Press release no. 83/2019 of 13 November 2019

An opinion issued by the council for judicial appointments in a procedure for the election of federal judges cannot be challenged individually

A civil servant or judge who has been nominated for election as a judge at one of the supreme federal courts, but is not elected and who considers the opinion issued by the council for judicial appointments of the relevant federal court to be unlawful cannot challenge such opinion individually, but only in connection with an application for legal protection against the appointment of the candidates elected by the committee for the election of judges. This was decided by the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in Leipzig today.


The claimant is a federal civil servant. In 2013 and 2014, he was nominated for election as a judge at the Federal Court of Justice (BGH, Bundesgerichtshof). The council for judicial appointments at the Federal Court of Justice - the body for judicial participation in the election of judges at the Federal Court of Justice - stated in its two opinions that the claimant was "not apt". The claimant was not elected. He believes that the opinions of the council for judicial appointments were unlawful.


With his action, the claimant requests that the two opinions issued by the council for judicial appointments be repealed, or, subsidiarily, that they be declared to be unlawful. The action was unsuccessful in the lower instances. The Court of Appeal assumed that, for the main application, the claimant did not have a recognised legal interest in bringing proceedings and, for the subsidiary application, the claimant did not have an interest in a declaratory judgment.


The Federal Administrative Court dismissed the claimant's appeal on points of law. It held that a civil servant or judge who was nominated for election as a judge at a federal court but was not elected, and who believes that the opinion issued by the council for judicial appointments of that federal court is unlawful, cannot challenge such opinion individually. A nominee who is not elected in an election as a federal judge can obtain legal protection in this respect by filing an application for legal protection against the appointment of the candidates elected by the committee for the election of judges. In the course of such proceedings, the nominee can argue that the opinion issued by the council for judicial appointments was unlawful and can therefore not be a suitable basis for the election decision. However, there is no recognised legal interest in bringing proceedings with regard to an individual challenge aimed at repealing such an opinion or at declaring that it was unlawful. The opinion of the council for judicial appointments does not have any legal effects outside the procedure for the election of federal judges.


BVerwG 2 C 35.18 - judgment of 13 November 2019


Judgment of 13 November 2019 -
BVerwG 2 C 35.18ECLI:DE:BVerwG:2019:131119U2C35.18.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 13 November 2019 - 2 C 35.18 - para. 16.

An opinion issued by the council for judicial appointments in a procedure for the election of federal judges cannot be challenged individually

Headnotes

1. A civil servant or judge who has been nominated for election as a judge at one of the supreme federal courts, but is not elected and who considers the opinion issued by the council for judicial appointments of the relevant supreme federal court to be unlawful cannot challenge such opinion individually, but only as part of an application for interim measures against the appointment of the candidates elected by the committee for the election of judges.

2. The legal effects of an opinion issued by the council for judicial appointments are limited to the procedure for the election of judges. The opinion has no legal consequences for the selection and deployment decisions in other areas.

  • Sources of law
    Basic LawGG, Grundgesetzarticles 19 (4), 33 (2), 95 (2)
    German Judiciary ActDRiG, Deutsches Richtergesetzsections 55, 56, 57
    Act on the Election of JudgesRiWG, Richterwahlgesetzsection 13
    Code of Administrative Court ProcedureVwGO, Verwaltungsgerichtsordnungsection 44a
    Act on Federal Civil ServantsBBG, Bundesbeamtengesetzsection 112

Summary of the facts

The claimant requests that two opinions concerning him be repealed which were issued by the council for judicial appointments (Präsidialrat) at the Federal Court of Justice (Bundesgerichtshof) and in which he was considered to be "not apt" for the position of a judge at the Federal Court of Justice. Subsidiarily, he requests that the two opinions be declared to be unlawful.

