The applicant who was born in 1970 has been employed by the respondent (the Federal Republic of Germany) since the year 1991. He is a civil servant at the top level office of the career path of intermediate service (Amtsinspektor) and is processing matters relating to the pay of civil servants at his post.

In the years 2014 to 2017, the applicant had a higher number of illness-related periods of absence: In the year 2014, the applicant was absent 80 days due to illness, in the year 2015, he was absent 36 days, in the year 2016, 66 days and in the year 2017, 127 days, 111 days of which were in the second half of the year 2017. Starting from 10 April 2018, the applicant has been sick without interruption.

In a letter dated 6 June 2018, the respondent requested the applicant to have himself examined by a public health officer "due to illness-related periods of absence since 10 April 2018 and the increased periods of absence during the last year"; at the same time the respondent kindly requested him "to undergo an additional medical examination if the public health officer should order such an examination". On 17 July 2018, the applicant was examined by the public health officer at the Munich District Commissioner's Office (Landratsamt).

In a letter dated 25 July 2018, the District Commissioner's Office - Public Health Office - informed the applicant that after inspection of the documents now available an additional specialist psychiatric examination would be necessary and requested him to sign and return the attached declarations of consent for such an additional specialist psychiatric examination.

In his letter to the District Commissioner's Office of 10 August 2018, the applicant asked for the reasons and legal basis for the additional examination since he considered this to be an interference with his general right of personality. He also pointed out the fact that only his employer could order an additional examination.

In a letter dated 20 August 2018, the District Commissioner's Office informed the applicant that an additional psychiatric report was necessary in order to finalise the report of the public health officer. The certificate of the applicant's psychiatrist was not sufficient. The additional report was addressed to the Public Health Office and was subject to medical confidentiality.

In a letter dated 28 August 2018, the respondent requested the applicant to promptly submit the declaration of consent for an additional examination by a medical specialist.

The applicant requests interim measures against the additional examination by a medical specialist. He is of the opinion that the examination by a public health officer interferes with his general right of personality protected as a fundamental right under article 2 (1) in conjunction with article 1 (1) of the Basic Law (GG, Grundgesetz). He claims that one cannot tell him to violate a duty created by the order first and then to oppose to the order based on the argument that it contains legal errors only in the subsequent (disciplinary) proceedings. He says he also had a right to an interim order. Neither the original examination request dated 6 June 2018 nor the additional order issued on 28 August 2018 met the requirements for an examination request developed by jurisprudence, in particular by the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht). It should be noted, according to the applicant, that a higher standard applies for specialist psychiatric examinations and a deficient reasoning cannot be remedied by giving reasons subsequently.

At the latest in its order of 28 August 2018 the respondent would have had to disclose and determine the reason, type and scope of an additional examination in the field of psychiatry.

The Federal Administrative Court rejected the application for interim measures requesting to release the applicant from the obligation to have the additional psychiatric examination performed by a medical specialist based on the medical examination order dated 6 June and 28 August 2018.

15 The application for the issuance of an interim order (section 123 (1) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)) submitted to the Federal Administrative Court which has jurisdiction in this matter in accordance with section 50 (1) no. 4 VwGO as the court of first instance is unsuccessful. The application is inadmissible in accordance with section 44a VwGO (1.). It would moreover also be without merit since the applicant has not been able to substantiate that he has a right to an interim order (2.).

16 1. The application is inadmissible in accordance with section 44a VwGO.

17 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. This shall not apply under section 44a second sentence VwGO if administrative procedural acts may be enforced or issued against a party which is not involved.

18 After raising the question of the possibility of challenging a medical examination order in an isolated manner in court in its decision of 10 April 2014 - 2 B 80.13 - (...) para. 17 with reference to the jurisprudence of higher administrative courts, the Senate now answers this question to the effect that a medical examination order to determine the fitness for duty of a civil servant within the framework of a forced retirement procedure may not be challenged individually in court in accordance with section 44a VwGO and an application for legal protection against such an order is therefore inadmissible. This emerges from the following considerations:

19 a) The application for the issuance of an interim order is a legal remedy within the meaning of section 44a first sentence VwGO. With regard to the purpose of the provision not to delay or complicate the decision on the matter by legal disputes concerning procedural acts (explanatory memorandum for the bill of the Federal Government, Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 7/910 p. 97 et seq.; see also BVerwG, judgment of 27 May 1981 - 8 C 13.80 - (...)), applications for temporary relief under sections 80, 80a VwGO or section 123 VwGO are also excluded since the protection afforded by means of temporary relief may not be broader than that in the ordinary proceedings (see BVerwG, decision of 21 March 1997 - 11 VR 2.97 - (...)).

