Judgment of 25 July 2013 -
BVerwG 2 C 12.11ECLI:DE:BVerwG:2013:250713U2C12.11.0
Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its decisions, is German. This translation is based on an abbreviated version of the original decision. 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.
When citing this decision it is recommended to indicate the court, the date of the decision, the case number and the paragraph: BVerwG, Judgment of 25 July 2013 - BVerwG 2 C 12.11– para. 16.
1. The employer has no margin of appreciation when it comes to determining the health-related fitness to work of civil servant applicants.
2. A civil servant applicant is unfit in terms of physical and/or mental health if factual indications justify the assumption that there is a greater probability of incapacity to work before legal retirement age (change in jurisprudence).
Sources of law
Basic Law for the Federal Republic of Germany GG, Grundgesetz article 3 (3) second sentence, article 19 (4) first sentence, article 33 (2) Council Directive 2000/78/EC article 2 (2) (b) (i), article 3 (1) (a), article 6 (2), article 17 first and second sentences General Equal Treatment Act AGG, Allgemeines Gleichbehandlungsgesetz section 3 (2), section 7 (1), section 15 (1), (2) and (4) Social Code Book IX SGB IX, Sozialgesetzbuch IX section 2 (3), section 128 (1) Act on Civil Servants of the Federal State of Lower Saxony NBG, Niedersächsisches Beamtengesetz section 9 (2), section 25 no. 13, section 45 (1) first sentence Career Ordinance of the Federal State of Lower Saxony NLVO, Niedersächsische Laufbahnverordnung section 14 (1) first sentence, section 16 (2) and (5)
Summary of the facts
The claimant demands employment as a civil servant on probation in the function of senior teacher (Studienrat) as well as damages on the grounds of rejection of his application by error of law.
The claimant was born in 1965 and has been working as an employed vocational school teacher since 2006. He has multiple sclerosis and has suffered a slipped disc. On these grounds, the defendant declined the claimant’s appointment as a permanent civil servant because of a lack of health-related fitness. The claimant was at present free from complainants and symptoms, the defendant argued. However, there was an increased probability that he would become unfit for service before reaching legal retirement age. After the denial, the degree of disability was established as 30.
8 The claimant’s appeal on points of law is successful with the annulment of the appeal judgment and referral of the case back to the Higher Administrative Court (section 144 (3) no. 2 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) in as far as the Higher Administrative Court dismissed his appeal against the dismissal of his primary claim, i.e. to order the defendant to appoint the claimant as a permanent civil servant. In this respect, the appeal judgment violates federal law (section 137 (1) no. 1 VwGO).
9 The legal opinion of the Higher Administrative Court, according to which the courts had only limited competence to assess the claimant’s health-related fitness, is not compatible with article 19 (4) first sentence, article 33 (2) of the Basic Law (GG, Grundgesetz) and section 9 of the Act on the Status of Civil Servants (BeamtStG, Beamtenstatusgesetz) of 17 June 2008. Furthermore, this assessment must be based on a forecasting scale other than the one used by the Higher Administrative Court. In the event that the claimant is found to be suitable in terms of his health, he is entitled to appointment as a permanent civil servant if he is the applicant with the best professional qualification for a free position as a senior teacher. This requires the related discretionary margin of appreciation of the organisation responsible for the selection of applicants to be reduced to only one possible legally sound decision. With regard to the action for damages, the Higher Administrative Court was right to dismiss the appeal.
10 1. Pursuant to article 33 (2) GG and section 9 BeamtStG which, pursuant to section 1 of the latter Act, is directly applicable to the status law of civil servants employed by a federal state (Land), appointments shall be based on aptitude, qualifications and professional achievements. In order to qualify as suitable within the meaning of the foregoing, an applicant must have the physical, mental and personal characteristics to perform the duties of the position sought (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 21 February 1995 ‑ 1 BvR 1397/93 ‑ Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 92, 140 <151>). In conjunction with the assessment of an applicant’s aptitude required pursuant to article 33 (2) GG, the employer must therefore also decide whether the applicant meets the requirements of the position in question from a health perspective (BVerfGK, Kammerentscheidungen des Bundesverfassungsgerichts 14, 492 <496> = juris para. 11). If an applicant is physically unsuitable with a view to his or her physical or mental condition, the applicant’s appointment as a permanent civil servant is not possible irrespective of the applicant’s professional qualifications. The applicant cannot be included in the comparison of professional performance of the applicants applying for the positions to be filled.
