I. Legal background
The traditional principles of the civil service (Art. 33 para. 5 GG) give civil servants the right to employment appropriate to their office. According to the case law of the Federal Administrative Court, civil servants can demand "that they be assigned functional offices, on the one hand an abstract-functional office and on the other hand a concrete-functional office, i.e. a corresponding post. i.e. a corresponding post, the value of which corresponds to their office in terms of status law" (BVerwG, decision of 31.07.2019 - BVerwG 2 B 56.18 -, para. 7). This applies equally to all civil servants, in particular federal, state, district and municipal civil servants.
However, in certain situations it may be necessary to prohibit a civil servant from conducting official business. The reasons for this can be manifold, but essentially the aim is to avert imminent harm. To this end, the legislator has provided in Section 66 of the Federal Civil Service Act (for federal civil servants) and Section 39 of the Civil Service Act (in particular for state, district and municipal civil servants) that the highest official authority or the authority designated by it can prohibit a civil servant from conducting official business for compelling official reasons. The purpose of the regulation is primarily to effectively avert danger (under employment law). However, the legislator has not defined the conditions under which "compelling official reasons" exist. This is an undefined legal concept that is subject to full judicial review.
II The decision of the VG Schleswig
In its urgent decision of 19.09.2023, theVG Schleswig (case reference: 12 B 45/23)had the opportunity to specify the requirements of Section 66 of the Federal Civil Service Act. According to this, compelling reasons are generally given "if the continued performance of duties by the civil servant in his previous post would significantly impair the operation of the service or if other serious disadvantages in the service were to be seriously feared." In view of the disadvantages to be feared, it must not be reasonable for the employer to wait for the final clarification and decision. As in other areas of security law, it does not depend on whether the individual civil servant is at fault.
In this case, the respondent had based its decision on the state of health of the civil servant and stated that it was not possible to restore the civil servant's full capacity to work in the police or general administrative service within the relevant time limits. Based on a socio-medical report, the respondent was also convinced that the civil servant was unfit for duty. He had also rejected various offers of reintegration from the respondent and had not attempted to offer his services to the respondent. The employer could therefore have declared a retirement order to be immediately enforceable instead of issuing a ban in accordance with Section 66 of the Federal Civil Service Act. The VG Schleswig also did not understand the purpose of the prohibition under § 66 of the Federal Civil Service Act, as the retirement was not merely considered and time was needed for a final examination of the facts.
III Legal consequences
The decision makes it clear that bans on conducting official business are only permissible under certain conditions. In particular, the employer must check whether there are "compelling legal grounds" for a ban. Furthermore, the principle of proportionality must also be observed. In the case of incapacity to work, the relationship between a retirement order and a ban on conducting official business must be taken into account in particular.
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