20 b) A medical examination order is an administrative procedural act within the meaning of section 44a first sentence VwGO. Regardless of whether they have the character of an administrative act, administrative procedural acts within the meaning of section 44a first sentence VwGO are acts of authorities related to an administrative procedure already started and not yet concluded and that serve to prepare a regulatory decision on the matter (BVerwG, judgment of 20 October 2016 - 2 A 2.14 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 156, 193 para. 14 with further references). Because there is no direct external legal effect, a medical examination order which is an instruction containing both official and personal elements, is not an administrative act but a physical act (Realakt) (BVerwG, judgment of 26 April 2012 - 2 C 17.10 - (...) para. 14 et seq.). The examination is used to determine the medical data needed in order to establish whether the civil servant is no longer fit for duty. Based on this determination to be made by the employer, the administrative procedure for forced retirement is continued, as the case may be (...). The request for an examination is therefore a first step in a staged procedure which ends when a declaration of unfitness for duty is made resulting in forced retirement (BVerwG, judgment of 30 May 2013 - 2 C 68.11 - BVerwGE 146, 347 para. 16 (...)). The fact that this decision which ends the procedure is not delayed above and beyond the upstream procedural step by judicial disputes that take time and administrative expenditure is precisely the purpose of section 44a VwGO. This purpose of acceleration is not only in the public interest of having a functional public administration staffed with personnel fit for duty (articles 33 (4) and (5), 83 et seqq. GG), but also in the well-understood interest of the civil servant who might not be willing or able to objectively assess his or her (real) state of health and to give due effect to the necessary consequences. Working towards the latter is moreover also a result of the duty of care of the employer (section 78 of the Act on Federal Civil Servants (BBG, Bundesbeamtengesetz), section 45 of the Act on the Status of Civil Servants (BeamtStG, Beamtenstatusgesetz)).

21 c) There is no exception in which an isolated legal remedy against an administrative procedural act would be admissible under section 44a second sentence VwGO. In particular, the medical examination order is not enforceable within the meaning of the administrative enforcement laws (see, for example, section 6 (1) of the Administrative Enforcement Act (VwVG, Verwaltungs-Vollstreckungsgesetz). It is especially not enforced by forcing the civil servant to undergo a medical examination.

22 Nor does article 19 (4) first sentence GG require that the application for the issuance of an interim order be deemed to be admissible when interpreting section 44a second sentence VwGO in conformity with the constitution.

23 aa) article 19 (4) first sentence GG guarantees a citizen's right to an actually effective judicial review of the respective burdensome administrative decision (established jurisprudence, see only Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 19 June 1973 - 1 BvL 39/69 and 14/72 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 35, 263 <274>). This guarantee is usually sufficiently taken into account by the fact that deficiencies relating to administrative procedures, which cannot be directly asserted by means of a legal remedy against the procedural act due to section 44a VwGO, may still be challenged as part of an admissible action against the decision on the matter and will be will subject to judicial review. However, the exclusion of judicial review of procedural acts must not lead to unreasonable disadvantages for the person seeking legal protection that can no longer fully be remedied in later proceedings (BVerfG, decisions of 28 May 1952 - 1 BvR 213/51 - BVerfGE 1, 322 <324 et seq.>, of 23 June 1981 - 2 BvR 1107/77 et al. - BVerfGE 58, 1 <23> and of 27 October 1999 - 1 BvR 385/90 - BVerfGE 101, 106 <120>; chamber decision of 24 October 1990 - 1 BvR 1028/90 - (...); BVerwG, judgment of 22 September 2016 - 2 C 16.15 - (...) para. 25; decision of 21 March 1997 - 11 VR 2.97 - (...)). This is to be assumed in the case of a medical examination ordered by an authority in particular, if the disadvantages of refusal of the medical examination are so severe that the civil servant is actually forced to undergo the medical examination ordered.

24 The exclusion of isolated legal protection against a medical examination order by referring the civil servant to the possibility of legal protection against a potential forced retirement order of the employer is not unreasonable for the civil servant. This applies both with regard to any potential sanction under disciplinary law in case of non-compliance with the medical examination order and with regard to any other disadvantages and risks that might be associated with the non-compliance with the medical examination order.