11 In order to assess health-related fitness, the applicant’s physical and mental disposition must be determined and the impact of this disposition on the applicant’s performance potential identified. These assessment processes typically require special medical expertise which only a physician has. Accordingly, section 9 (2) in conjunction with section 45 (1) first sentence of the Act on Civil Servants of the Federal State of Lower Saxony of 25 March 2009 – (NBG, Niedersächsisches Beamtengesetz) ‑ (Law and Ordinance Gazette of Lower Saxony (Nds. GVBl, Niedersächsisches Gesetz‑ und Verordnungsblatt) p. 72) in the version of the Act of 12 December 2012 (Nds. GVBl p. 591) stipulates that health-related fitness must be determined in an examination by a medical health officer or by a physician with civil service status. When necessary, this physician must consult a specialist. However, the need to refer the case to a physician does not imply that the responsibility for the decision regarding health-related fitness may be imposed on the physician. Instead, the physician acts as an expert whose assistance is required by the public employer in order to establish the necessary facts. Public employers must understand the medical findings and conclusions and form an independent opinion on this basis (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) judgment of 21 June 2007 ‑ BVerwG 2 A 6.06 ‑ (…)).
12 The public employer is responsible for determining the physical requirements for the respective career path. In this respect, the public employer has considerable margin of appreciation and, in exercising this, is obliged to consider the typical duties of the functions of the career path. These requirements are the standard for determining the applicants’ individual physical fitness (judgment of 21 June 2007, see above). This is the basis for determining whether an applicant whose performance is impaired ‑ for instance, as a result of a chronic disease ‑ is capable of meeting the requirements of the positions of a career path for the fulfilment of professional duties.
13 The assessment of an applicant’s aptitude for a public position sought by the applicant applies not only to the present situation, but also to the future professional activities and includes a forecast that demands in each and every case a separate concrete appraisal of the applicant’s person as a whole (BVerfG, judgment of 24 September 2003 ‑ 2 BvR 1436/02 ‑ BVerfGE 108, 282 <296>). The health-related fitness of an applicant for a civil service position who is fit for service at the time of the pre-employment medical examination must therefore be negated if the applicant belongs to a risk group or suffers from a progressive chronic disease.
14 The forecast encompasses the time until the statutory retirement age is reached. The crucial question is whether it is likely that the applicant for a civil service position will remain in service until that time or whether the applicant will have to retire prematurely due to incapacity to work.
15 This forecasting period results from the traditional principles of life tenure and maintenance principle enshrined in article 33 (5) GG. These principles oblige the public employer to provide life-long support of retired civil servants. The employer’s interest in a balanced relationship between the civil servants’ period of service and retirement thereby attains constitutional importance. By defining the maximum age for appointing permanent civil servants and the retirement age limit, legislative and regulatory bodies determine the reasonable period of service in order to qualify for a pension. If the civil servant retires before reaching retirement age, the balance between the service and retirement period is shifted because the employer loses the civil servant’s working capacity prematurely (judgment of 23 February 2012 ‑ BVerwG 2 C 76.10 ‑ Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 142, 59 (…)).
16 Barring access to employment in the civil service for health reasons irrespective of professional suitability is a restriction of the access protected under article 33 (2) GG which corresponds to a subjective barrier to the freedom to choose an occupation as contemplated by article 12 (1) GG (judgment of 13 December 2012 ‑ BVerwG 3 C 26.11 ‑ (…)). In view of the importance of barring an applicant from employment in terms of fundamental rights, and further in view of the very long forecasting horizon of several decades, the Senate no longer adheres to its former jurisprudence according to which the commencement of incapacity to work before reaching statutory retirement age must be almost certainly ruled out (judgments of 17 May 1962 ‑ BVerwG 2 C 87.59 ‑ (…), of 25 February 1993 ‑ BVerwG 2 C 27.90 ‑ BVerwGE 92, 147 <149> and of 18 July 2001 ‑ BVerwG 2 A 5.00 ‑ (…)). As long as the legislator does not determine a shorter forecasting horizon, the employer can only deny the health-related fitness of applicants who are currently fit for service if factual indications justify the assumption that there is a greater probability that incapacity to work will occur before legal retirement age.