The claimant is a ministerial counsellor (Ministerialrat) in the federal service and works at X. In 2006, he had already been nominated for election as a judge at the Federal Court of Justice. The performance appraisal by the President of X thereupon obtained stated that the claimant had exceptional aptitude for the tasks of a judge at the Federal Court of Justice. In its subsequent opinion, the council for judicial appointments at the Federal Court of Justice expressed "some doubt" as to whether the claimant would be able to fully satisfy the demands to be made on the work of a judge at the Federal Court of Justice, because he was lacking sound personal experience from working as a judge with a higher court of appeal. However, the opinion stated that, in view of his seven-year experience as a judge in the position of a presiding judge of various chambers of a regional court (Landgericht) and his responsible role at the X, the claimant was considered to be personally and professionally "apt" for the position of a judge at the Federal Court of Justice. The nomination was withdrawn in the same year.

For 2013, the claimant was once more nominated for election as a judge at the Federal Court of Justice. The performance appraisal by the President of X thereupon obtained once more stated that he had exceptional aptitude for fulfilling the tasks of a judge at the Federal Court of Justice. The opinion issued by the council for judicial appointments at the Federal Court of Justice on 20 February 2013 initially states, partly repeating verbatim the contents of the opinion from 2006, that, with said opinion, the council for judicial appointments, based on the appraisal standard applicable at the time, had expressed "severe doubts" regarding the claimant's aptitude for the position of a judge at a supreme federal court. Thereafter, the council for judicial appointments inter alia stated that, in spite of the claimant's broad legal knowledge, the concerns already expressed in 2006 regarding his aptitude for the position of a judge at the Federal Court of Justice had intensified. The opinion stated that, in consideration of all pertinent circumstances, the council for judicial appointments was therefore of the opinion that the claimant was "not apt" for the position of a judge at the Federal Court of Justice. The claimant was not elected as a federal judge in 2013.

With his written statement of 19 February 2014, the claimant filed an objection (Widerspruch) against the opinion issued by the council for judicial appointments on 20 February 2013.

For 2014, the claimant was again nominated for election as a judge at the Federal Court of Justice. In view of his objection against the opinion issued by the council for judicial appointments in the previous year, another opinion by the council for judicial appointments was obtained for this election of federal judges. In this opinion of 23 April 2014, the council for judicial appointments maintained its opinion of 20 February 2013. It stated that the claimant's field of tasks had not changed, that no new appraisal had been prepared, and that the claimant had not utilised the opportunity of a new personal interview, nor had he submitted the requested work samples. It held that there was therefore no reason to deviate from the opinion of 20 February 2013. The claimant was not elected as a federal judge in 2014 either.

In its objection notice of 30 June 2014, the Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz) rejected the claimant's objection as inadmissible, as the opinion issued by the council for judicial appointments could not be challenged.

Following this, the claimant initiated proceedings through various applications for interim measures which were either not successful before the Administrative Court (Verwaltungsgericht) and the Higher Administrative Court (Verwaltungsgerichtshof), or were discontinued by said Courts after a mutual declaration by the parties to terminate the proceedings. For 2015 and the following years, the claimant was not nominated for election as a judge at the Federal Court of Justice.

The action filed in the main proceedings with the applications to repeal the opinions issued by the council for judicial appointments at the Federal Court of Justice on 20 February 2013 and on 23 April 2014 as well as the objection notice issued by the Federal Minister of Justice and Consumer Protection on 30 June 2014, or, subsidiarily, to declare that the two opinions were unlawful and infringed the claimant's rights, was not successful in the two lower instances. The Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) dismissed the claimant's appeal on points of law. 

Reasons (abridged)

12 The appeal on points of law is without merit. (...)

18 A civil servant or judge who is nominated for election as a judge at a supreme federal court and who believes that an opinion issued by the council for judicial appointments as part of the ongoing election procedure violates his or her rights can apply for interim measures in the procedure for the election of federal judges; covered by the scope of application of article 33 (2) of the Basic Law (GG, Grundgesetz) - with modifications due to the election procedure pursuant to article 95 (2) GG - are, in particular, the positions of federal judges as well as the positions of the judges in the service of one of the federal states (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 20 September 2016 - 2 BvR 2453/15 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 143, 22 first headnote and para. 21). However, an opinion issued by a council for judicial appointments cannot be challenged individually as a matter of principle. This applies to the period during an ongoing procedure for the election of federal judges in order to avoid imminent disadvantages as well as to the period following this in order to avoid potential future disadvantages. And it also applies to a request aimed at repealing the opinion as well as to a request aimed at declaring that the opinion was unlawful.