25 bb) The aspect of the potential disciplinary sanction does not require an isolated legal protection (and interim measures) against the medical examination order.

26 Under section 44 (6) BBG, the civil servant is obliged to have himself or herself examined (and possibly observed) upon instruction of the authority. Pursuant to section 62 second sentence BBG, civil servants are obliged to follow employment-related orders. If a civil servant does not comply with a medical examination order, he or she violates his or her official duty resulting from section 44 (6) BBG. According to the legal concept of the Act on Federal Civil Servants, a civil servant is not free to choose whether or not he or she wishes to comply with the examination request (and to "merely" risk evidentiary disadvantages in a forced retirement procedure in the case of a refusal). Nor does the unlawfulness of the order lead to the compliance obligation no longer being valid, and so it does not exclude the sanction under disciplinary law from the outset but only has the effect of excluding or mitigating measures within the framework of the decision on the determination of the disciplinary measure under section 13 of the Federal Disciplinary Act (BDG, Bundesdisziplinargesetz) (see BVerfG, chamber decision of 7 November 1994 - 2 BvR 1117/94 et al. - (...)).

27 Sometimes, enforceability is assumed with regard to the possible sanction of a disciplinary measure for non-compliance with a medical examination order within the meaning of section 44a second sentence first alternative VwGO (...).

28 The Senate does not follow this assumption since the effects of the medical examination order do not come so close to an enforceability under the administrative enforcement laws that exclusion of isolated legal protection would be unreasonable. It is true that persons affected may not be deprived of isolated legal protection if there is the risk of them being subjected to criminal or administrative fine proceedings (see BVerfG, chamber decision of 7 April 2003 - 1 BvR 2129/02 - Chamber Decisions of the Federal Constitutional Court (BVerfGK, Kammerentscheidungen des Bundesverfassungsgerichts) 1, 107 <108>). This idea can, however, not be applied to the disciplinary procedure in the present constellation: If the civil servant complies with the medical examination order, he or she does not violate any duty, nor does he or she risk any disciplinary procedure. If the civil servant does not comply with the medical examination order, the employer will usually proceed with the forced retirement procedure (that changes the status of the civil servant) and in this context will assume due to the legal concept of section 444 of the Code of Civil Procedure (ZPO, Zivilprozessordnung) that the civil servant is unfit for duty (established jurisprudence, see BVerwG, judgment of 26 April 2012 - 2 C 17.10 - (...) para. 18) and order forced retirement - or in the federal states where it is expressly regulated, that in case of refusal of a medical examination without any legal grounds, the civil servant may be treated as if his or her unfitness for duty had been established (...), based on the respective provisions of the law of the federal state. There is no room a priori for a severe disciplinary measure as would only be conceivable vis-à-vis retired civil servants (see section 5 (2) BDG). This may serve as an explanation for the fact that in practice non-compliance with a medical examination order within the framework of a forced retirement procedure - as such - will only lead to the institution of a disciplinary procedure and - as the case may be - a disciplinary measure in very rare cases (see concerning such a rare case BVerwG, judgment of 12 December 2017 - 2 A 3.16 - (...) para. 20 et seqq.; (...)).

29 This means that even in the case of non-compliance with the medical examination order the civil servant does not seriously risk any disciplinary measure in practice; it is, as a general rule, a mere theoretical possibility. If, in an individual case, this nonetheless leads to a disciplinary procedure, the question of the lawfulness of the medical examination order would need to be assessed within the framework of the determination of measures under section 13 BDG and the unlawfulness of the medical examination order would regularly lead to non-compliance not being sanctioned. Legal and factual disadvantages caused even by the institution of a disciplinary procedure are insignificant anyway; and the civil servant also does not have any other possibility of legal protection against the mere institution of a disciplinary procedure.

30 cc) Nor does the aspect of the relevance of a medical examination in terms of basic rights require an isolated legal protection (and interim measures) against the medical examination order since the civil servant does not risk any unreasonable disadvantages in the event that he does not have himself or herself examined as ordered.