17 According to the criteria so far applied, it is still possible to bar applicants from becoming civil servants because their health condition deviates from the standard. This even applies if the applicants’ performance is not impaired both now and in the foreseeable future. In such cases, the negative fitness forecast was justified by classifications and statistical probabilities for which no proof of the contrary is possible and which cannot be retroactively corrected (...).
18 This is demonstrated by the case of the claimant who is presently fully fit for work: The expectation that he will become unfit for work before reaching statutory retirement age is solely based on the assumption that the totality of a particular group of individuals ‑ in this case, people suffering from multiple sclerosis ‑ has a higher risk of premature incapacity to work.
19 In view of the forecasting horizon of several decades and the complex nature of medical forecasts, decisions regarding the health-related fitness of a civil servant applicant are subject to considerable uncertainty. This applies not just to the assessment of the development of an individual’s health, but also to medical progress. It is not possible today to consider future preventive or curative methods. Furthermore, interactions between individual factors and their role as root causes of the risk of developing severe symptoms are not explored with certainty. The availability of reliable studies of correlation statistics of the relationship between individual risk factors and the probability of occurrence of premature incapacity to work is very limited.
20 Finally, the current state of information does not justify the assumption that premature incapacity to work will to a significant extent be due to diseases that were predictable at the time of the decision to appoint an applicant (National Ethics Council (Nationaler Ethikrat), Prädiktive Gesundheitsinformationen bei Einstellungensuntersuchungen: Stellungnahme, 2005, p. 59). Premature incapacity to work is therefore typically due to circumstances arising at a later point in time.
21 A corresponding predictive assessment requires a sufficient factual basis. The current health-related fitness can only be negated on the grounds of future development if factual indications exist that can prove that there is a greater probability that incapacity to work will occur before legal retirement age.
22 In virtually all cases, this means that a physician must establish robust medical facts based on general medical knowledge and the applicant’s health condition as a forecasting basis. The physician must establish the extent of impairment and provide a robust medical assessment of the prospective impact of such impairment of performance and fulfilment of professional requirements. In this context, the physician must evaluate available knowledge of the prospective course of chronic diseases and correlate this with the applicant’s health condition.
23 The medical diagnosis must therefore identify underlying facts as well as medical findings, explain the examination methods and disclose its hypotheses and their basis. On this basis, the medical diagnosis must make full use of the existing information regarding the applicant’s health condition and make a statement concerning the prospective development of the applicant’s performance capability that will enable the employer to independently answer the legal question regarding health-related fitness for the purposes of article 33 (2) GG (regarding the required forecasting basis, see also BVerfG, judgment of 5 February 2004 ‑ 2 BvR 2029/01 ‑ BVerfGE 109, 133 <165>).
24 2. The administrative courts are obliged to decide on the health-related fitness of civil servant applicants without having to follow the factual or legal assessments of the public employer who has no margin of appreciation in this respect. In this case too, the Senate does not adhere to its previous jurisprudence (judgments of 17 May 1962 ‑ BVerwG 2 C 87.59 ‑ (…) and of 18 July 2001 ‑ BVerwG 2 A 5.00 ‑ (…)).
25 Pursuant to article 19 (4) first sentence GG, the administrative courts have the final decision-making power for the interpretation and application of legislation. On the one hand, margin of appreciation on the part of the executive that leads to limited control density by the courts must be based on legislation, i.e., it must be possible to determine this margin of appreciation by interpretation of the law. On the other hand, the determination of the meaning of a legal provision must be so vague or its case-related application so difficult that control by the courts approaches the functional limits of judicature because of the high degree of complexity or the special dynamics of the issue in question. It does not suffice that a legal analysis is to be made on the basis of complex facts. As another requirement, the courts must be unable to master on their own the task of identifying and analysing from a legal perspective the decision-relevant facts even if they resort to the necessary extent to the expertise of the executive or other forms of expert assistance (BVerfG, decisions of 17 April 1991 ‑ 1 BvR 419/81 and 213/83 ‑ BVerfGE 84, 34 <49 et seq.> and of 31 May 2011 ‑ 1 BvR 857/07 ‑ BVerfGE 129, 1 <20 et seq.>; BVerwG, judgment of 28 May 2009 ‑ BVerwG 2 C 33.08 ‑ BVerwGE 134, 108 (…)).