19 a) An action brought by a candidate who was not successful during the election procedure for the position of a federal judge which is aimed at repealing an opinion on said candidate issued by the council for judicial appointments with a view to being elected in such procedure for the election of a judge is precluded by section 44a first sentence of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung). According to section 44a first sentence VwGO, legal remedies against administrative procedural acts by authorities may only be asserted at the same time as legal remedies which are admissible against the decision on the matter. According to section 44a second sentence VwGO, this shall not apply if administrative procedural acts may be enforced or issued against a party which is not involved.

20 As the Court of Appeal correctly assumed, an opinion issued by the council for judicial appointments constitutes an administrative procedural act within the meaning of section 44a first sentence VwGO and cannot be executed within the meaning of section 44a second sentence VwGO. It can only be contested as part of an application for the protection against a competitor filed against the appointment of one or more of the elected candidates.

21 The opinion issued by the council for judicial appointments is an act of judicial participation in a personnel-related decision, associated with the election of judges. Before a judge is appointed or elected, the council for judicial appointments of the court at which the judge is to be deployed shall be asked to participate in the matter (section 55 first sentence of the German Judiciary Act (DRiG, Deutsches Richtergesetz)). The highest service authority requests the opinion of the council for judicial appointments (section 56 (1) first sentence DRiG). The council for judicial appointments delivers a written opinion with reasons on the candidate's or judge's personal and professional aptitude (section 57 (1) first sentence DRiG). The opinion is to be placed in the personal file (section 57 (1) second sentence DRiG).

22 The opinion of the council for judicial appointments - as well as the performance appraisal - is an element with relevance regarding the election and selection in the procedure for the election of federal judges. According to the jurisprudence of the Federal Constitutional Court (decision of 20 September 2016 - 2 BvR 2453/15 - BVerfGE 143, 22 para. 32 et seqq.), it enables the committee for the election of judges and the competent minister to assess the candidate's aptitude for the position of a federal judge that is to be filled. The special significance of the opinion lies in the fact that for all candidates, who may come from different federal states (see article 36 GG) and professional fields (judiciary, lawyers, administration, universities, etc.) and for whom performance appraisals may have been prepared - if at all - on the basis of differing appraisal guidelines, the council for judicial appointments of the respective supreme federal court is the only body in the procedure for the election of judges designated to issue an expert assessment of the relevant candidate's aptitude, applying a uniform standard and based on the council's own knowledge of the requirements of the relevant position. Even though the committee for the election of judges and the minister are not bound by it, they have to take the assessment into consideration and the minister has to provide grounds should he or she approve the election of a person whom the opinion of the council for judicial appointments holds to not be apt.

23 An opinion of a council for judicial appointments is prepared - and it has to be stressed: exclusively - for the procedure for the election of federal judges, and its legal effects are limited to the procedure for the election of federal judges. It has no legal consequences for selection and deployment decisions in other areas. An opinion of a council for judicial appointments includes an aptitude forecast for the candidate in relation to the position to be filled. However - deviating from a performance appraisal - it is not based on an appraisal of the personal performance for a defined (appraisal) period; the basis of the aptitude forecast in the opinion of the council for judicial appointments rather is the candidate's curriculum vitae, his or her performance appraisals, work samples and the impression from the interview with the council for judicial appointments and, if applicable, its chairperson. The opinion of a council for judicial appointments is prepared by a body ensuring the participation of judges, not by the superior acting for the employer in his or her function as the person responsible for the aptitude forecast for a position to be filled - whether as part of a selection decision or as part of a performance appraisal.

