informed her that a possible conversion into a permanent civil service relationship and also an extension of the previous civil service relationship would not be considered. The plaintiff objected to this. In a decision dated March 28, 2019 (AZ.: 7 CE 19.557), the Bavarian Administrative Court dismissed the appeal against the decision of the Regensburg Administrative Court and upheld its decision.

Reasons for Decision:

As a rule, professors are appointed as civil servants for life. Exceptions may be made to this lifetime principle if objective reasons justify a deviation from the rule. For the existence of an objective reason, only the time of the establishment of the temporary civil service relationship is decisive. The appointment of the applicant as a professor with a temporary civil servant status was justified at the time with a predicted special need due to the high number of students as a result of the double Abitur year. If, however, it turns out in retrospect that the original prognosis is not correct, i.e. the need that served as justification for the temporary civil servant relationship in this case is not only of a temporary nature, the job holder cannot derive any rights for herself from this. Also from Art. 33 para. 5 GG or Art. 8 Para. 2 Sentence 5 Bavarian Higher Education Personnel Act (BayHSchPG), which regulates the conversion of a temporary civil servant relationship into a civil servant relationship for life, in the opinion of the court no legal claim to conversion into a civil servant relationship for life or the implementation of an aptitude assessment procedure as its preliminary stage would result. Rather, the employer decides within the scope of its broad organizational discretion whether and at what point in time a conversion takes place. Likewise, the employer has the discretion to reopen the vacant professorship and to fill it with a tenured civil servant.
Significance for practice: Unlike the probationary civil servant status, the temporary civil servant status is not based on a later appointment to the civil servant status for life. The Administrative Court emphasizes that the employer – irrespective of the existence of an objective reason at the time of the establishment of the civil servant relationship – can in principle decide without discretionary powers within the scope of the organizational authority to which it is entitled whether, at what time and in what form a position is to be filled. With a view to the selection of the best, it is also not objectionable if a university advertises a vacant tenured professorship after the termination of a civil service contract in order to expand the group of potential applicants.

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