26 These requirements are not fulfilled with regard to forecasting the health-related fitness of civil servant applicants.
27 The public employer’s margin of appreciation in determining the health-related fitness for a career path does not justify restricting the courts’ control density in assessing the health-related fitness connected thereto. The health condition of the civil servant applicant must be correlated with the requirements of the civil servant’s career path. It must be assessed whether the applicant fulfils the requirements and whether indications exist that suggest that there is a greater probability that this will change before legal retirement age.
28 As explained, the employer must make the health forecast on the basis of robust medical facts. There is no obvious reason that would prevent administrative courts – as opposed to the public employer – to make a responsible judgment on their own on this basis regarding the prospective development of the health condition and the fulfilment of professional requirements. Accordingly, it is generally accepted that the employer has no margin of appreciation for assessing incapacity to work as a precondition for premature retirement of a civil servant (see, for instance, judgment of 26 March 2009 ‑ BVerwG 2 C 73.08 ‑ BVerwGE 133, 297 (…)).
29 In contrast to this, the employer does have margin of appreciation when it comes to the comparative professional qualification of applicants which encompasses, first and foremost, the weighting of the performance-related selection criteria of article 33 (2) GG (judgments of 28 October 2004 ‑ BVerwG 2 C 23.03 ‑ BVerwGE 122, 147 <150 et seq.> (…) and of 4 November 2010 ‑ BVerwG 2 C 16.09 ‑ BVerwGE 138, 102 (…)).
30 On the basis of the facts established by the Higher Administrative Court, the Senate is unable to judge whether the claimant’s health-related fitness is suitable to allow his appointment as a permanent civil servant. The Higher Administrative Court will now have to assess, in the first place, whether the claimant’s multiple sclerosis condition and his individual situation provide indications that there is a greater probability that incapacity to work will occur before legal retirement age.
31 If the claimant is fit in terms of health, he is entitled to demand employment as a senior teacher as a civil servant on probation if the comparison of qualifications of the candidates for a civil servant position as a senior teacher shows that he is the most suitable applicant. To this effect, the employer’s margin of appreciation must be reduced to one possible sound decision in favour of the claimant. It cannot be ruled out that this margin of appreciation is at least restricted due to the greater body of experience which the claimant developed through his practical professional activity. In this respect too, the Higher Administrative Court may have to establish the necessary facts.
32 Appointment as a permanent civil servant is not prevented by the fact that the claimant, during the course of litigation, exceeded the age limit for appointment as a civil servant on probation (section 16 (2) first sentence of the Career Ordinance of the Federal State of Lower Saxony (NLVO, Niedersächsische Laufbahnverordnung) of 30 March 2009 ‑ Nds. GVBl p. 118; amended by the Ordinance of 19 May 2010, Nds. GVBl p. 218). Appointment as a permanent civil servant is basically possible if the statutory requirements are fulfilled at the time the court decides on the entitlement to be accepted into the status of a civil servant or to be appointed as a civil servant (judgment of 23 February 2012 ‑ BVerwG 2 C 76.10 ‑ BVerwGE 142, 59 (…)).
33 However, pursuant to section 16 (5) first sentence no. 2 NLVO, exceptions from the age limit can be permitted if an applicant’s professional career was delayed for reasons beyond his or her control to such an extent that the application of the age limit would have to be considered unreasonable. As the court of appeal rightly held, should the rejection be found to be unlawful, the margin of appreciation for granting an exception to the age limit is reduced to one possible legally sound decision in view of the fact that the claimant had applied for appointment as a permanent civil servant before exceeding the age limit (judgment of 23 February 2012 loc. cit. para 35 in each case).