24 An exception from section 44a first sentence VwGO is not required in this respect, also in view of article 19 (4) first sentence in conjunction with article 33 (2) GG. The reason for this is that the affected person has not incurred unreasonable disadvantages, as he or she has the option of legal protection against the appointment of a competitor (by applying for interim measures). According to the jurisprudence of the Federal Administrative Court (judgments of 15 November 1984 - 2 C 29.83 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 70, 270 <fourth headnote and p. 277 et seq.> and of 19 June 1997 - 2 C 24.96 - BVerwGE 105, 89 <91> with further references) which has been confirmed by the Federal Constitutional Court (decision of 20 September 2016 - 2 BvR 2453/15 - BVerfGE 143, 22 para. 34), what is subject to direct judicial review is not the election act of the committee for the election of judges but the minister's decision under section 13 of the Act on the Election of Judges (RiWG, Richterwahlgesetz) on whether or not to approve a candidate elected by the committee for the election of judges. In these proceedings contesting the appointment of a competitor (Konkurrentenstreitverfahren) - with the minister's decision pursuant to section 13 RiWG as the contested object - it will also be examined whether objections raised against an opinion of the council for judicial appointments are valid. Should this be the case, the election of federal judges has been carried out on an inadequate factual basis and has to be retaken - after the deficiency has been remedied. In such cases, the opinion of the council for judicial appointments, which was based on an error of law, is replaced by a new opinion in the course of the ongoing procedure for the election of federal judges.

25 b) After the selected candidates have been appointed, legal protection regarding the respective election of federal judges for the nominated candidates who were not elected is regularly ruled out, due to the principle of stability of office (Grundsatz der Ämterstabilität) (see BVerwG, judgment of 4 November 2010 - 2 C 16.09 - BVerwGE 138, 102 para. 27, 30 et seqq.). This applies to proceedings contesting the appointment of a competitor - which are admissible as a matter of principle -, and also to the individual challenge of the opinion of a council for judicial appointments which is precluded by section 44a VwGO - at least prior to the final decision on the matter.

26 c) Furthermore, individual challenge of the opinion of the council for judicial appointments alone is ruled out and inadmissible due to the absence of a recognised legal interest in bringing proceedings if the person concerned has failed to use the options of legal protection against the outcome of such elections with regard to the years in which he or she was nominated for election.

27 The opinion of the council for judicial appointments of a supreme federal court as part of the election of federal judges can only be contested as part of challenging the outcome of the specific election. If the person interested in being elected as a federal judge fails to challenge the outcome of this specific election with regard to the opinion of the council for judicial appointments which is unlawful in his or her opinion, a subsequent judicial review of the opinion of the council for judicial appointments is ruled out, provided that the relevant opinion of the council for judicial appointments will not be called upon again as its three-year "validity period" (more on this under e) below) has expired. The reason for this is that the person concerned has failed to use the options that would have been open to him or her in view of his or her actual objective of obtaining a review of the lawfulness of the opinion of the council for judicial appointments.

28 d) Individual challenge of the opinion of a council for judicial appointments in view of anticipated future disadvantages - aimed at repealing the opinion or declaring that it is unlawful - is not admissible either. In substance, this is a request to be granted preventative legal protection, which is not necessary because sufficient and efficient interim measures are available.

29 aa) This applies, on the one hand, to anticipated disadvantages in future elections of federal judges.

30 A nominated candidate who is not elected can contest the approval of the competent federal minister of the appointment of the elected candidate that he or she considers to be based on the legally erroneous basis of the unlawful opinion of the council for judicial appointments by requesting legal protection (by way of interim measures) in the procedure for the election of federal judges as part of which the opinion of the council for judicial appointments is prepared. As shown above - if he or she is successful with this request, a new opinion by the council for judicial appointments is prepared for the ongoing procedure for the election of judges which then - if the relevant candidate is once more not elected even after a new opinion by the council for judicial appointments has been prepared - can be used in future procedures for the election of judges.