31 Some higher administrative courts assume that the severity of the encroachment upon a basic right requires the possibility of isolated legal protection (...). In fact, a medical - in particular a specialist psychiatric - examination encroaches upon the right to physical integrity (article 2 (2) GG) and the general right of personality (article 1 (1) in conjunction with article 2 (1) GG) (see BVerfG, decision of 24 June 1993 - 1 BvR 689/92 - BVerfGE 89, 69 <82 et seqq.> on the medical-psychological report to determine fitness to drive; BVerwG, judgment of 26 April 2012 - 2 C 17.10 - (...) para. 15).

32 However, isolated legal protection (and interim measures) are not required with regard to article 19 (4) first sentence GG since the relevant basis for the assessment of reasonableness that needs to be performed in this respect is not the encroaching effects of a medical examination but the effects of their refusal by the civil servant - similar to the situation for the aspect under disciplinary law already discussed. These effects do not require isolated legal protection against the medical examination order since the civil servant does not risk any unreasonable disadvantages in the event that he or she does not have himself or herself examined as ordered:

33 The civil servant is entitled to legal protection against a forced retirement order both in the main proceedings and - if the forced retirement order is immediately executable - as interim protection. If, in the course of these proceedings, the medical examination order proves to be unlawful, the same applies for the forced retirement order. The civil servant does not, by contrast, have any interest worthy of protection in non-compliance with a lawful medical examination order and does not require any isolated legal protection in this regard either. It is true that the civil servant bears the "forecasting risk": If he or she wrongly assumes that the medical examination order is unlawful, he or she risks that his or her action or application concerning the forced retirement order will be dismissed due to the legal concept of section 444 ZPO or - as described above - due to provisions under the law of the federal states (BVerwG, judgment of 26 April 2012 - 2 C 17.10 - (...) para. 18). However, this risk is not unreasonable for him or her in the sense presented, since the requirements for the lawfulness of a medical examination order are clarified in established jurisprudence (of the Senate) (see below under 2. for more details). The civil servant has to accept the risk that remains. What is already indicative of this is the public interest expressed in section 44a first sentence VwGO in swift conduct of the forced retirement procedure (...). In any case and regardless of this fact, this results from the special position of duty of the civil servant within the framework of the mutual relationship of duties and loyalty with his or her employer as enshrined in the constitution (see with regard to the relationship of loyalty of the civil servant in particular BVerfG, decision of 22 May 1975 - 2 BvL 13/73 - BVerfGE 39, 334 <346 et seqq.>). A civil servant is bound to serve the common good and thus to exercise his or her duty in an unselfish manner(BVerfG, judgment of 12 June 2018 - 2 BvR 1738/12 et al. - (...) para. 150; decision of 19 September 2007 - 2 BvF 3/02 - BVerfGE 119, 247 <264>). In the course of the forced retirement procedure, he or she has sufficient procedural guarantees and securities at his or her disposal. He or she can also obtain the advice of a legally qualified person, in particular a lawyer, concerning the question of whether the medical examination order issued to him or her is lawful. The indirect legal protection against the forced retirement order is reasonable.

34 It is irrelevant in this context that in the event that the civil servant has himself or herself examined as requested not only the encroachment upon basic rights that this entails can no longer be reversed but also that the result of the examination can be used regardless of the lawfulness of the examination request (BVerwG, judgment of 26 April 2012 - 2 C 17.10 - (...) para. 18). This is because even if the civil servant does not comply with the examination request this is not associated with unreasonable disadvantages for him or her - as presented above.

35 This legal assessment is confirmed by the jurisprudence relating to the order of a medical or medical-psychological examination in driver licensing law. With regard to an official order to provide a report clarifying fitness to drive, it is accepted that this is a procedural act that may not be challenged individually but the unlawfulness of which may only be asserted when a request is made for legal protection against the subsequent non-issuance or withdrawal of the driving licence (BVerwG, decisions of 17 May 1994 - 11 B 157.93 - (...) <see BVerfG, decision of non-acceptance of 13 December 1994 - 1 BvR 1250/94 -> and of 28 June 1996 - 11 B 36.96 - (...) para. 2 on this issue; (...)). The Federal Constitutional Court has approved of this jurisprudence (see BVerfG, decision of 24 June 1993 - 1 BvR 689/92 - BVerfGE 89, 69 <72, 84 et seq.> and the aforementioned non-acceptance decision).