34 3. Further modifications of the fitness requirements for disabled persons who are neither severely disabled nor have an equivalent status (section 2 (3) of the Social Code Book IX (SGB IX, Sozialgesetzbuch Neuntes Buch) are not necessary from a constitutional point of view.
35 National law provides for standards for determining the health-related fitness of applicants for civil service that are less restrictive than the above-described requirements only for persons with severe disabilities. Pursuant to section 128 (1) SGB IX, the special provisions and principles for appointing civil servants must be designed in such a manner that the recruitment and employment of people with severe disabilities is promoted and that a reasonable share of persons with severe disabilities in civil service is achieved. This legislative mandate was taken up by the legislator at Federation (Bund) and federal state (Land) level in passing civil service legislation (section 9 second sentence of the Law on Federal Civil Servants (BBG, Bundesbeamtengesetz), section 5 (1) of the Federal Ordinance on Career Paths and Promotion of Public Officials (BLV, Verordnung über die Laufbahnen der Bundesbeamtinnen und Bundesbeamten) and transposed in the career ordinances. Pursuant to section 25 no. 13 NBG, the government of the federal state is authorised to issue ordinances in order to set forth compensation measures in favour of persons with severe disabilities. Pursuant to section 14 (1) first sentence of the Career Ordinance of the federal state of Lower Saxony which is based on this, persons with severe disabilities to be appointed may only be expected to have the minimum physical fitness needed to pursue their career tasks. No. 3.4 of the directives for equal and self-determined participation in professional life in public service of persons with severe disabilities and persons having equal status adopted by the resolution of the federal state government of 9 November 2004 (Ministerial Gazette of Lower Saxony (Nds. MBl, Niedersächsisches Ministerialblatt) 2004 p. 783) concretises this by stating that the fitness of persons with severe disabilities can usually be affirmed even in cases where such persons are only fit for certain positions of the career path concerned.
36 Whilst physical fitness of civil servants to be appointed must be generally ensured for the complete career path with all its pertinent offices and posts assigned to this career path (BVerfG, judgment of 24 September 2003 ‑ 2 BvR 1436/02 ‑ BVerfGE 108, 282 <296>; BVerwG, decision of 20 June 2013 ‑ BVerwG 2 VR 1.13 (…) juris para. 22 and 28 et seqq.), this is not applicable to persons with severe disabilities. These persons are only required to have the minimum level of physical fitness so that a person with severe disabilities does not need to be fit for all posts. Instead, it must be ascertained whether the physical fitness is sufficient in order to assign to the applicant any activity which is adequate for the position and in conformity with the requirements of the service (BVerfG, chamber decision of 10 December 2008 ‑ 2 BvR 2571/07 (…) juris para. 12; BVerwG, judgment of 21 June 2007 ‑ BVerwG 2 A 6.06 ‑(…)).
37 If an applicant with a severe disability is unable to meet even these requirements, employment as a permanent civil servant is then not possible. This is also applicable in light of the warranty in article 3 (3) second sentence GG because unequal treatment is then based on compulsory reasons. If a person, on the very grounds of his or her disability, lacks certain mental or physical abilities which are a vital prerequisite for exercising a right, denial of such right does not violate the prohibition of discrimination pursuant to section 3 (3) second sentence GG (BVerfG, decision of 19 January 1999 ‑ 1 BvR 2161/94 ‑ BVerfGE 99, 341 <357>; see also BVerwG, judgment of 3 March 2011 ‑ BVerwG 5 C 16.10 ‑ BVerwGE 139, 135 para. 20 on section 7 (1) of the General Equal Treatment Act (AGG, Allgemeines Gleichbehandlungsgesetz).
38 The different treatment of persons with severe disabilities for the purposes of section 2 (2) SGB IX ‑ including persons with disabilities having equal status pursuant to section 2 (3) SGB IX ‑ compared to other persons with disabilities with regard to appointment as civil servants is compatible with art 3 (3) second sentence GG.