31 If the nominated candidate who was not elected has failed to seek legal protection (by way of interim measures) in the ongoing election procedure, he or she can nevertheless assert the erroneousness of the relevant opinion issued by the council for judicial appointments during subsequent procedures for the election of federal judges, by way of proceedings contesting the appointment of a competitor. This means that if, in spite of the objection by the relevant candidate, the same opinion of the council for judicial appointments is again used as a basis in a subsequent procedure for the election of federal judges rather than being replaced by a new opinion, the nominated candidate who was not elected in such subsequent procedure for the election of federal judges can take action against this by seeking legal protection against the appointment of a competitor by way of interim measures.

32 Preventative legal protection via a request to repeal the opinion or to declare that is was unlawful is therefore not necessary. Compared with preventative legal protection, interim measures are the easier approach. However, the nominated candidate who was not elected is under an obligation to obtain, in a timely manner, knowledge of the opinion of the council for judicial appointments and/or its renewed use in a subsequent procedure for the election of federal judges.

33 bb) The same applies, on the other hand, to disadvantages anticipated outside of elections of federal judges - i.e. with regard to other decisions on deployments and promotions - caused by an opinion of a council for judicial appointments considered to be legally erroneous.

34 As shown above, an opinion by a council for judicial appointments has no legal consequences for deployment and promotion decisions apart from the election of federal judges. If - unlawfully - legal conclusions are nevertheless drawn from it in the context of other deployment and promotion decisions, the person adversely affected by such decision can seek judicial protection in this respect. Preventative legal protection is not required.

35 e) When applying the above principles, the individual challenge of the opinions from 2013 and 2014 of the council for judicial appointments at the Federal Court of Justice by way of action is inadmissible in the case in dispute here from a variety of perspectives, including under all aspects cited by the claimant.

36 aa) Firstly, such action is precluded by section 44a first sentence VwGO. An opinion by the council for judicial appointments cannot be challenged individually before the courts, but only as part of an application for interim measures against the appointment of the candidates elected by the committee for the election of judges.

37 bb) The claimant furthermore does not have a general recognised legal interest in bringing proceedings, as, in accordance with the procedural practice of the committee for the election of judges as established by the Court of Appeal, an opinion of the council for judicial appointments is replaced by a new opinion after three years at the latest. As this three-year "validity" period of the opinions of the council for judicial appointments at the Federal Court of Justice from the years 2013 and 2014 has elapsed, the claimant no longer has a need to have these opinions reviewed by a court. He had the possibility of obtaining sufficient legal protection (by way of interim measures) - directed against the minister's decision pursuant to section 13 RiWG, including an incidental review of the opinion issued by the council for judicial appointments - in 2013 and 2014, i.e. when the opinions were "valid" and when he was unsuccessfully nominated for election as a judge at the Federal Court of Justice.

38 Had the claimant contested the outcome of the election of the judges for the Federal Court of Justice in 2013 and 2014 by means of an application for the issuance of an interim order, his submission that the opinion issued by the council for judicial appointments at the Federal Court of Justice was unlawful would also have been reviewed. The reason for this is that the opinion of the council for judicial appointments must be taken into consideration both by the committee for the election of judges as part of the election as such, as well as by the competent federal minister as part of the decision on the approval under section 13 RiWG incumbent upon him or her.