36 When comparing the intensity of the encroachment of the measure both with regard to the examination as such (medical examination, medical-psychological examination) as well as with regard to its legal effects and the legal effects of refusal, they are - or at least may be - of similar weight. It is indeed true that the urgency of the measure in driver licensing law and therefore in the field of threat prevention is higher which could justify less strict requirements for the justification of the exclusion of the possibility to challenge the measure individually compared to the law on the status of civil servants. The aspect of the duty of care under the law on civil servants could also be an argument in favour of this. Otherwise, it also follows from the character of the relationship of civil servants and their employers as a special mutual relationship of loyalty and duties, that the civil servant has to take the needs of his or her employer into account insofar as he or she has himself or herself examined by a physician as instructed without any isolated legal protection, in order to enable the employer to swiftly conduct the forced retirement procedure in the interest of the effective functioning of public service.

37 The simple fact that the civil servant has to face a medical examination that he or she cannot already refer for judicial review in a preventive fashion (upstream) but only after the fact does not make him or her an object of public action who has no legal protection. The weighing of the interests that are protected by the constitution and that are opposed to each other in this respect (namely the substantive basic rights of the civil servant including the guarantee of effective legal protection on the one hand and the functioning of public administration and the particular duties of the civil servant on the other hand) based on the principles of creating practical concordance leads accordingly to the result that indirect legal protection within the framework of the (temporary relief or ordinary) proceedings against the forced retirement order represents an appropriate and proportionate balancing of the constitutional interests affected.

38 The Senate highlights for the purpose of clarification that the principles presented only apply to the question of admissibility of isolated legal protection against a medical examination order within the framework of section 44 (1) and (6) BBG (section 26 (1) BeamtStG) and not against a measure ordered by the employer that follows a medical examination order or for which the medical examination order is a precondition. Legal protection against such an - additional - measure, for example the order, to undergo a certain medical treatment in order to ensure or regain fitness for duty, is admissible without this being contrary to section 44a VwGO (...).

39 2. Moreover, the application would also be without merit since the applicant has not been able to substantiate that he has a right to an interim order concerning the medical examination order issued to him.

40 a) According to section 44 (6) BBG, a civil servant is obliged to have himself or herself medically examined upon instruction of the authority and - if this is deemed necessary in the view of the public health officer - also to have himself or herself monitored, if there are doubts concerning his or her unfitness for duty. The procedure of the medical examination is set out in section 48 BBG.

41 aa) Due to its associated encroachment into the personal sphere of the civil servant, which is protected as a basic right, a medical examination order has to meet certain requirements with regard to form and content based on the principle of proportionality:

42 (1) A medical examination order must - firstly - be based on factual findings that make it seem clear that the civil servant is unfit for duty (BVerwG, decision of 10 April 2014 - 2 B 80.13 - (...) para. 9). Based on sufficiently strong factual circumstances there must be doubt as to whether the civil servant is able to fulfil the duties of his or her abstract-functional office due to his or her physical condition or for health-related reasons (see BVerwG, judgments of 28 June 1990 - 2 C 18.89 - (...), of 23 September 2004 - 2 C 27.03 - BVerwGE 122, 53 <55> and of 3 March 2005 - 2 C 4.04 - (...)). This must be assumed if there are circumstances that justify the serious concern, following a reasonable, realistic assessment, that the civil servant concerned is unfit for duty (BVerfG, decision of 24 June 1993 - 1 BvR 689/92 - BVerfGE 89, 69 <85 f.>; BVerwG, judgments of 26 April 2012 - 2 C 17.10 - (...) para. 19 and of 30 May 2013 - 2 C 68.11 - BVerwGE 146, 347 para. 19).

43 The authority has to state these factual circumstances in the examination request. The civil servant has to be able, based on the reasons given, to understand the view of the authority and to assess whether the reasons stated are viable (see BVerwG, judgments of 23 October 1980 - 2 A 4.78 - (...), of 26 April 2012 - 2 C 17.10 - (...) para. 19 et seqq. and of 30 May 2013 - 2 C 68.11 - BVerwGE 146, 347 para. 19 et seqq. with further references). Any defect in this request may not be remedied in the subsequent administrative procedure or judicial proceedings - for instance in accordance with section 45 (1) no. 2 of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz) (BVerwG, judgment of 30 May 2013 - 2 C 68.11 - BVerwGE 146, 347 para. 21).