39 More favourable treatment is based on the objectively justified criterion of the increased need for protection of such persons and refers to the fact that it is impossible or at least more difficult for such persons to find suitable employment due to their disability. It is therefore consequent to devote special care to this group of persons in the procedure of recruiting them as civil servants. The groups of persons with severe disabilities, on the one hand, and of persons with less severe disabilities, on the other, have significant differences with regard to the subject matter of the related legal provisions, so that equal treatment on the grounds of law is not required. This is why section 128 (1) SGB IX as well as the procedural provision in section 82 second sentence SGB IX expressly provide for preferential treatment of this group of persons in the appointment procedure.
40 Moreover, corresponding privileged treatment is not necessary for persons who suffer from functional impairment but whose severity of impairment does not suffice to assume severe disability and who do not have a status equal to that of a person with severe disabilities. This group of persons is not subject to restricted possibilities to find employment on the labour market as the reason justifying the need for protection (section 2 (3) SGB IX). Expanding privileged treatment to persons with less severe disabilities would additionally devalue the facilitations available to persons with severe disabilities because this would otherwise impair the prospects of success of the latter group when applying for positions in public service.
41 4. The use of the general forecasting standard and horizon to applicants who, despite being disabled, are neither severely disabled nor have equal status is in accordance with Council Directive 2000/78/EC of 27 November 2000 ‑ (OJ L 303 p. 16) and the General Equal Treatment Act of 14 August 2006 (Federal Law Gazette I (BGBl I, Bundesgesetzblatt I) p. 1897) transposing this Directive into national law.
42 It can remain unanswered here whether persons with disabilities who are neither severely disabled nor have equal status as persons with severe disabilities pursuant to section 2 (3) SGB IX are included in the definition of disability in article 1 of the Directive. Should this be affirmed, application of the general forecasting standard and horizon would indirectly lead to less favourable treatment of this group (article 1, article 2 (1) and (2) (b) and article 3 of the Directive; section 7 in conjunction with section 1, section 2 (1) nos. 1 and 2 and section 3 (2) AGG).
43 The forecast of health-related fitness is not directly linked to the condition of being disabled; instead, the requirements apply equally to persons with and without disabilities.
44 However, the group of disabled persons is subject to a higher risk of not being appointed as permanent civil servants due to a negative health-related fitness forecast. Disabilities typically lead to impaired performance or make restrictions more likely at an older age. This risk also materialises if applicants with disabilities are not denied access to a profession, but to its pursuit as a civil servant. Less favourable treatment here consists of the fact that disability impacts the conditions for access to employment for the purposes of article 3 (1) (a) of the Directive (section 2 (1) no. 1 AGG).
45 Under European Union law, however, this treatment does not constitute unlawful discrimination because it is objectively justified by a legitimate aim and because the means of achieving this aim are appropriate and necessary (article 2 (2) (b) of the Directive). Due to the primacy of application of European Union law, the interpretation of this provision by the Court of Justice of the European Union (ECJ) is binding upon the interpretation of section 3 (2) AGG with its identical contents.
46 Legitimate aims for the purposes of article 2 (2) (b) of the Directive can, in particular, result from the fields of employment policy, labour market and vocational training; with any further social policy aim also being conceivable (ECJ, judgment of 13 September 2011 ‑ C‑447/09, Prigge and Others (…)). Member states have wide discretionary freedom in selecting the measures which they consider to be necessary in order to achieve a legitimate aim. The selection can be based on political, economic, social, demographic or fiscal consideration, with the latter considerations alone being not sufficient (ECJ, judgment of 21 July 2011 ‑ C‑159/10 and 160/10, Fuchs and Köhler (…)). A measure is proven to be appropriate and necessary if it does not appear unreasonable in the light of the aim pursued and if it is supported by evidence the probative value of which it is for the national court to assess (ECJ, judgment of 21 July 2011, see above, para. 83). Article 2 (2) (b) of the Directive is hence also an expression of the principle of proportionality (judgments of 19 February 2009 ‑ BVerwG 2 C 18.07 ‑ BVerwGE 133, 143 (…) and of 23 February 2012 ‑ BVerwG 2 C 76.10 ‑ BVerwGE 142, 59 (…)).
