I. Legal background
According to Section 62 para. 1 sentence 2 of the Federal Civil Service Act, civil servants are obliged to carry out the official orders of their superiors and to follow their general guidelines. This duty of compliance also applies in particular to state, district and municipal civil servants in accordance with Section 35 para. 1 sentence of the Civil Service Status Act. This is a core duty under civil service law that is rooted in the traditional principles of the civil service within the meaning of Article 33 para. 5 of the German Basic Law. Breaches of the obligation to follow up can result in disciplinary measures. In any case, the duty to comply does not apply if civil servants are not bound by instructions under special statutory provisions and are only subject to the law (see Section 62 para. 1 sentence 3 of the Federal Civil Service Act, Section 35 para. 1 sentence 3 of the Civil Service Status Act). Civil servants must immediately raise any concerns about the legality of official orders through official channels (Section 63 para. 2 sentence 1 of the Federal Civil Service Act, Section 36 para. 2 sentence 1 of the Civil Service Status Act).
A legal basis is required to assess the legality of an official instruction if the instruction interferes with constitutionally protected interests of the civil servant (see OVG Bautzen, decision of 30.01.2020 - 2 B 311/2019 -). Section 22 of the Schleswig-Holstein State Civil Servants Act must be taken as a basis for further training measures. According to this, civil servants are obliged to take part in in-service training and to undertake further training themselves. The employer must take suitable measures to ensure that civil servants receive further training.
II Decision of the VG Schleswig
In a case constellation to be decided by the VG Schleswig, the applicant had submitted an application for recreational leave pursuant to Section 2 para. 1 of the Recreational Leave Ordinance. The applicant had argued, among other things, that he needed to take this leave in order to complete his bachelor's degree in computer science. Otherwise, he would not be able to meet the deadline for submitting a chapter of his thesis. However, he also conceded that he would also be able to work on it while on duty.
The applicant applied to the VG Schleswig for an interim injunction ordering the defendant to ensure that he could take a certain period of leave and therefore be absent from work.
The VG Schleswig rejected the application. The applicant had not made a sufficiently credible case that he would suffer serious and unreasonable disadvantages that could not otherwise be avoided. The course only covered a period of less than three weeks and took place at the applicant's place of residence and work. Even if non-participation in the course would result in a disciplinary measure, the applicant would not suffer any unreasonable disadvantage by waiting for a decision on the merits. Furthermore, the task of the administrative court summary proceedings is not to "legally safeguard the conduct of a civil servant in advance in such a way that he is protected from possible disciplinary proceedings".
III Legal consequences
Training measures are also important in the civil service. However, the civil servant's obligation to undergo further training is subject to certain limits. If civil servants wish to defend themselves against a training order, only urgent legal protection will regularly be considered. The standard of review is then primarily whether participation in the training is unreasonable for the civil servant. All circumstances of the individual case will be evaluated. The decision makes it clear that weighty reasons must be presented for this. Potential disciplinary measures associated with non-compliance with the official order are not sufficient.
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