39 In the present case, the claimant initiated various proceedings for the issuance of interim measures; however, all of them were terminated in other ways than by decision on the merits or have remained unsuccessful, without the courts having decided on the lawfulness of the opinion issued by the council for judicial appointments. In these proceedings for the issuance of interim measures, the claimant furthermore only requested that the defendant be provisionally prohibited from appointing elected candidates until the claimant had been granted access to specified documents relating to the procedure for the election of judges, and that the defendant furthermore be ordered to provisionally remove the two opinions of the council for judicial appointments from the candidacy file and to refrain from taking them into consideration during a (subsequent) election on 6 November 2014, as well as to provisionally order the defendant to nominate him for election as a judge at the Federal Court of Justice in a subsequent election. At no point in time did the claimant file an application for the issuance of an interim order aimed at provisionally, until the issuance of a new decision by the competent minister pursuant to section 13 RiWG (after obtaining a new opinion from the council for judicial appointments at the Federal Court of Justice and after a new election procedure in the committee for the election of judges), prohibiting the defendant from appointing the candidates elected by the committee for the election of judges. Therefore, he failed to make use of the legal protection available to him.

40 cc) Furthermore, the claimant's fear of legal disadvantages for deployment and promotion decisions does not lead to a recognised legal interest for the individual challenge of the two opinions issued by the council for judicial appointments at the Federal Court of Justice in 2013 and 2014. Should these materialise, he would be able to take action against the deployment or promotion decision issued to his detriment, and would be able to assert the legally erroneous use of the opinions of the council for judicial appointments as part of such proceedings.

41 dd) In as far as the claimant, purely due to the existence of the opinion issued by the council for judicial appointments (which he believes to be erroneous), anticipates factual disadvantages for future other deployment and promotion decisions where the opinion - as shown above - does not (and must not) have any legal consequences, his request is precluded by the argument that such factual disadvantages (for instance in the form of "hearsay" circumstances) - if and as far as they are legally "tangible" at all - can no longer be eliminated because the claimant failed to make use of an application for interim measures available to him (legal protection against the appointment of a competitor by way of interim measures) against the decision to not elect him. The fact that the claimant unsuccessfully participated three times in procedures for the election of federal judges cannot (or can no longer) be "eradicated". The same applies to the mere existence of the opinions of the council for judicial appointments prepared in each case, two of which the claimant considers to be erroneous, but the use of which in the procedure for the election of federal judges he failed to prevent by means of an application for interim measures available to him to this end.

42 Moreover, the fact as such that a nominated candidate is not elected by the committee for the election of judges and the fact as such that an unfavourable evaluation of the candidate is included in an opinion of the council for judicial appointments constitute personal data for all persons involved in the proceedings, which are therefore subject to the obligation of secrecy under the law on civil servants and the duty of confidentiality and protection of personnel data under the law on personnel files (see section 67 (1), sections 106 et seqq. of the Act on Federal Civil Servants (BBG, Bundesbeamtengesetz)). If these facts become (or, as in the claimants case, have become) known at all to a group of persons going beyond this who may be interested in such circumstances, both facts - on their own - are neither defamatory nor otherwise constitute a violation of the right of personality (to this effect, see f) below). Finally, a federal civil servant (including the claimant) can, if not completely eliminate, at least reduce the risk of future factual disadvantages of an opinion of a council for judicial appointments, also outside the proceedings for judicial protection, by filing an application pursuant to section 112 (1) first sentence no. 2 BBG aimed at the removal of the opinion of the council for judicial appointments and its destruction. In this way, he can prevent other persons obtaining knowledge of the fact as such that he was not elected and, even more so, of the specific content of the opinion of the council for judicial appointments (which he believes to be unlawful).

43 f) It was not necessary to decide whether or not a recognised legal interest in bringing proceedings with the aim of repealing an opinion of a council for judicial appointments, or a justified interest in declaring that such opinion is unlawful exists if a violation of the right of personality (article 2 (1) in conjunction with article 1 (1) GG) or other violation of basic rights through the opinion of the council for judicial appointments is asserted. The reason for this is that such violation of rights can obviously be ruled out in the present case. It does in particular not result from the assessment made by the council for judicial appointments at the Federal Court of Justice that the claimant was "not apt" for the position of a judge at the Federal Court of Justice. The decision that a candidate lacks aptitude for a specific position - just as the failure to pass a test etc. - as such is not defamatory, nor does it otherwise constitute a violation of the right of personality.