47 The employer’s interest in a balanced relationship between period of service and retirement of public servants is a legitimate aim for the purposes of article 2 (2) (b) of the Directive. This results from the relationship between the civil servants’ performance in service and the benefits they receive when retired. As explained in the foregoing, civil servants earn life-long pension benefits during their active term. The recognition under European Union law of the resultant interest in an adequate period of service is substantiated in article 6 (1) second sentence (c) of the Directive which provides that age-related less favourable treatment includes, in particular, the fixing of a maximum age for recruitment which is based on the need for a reasonable period of employment before retirement (judgment of 23 February 2012, see above, para. 45 in each case).
48 The application of the general forecast for the health-related fitness of civil servant applicants to applicants who are neither severely disabled nor have equal status is an appropriate and necessary measure in order to ensure an adequate period of service that justifies life-long pension benefits.
49 Subject to statutory regulation, the reference time for the forecasting decision is determined by the life tenure and maintenance principle. Life-time tenure of a person’s employment and the maintenance principle which corresponds to this are essential structural characteristics of professional civil service (BVerfG, decision of 19 September 2007 ‑ 2 BvF 3/02 ‑ BVerfGE 119, 247 <263>). They are the precondition for civil servants to fully devote their working capacity to public service as a life-time profession and, being legally and economically independent, to contribute towards the fulfilment of the constitutional tasks of professional civil service to secure a stable and law-compliant executive in the arena of competing political forces.
50 The system of life-time tenure of civil servants, which ensures protection against dismissal, adequate remuneration for the respective position as well as life-long maintenance for civil servants and their surviving dependants, justifies the employer’s interest in a balanced relationship between the period of service and the period of retirement of civil servants (judgment of 23 February 2012, see above, para. 16 in each case as well as para. 45). Maintaining an independent civil service is a legitimate aim for the purposes of article 2 (2) (b) (i) of the Directive. Furthermore, securing adequate life-time tenure is also required for fiscal reasons (concerning the consideration of the actuarial importance, see also article 6 (2) of the Directive). In contrast to the pay-as-you-go pension insurance system, the pension costs of retired civil servants are financed entirely from the budget of the employing body. A reasonable relationship between active period of service and pension costs is therefore particularly important in the case of civil servants.
51 The fitness forecast with the contents described is also an adequate measure to ensure that public positions are filled with the best-possible public servants.
52 The requirement of health-related fitness is necessary because other measures adversely impact the life-time principle and are therefore not equally effective with regard to the aim.
53 It is also reasonable. The sovereign tasks typically assigned to civil servants belong to the functions reserved for public servants pursuant to article 33 (4) GG the pursuit of which ‑ specifically in the interest of the citizens subject to the law ‑ requires special guarantees in terms of reliability, continuity and adherence to the rule of law as warranted by civil servants (BVerfG, decision of 19 September 2007 loc. cit., p. 261). The special requirements for the type and quality of the performance of tasks in these critical areas do not permit any compromise regarding fitness requirements or the recruitment of applicants whose premature incapacity to work is already likely at this point in time (regarding the consideration of the type of tasks and the Member States’ discretion in organising their public administrations, see ECJ, judgment of 8 September 2011 ‑ C-177/10 (…) paras. 69 and 76; regarding the interest in being able to employ civil servants, once recruited, over a sufficiently long period of time, see also judgment of 12 January 2010 ‑ C-229/08 (…) para. 43). In as far as employment under a collective agreement is possible ‑ which is, for instance, the case for teachers as the professional group concerned in this case ‑ unequal treatment does not apply to the practice of the profession as such, but only to its legal framework.
54 5. The claimant is not entitled to claim compensation for the damage suffered as a result of the unlawful rejection of his application. This is because the defendant was not at fault.
55 Such a claim is not based on section 15 (1) AGG because the precondition for this, i.e., infringement of the prohibition on the discrimination of disabled persons, was not fulfilled. As explained, the use of the ‑ downscaled ‑ general forecasting standard for the health-related fitness of this group of applicants is justified pursuant to article 2 (2) (b) (i) of the Directive (section 3 (2) AGG).
