I. Legal background
According to Art. 33 para. 2 GG, every German has equal access to every public office on the basis of his or her aptitude, ability and professional performance. With this provision, the constitutional legislator has enshrined the principle of selecting the best candidates in constitutional law. Accordingly, the standard is also the starting point for so-called competitor disputes, on which extensive case law has developed.
This primarily concerns the legal protection of unsuccessful applicants. They are confronted with the situation that another applicant may be appointed as a civil servant and that the principle of stability of office therefore precludes the appointment of the unsuccessful applicant. In view of this problem, case law has placed the principle of effective legal protection of the applicant in the foreground (see in particular Federal Administrative Court, judgment of November 4, 2010 - BVerwG 2 C 16.09).
II Decision of the VG Schleswig
In a case situation to be decided by the VG Schleswig, an applicant had essentially requested that the defendant be obliged to fill an advertised position with someone other than him until a new decision on his applicants had been made in accordance with the court's legal opinion. The VG Schleswig rejected this application. There were already no grounds for an injunction. With his application, the applicant was only requesting that a post be kept vacant. In contrast, it was not a (possible) status-changing appointment of a competitor (competition for promotion). When filling a post, no fait accompli is created, as the appointment of an applicant can be reversed. It is also not a so-called promotion post. The defendant had also not yet made a selection decision in favor of another applicant - it was therefore reasonable for the applicant to wait for a new selection procedure. In the event that he is unsuccessful, the applicant can apply for urgent legal protection. Furthermore, there was also no entitlement to an injunction, as the defendant had rightly considered the defendant to be more suitable for the desired position than the applicant.
III Legal consequences
The decision makes it clear that the timing can also be important in competitor disputes. An unsuccessful applicant should seek urgent legal protection at the latest when he is informed of the rejection. On the other hand, it is generally not possible to keep a post vacant in summary proceedings.
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