44 (2) Secondly - the medical examination order has to contain information about the type and scope of the medical examination. The authority may not leave this to the discretion of the physician. Only if the type and scope of the requested medical examination can be understood from the request itself is the person affected able to assess its lawfulness in accordance with the principle of proportionality. The employer must accordingly already establish clearly in advance to issuing the order after corresponding specialist medical advice, at least concerning the essential features, in what respect there are doubts concerning the physical condition or health of the civil servant and which medical examinations are required to finally clarify the situation (BVerwG, judgment of 30 May 2013 - 2 C 68.11 - BVerwGE 146, 347 para. 19; (...)).

45 For this reason, the authority has to deal with certificates presented by the civil servant which might in certain circumstances obviate the need for an examination - in whole or in part. This obligation also applies to the court responsible for finding the facts if the lawfulness of the medical examination order is under review (see BVerwG, decision of 10 April 2014 - 2 B 80.13 - (...) para. 11).

46 bb) However, the requirements stated above under (2) concerning the obligation to state the reasons for a medical examination order only apply if the employer bases his doubts concerning the fitness for duty on section 44 (1) first sentence BBG (section 26 (1) first sentence BeamtStG). According to this provision, civil servants with life tenure must be forced to retire, if they are permanently unable to fulfil their duties due to their physical condition or for health-related reasons (unfit for duty) (...).

47 In the case of a medical examination order based on the legal presumption rule under section 44 (1) second sentence BBG (section 26 (1) second sentence BeamtStG) however, anyone who, as a result of an illness, has not served for more than three months during a period of six months may also be considered to be unfit for duty if there is no prospect that the fitness for duty will be re-established within an additional six months and/or the period determined by federal state law. The cause for the medical examination order here is the periods of illness-related absence of the extent as stipulated by law. In this case of long-lasting periods of absence, where no further knowledge concerning the underlying illness exists on the part of the employer, the requirements developed for medical examination order cases under section 44 (1) first sentence BBG (section 26 (1) first sentence BeamtStG) do not apply. The medical examination order therefore does not need to contain information concerning reasons for the examination above and beyond the duration of illness-related periods of absence. In particular, the employer does not have to explain in the medical examination order that the underlying illnesses justify doubts as to the fitness for duty of the civil servant, nor does he or she have to explain why; since the certificates of incapacity for work do not contain information on the reasons for the unfitness for duty (see Guidelines on the Incapacity for Work (Arbeitsunfähigkeits-Richtlinie) of 14 November 2013, Official section of the Federal Gazette (BAnz AT, Amtlicher Teil des Bundesanzeigers) of 27 January 2014, B4, Template no. 1 b), he or she generally is also not able to do so (...).

48 The rights of the civil servant are not impaired by this. If the employer bases the order on the unfitness for duty that is assumed due to significant periods of absence in accordance with section 44 (1) second sentence BBG (section 26 (1) second sentence BeamtStG), the addressee knows why the medical examination order is issued. The examination by the public health officer is then used to determine whether there is a chance that the fitness for duty may be re-established completely within the period prescribed by law (...).

49 cc) In the case of a medical examination order where the employer bases his or her doubts concerning the fitness for duty on section 44 (1) first sentence BBG (section 26 (1) first sentence BeamtStG) periods of absence that are below the time threshold defined in section 44 (1) second sentence BBG, section 26 (1) second sentence BeamtStG, may justify a medical examination order as well. This is the case if it is reasonable to suppose that the civil servant is unfit for duty in view of the periods of absence. Section 44 (1) second sentence BBG (section 26 (1) second sentence BeamtStG) does not have any blocking effect such that periods of absence - considered individually or together with other findings - might justify doubts concerning the fitness for duty only within the framework of these provisions but not under section 44 (1) first sentence BBG (section 26 (1) first sentence BeamtStG).

50 dd) Only based on the knowledge available to the employer may the employer state reasons underlying the doubts as to the fitness for duty of the civil servant and determine the type and scope of the medical examination. If the authority has no further knowledge of any kind other than the fact that the civil servant has illness-related periods of absence and the extent of these, it can also only use this knowledge as the reasons for its doubts as to the permanent (un)fitness for duty of the civil servant; if no reason for the health impairment can be derived from the medical certificates submitted by the civil servant (certificates of incapacity for work, "sick notes") and such a reason has also not been voluntarily disclosed by the civil servant in any other manner or became known in any other way, the authority is naturally not able to define in more detail the type and scope of the medical examination (BVerwG, decision of 16 May 2018 - 2 VR 3.18 - (...) para. 6).