56 Furthermore, the Higher Administrative Court also held that the defendant was not at fault (section 15 (1) second sentence AGG). At the time of rejecting the claimant’s application, the defendant had no reason to assume disability. Neither had a medical officer issued corresponding diagnoses nor had the applicant submitted a notice of assessment (decision of 7 April 2011 ‑ BVerwG 2 B 79.10 ‑ juris para. 5).
57 The fault requirement is also compatible with the law of the European Union. Article 17 of the Directive does not provide for any particular sanctions (ECJ, judgment of 25 April 2013 ‑ C‑81/12 ‑ juris para. 60). It only provides that the sanctions must be effective, proportionate and dissuasive. These requirements are fulfilled by national law which established a differentiated system of sanctions (Bundestag document (BT-Drs., Bundestagsdrucksache) 16/1780 p. 38).
58 Pursuant to section 5 (2) AGG, claims for compensation are recognised irrespective of fault. This ensures that an infringement of the prohibition on discrimination is sanctioned even in the absence of fault. The sanction provision of the General Equal Treatment Act is therefore not ineffective: It is effective even if it is not possible to prove a fault attributable to the employer (ECJ, judgments of 8 November 1990 ‑ C‑177/88 (…) para. 24 and of 22 April 1997 ‑ C‑180/95 (…) para. 22 on Council Directive 76/207/EEC). The liability model of section 15 AGG does, however, differentiate. Whilst the employer cannot avoid payment of damages for infringement of the prohibition on discrimination, the obligation to pay compensation for material damage ‑ which can be significantly higher ‑ is linked to the general attributability requirement in German indemnity law (section 280 (1) second sentence of the German Civil Code (BGB, Bürgerliches Gesetzbuch). This differentiation corresponds to the proportionality requirement (article 17 second sentence of the Directive). The impact is disproportionately more serious and dissuasive sanctions are necessary if an infringement of the prohibition on discrimination is attributable to an employer or if the employer even deliberately discriminates a person. If, by contrast, the employer in its decision did not have to assume the existence of a disability, the limitation of liability to compensation for non-material damage cannot be considered to be disproportionate.
59 Finally, the claimant did not lodge his claim within the limitation period pursuant to section 15 (4) first sentence AGG (on the permissibility of the period provisions, see ECJ, judgment of 8 July 2010 ‑ C‑246/09, Bulicke (…); Federal Labour Court (BAG, Bundesarbeitsgericht), judgment of 21 June 2012 ‑ 8 AZR 188/11 (…); BVerwG, judgment of 3 March 2011 ‑ BVerwG 5 C 16.10 ‑ BVerwGE 139, 135 para. 32 and decision of 16 April 2013 ‑ BVerwG 2 B 145.11 ‑ juris para. 10). In its letter of 31 October 2006, the defendant rejected the application, referring to the claimant’s health condition. The written submission of 21 November 2007 in which the claimant claimed damages was apparently received after expiration of the statutory two-month period.
60 Nor is the claimant entitled to compensation for damage on the grounds of infringement of the entitlement to an application procedure pursuant to article 33 (2) GG.
61 Applicants for appointment as a permanent civil servant are also entitled to this claim because recruitment or appointment as a civil servant on probation is also subject to the provisions of article 33 (2) GG. An applicant can hence claim compensation for the damage suffered as a result of not being recruited if the employer, on filling a position, has culpably infringed an applicant’s claim for consideration in the selection of applicants based on the applicant’s aptitude, qualifications and professional achievements based on article 33 (2) GG if this infringement of the law was the reason for the applicant not being recruited and if the applicant did not culpably fail to avoid the damage by seeking legal redress (judgment of 25 February 2010 ‑ BVerwG 2 C 22.09 ‑ BVerwGE 136, 140 (…)).
62 In this respect too, the defendant was not at fault. Besides lack of knowledge of the claimant’s disability for which the defendant cannot be blamed, the forecasting standard for the health-related fitness was in line with the state of jurisprudence and literature at that time (judgments of 25 February 2010 loc. cit. para. 26 in each case and of 26 January 2012 ‑ BVerwG 2 A 7.09 ‑ BVerwGE 141, 361 para. 40).(…)