51 ee) A medical examination order under section 44 (1) second sentence BBG (section 26 (1) second sentence BeamtStG) that is based simply on periods of absence may also include psychiatric examinations. The circumstance that this is associated with a particularly severe encroachment upon the civil servant's general right of personality does not require a limitation of corresponding medical examination orders to cases under section 44 (1) first sentence BBG (section 26 (1) first sentence BeamtStG) (...). A medical examination order under section 44 (1) second sentence BBG (section 26 (1) second sentence BeamtStG) is, as opposed to such an order under section 44 (1) first sentence BBG (section 26 (1) first sentence BeamtStG), not a medical examination order of lower weight. Medical examinations that may be ordered within the framework of section 44 (1) first sentence BBG (section 26 (1) first sentence BeamtStG) may also be issued within the framework of section 44 (1) second sentence BBG (section 26 (1) second sentence BeamtStG).

52 A simple medical examination order that lists the periods of absence of the civil servant in the facts of the case and asks for a medical examination, including a forecast concerning the question of whether it may be expected that the fitness for duty will be fully re-established within a period of six months, is lawful and may justify the application of the special legal rule concerning the conclusion to be drawn from the refusal of the medical examination that unfitness for duty exists or the application of section 444 ZPO. A forced retirement order based on such an order is lawful.

53 b) In the present case, no right to an interim order as requested exists.

54 Due to the periods of absence of the applicant, the respondent was entitled to have doubts concerning his permanent fitness for duty. The letter of the respondent of 6 June 2018, supplemented by the request of 28 August 2018 for a declaration of consent (in principle not required here), has to be regarded as the order for a specialist psychiatric examination. At this point in time, the applicant had not served for more than three months within a period of six months and so the respondent had reason to assess whether there were no prospects that the fitness for duty would be fully re-established within a period of another six months (section 44 (1) second sentence BBG). The respondent was entitled to also order a psychiatric examination in this context (see the explanations above under para. 51).

55 Furthermore, it is unobjectionable that the respondent already requested the applicant in the medical examination order of 6 June 2018 "to undergo an additional medical examination if the public health officer should order such an examination."

56 What is misleading - and incorrect - however, is that according to the wording reproduced above, such an additional examination by a physician (public health officer) could be "ordered". Such an order vis-à-vis the civil servant would be impermissible since the physician (public health officer) is merely the assisting expert intended to provide the employer with the medical knowledge that the employer does not himself or herself have, in order to enable the employer to take the decision incumbent on the employer alone concerning any unfitness for duty or limited fitness for duty of the civil servant based on the medical expertise and to - potentially - give effect to the consequences under the law on the status of civil servants resulting from this (established jurisprudence, see most recently BVerwG, judgments of 5 June 2014 - 2 C 22.13 - BVerwGE 150, 1 para. 18 with further references and of 19 March 2015 - 2 C 37.13 - (...) para. 12).

57 However, the letter of the respondent of 6 June 2018 must not be understood in this way. Rather, it already contains the order of the respondent itself - issued by way of precaution - that the applicant has to undergo an additional examination that the public health officer deems to be necessary, as the case may be.

58 This does not constitute an impermissible (advance) delegation of powers of public authority to which the employer alone is entitled to the physician (public health officer) requested to perform an examination. If - after his or her (initial basic) examination - the physician (public health officer) concludes that he or she is not able to provide a conclusive medical opinion concerning the fitness for duty of the civil servant, for instance because additional examinations (at additional appointments) with special medical equipment (e.g. X-ray, MRI scan) or an additional examination by a medical specialist were necessary, the employer will as a rule not be able to avoid following this assessment since the employer himself or herself lacks the medical knowledge. In such a case, however, it is reasonable and legally unobjectionable if the employer extends the scope of the medical examination order immediately to include the requirement that the civil servant also has to undergo an additional examination by a medical specialist that the examining physician (public health official) may consider to be necessary. This also applies to a specialist psychiatric examination; there is no reason to assume more far-reaching legal requirements for such an examination.

59 The respondent was also not expected to obtain an explanation from the public health officer concerning the necessity of the specialist psychiatric examination. An examination by a physician (public health officer) is a unilateral determination of the medical diagnostic findings where interim information is neither useful nor necessary.

60 (...)