Press release no. 36/2019 of 9 May 2019

Requirement of an occasion-related performance appraisal in a performance appraisal system geared towards routine performance appraisals

For a civil servant who has performed different tasks for a significant time period since the last routine performance appraisal, the employer is only obligated to prepare an occasion-related performance appraisal on the occasion of a selection process for promotion posts if the relevant post is attributed exclusively to an office conferred on a civil servant according to his or her status which follows, inter alia, from the title, final basic salary, career path and career group (Statusamt, hereinafter office conferred according to the status) with a higher value. Even in such cases, this does not lead to a requirement to also prepare occasion-related performance appraisals for all applicants competing with this civil servant. That was decided by the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in Leipzig today.


The two claimants are police officers employed by the federal state of North Rhine-Westphalia, at the beginning of the legal dispute as junior inspectors (pay grade A 9). Before an upcoming promotion round (for posts in pay grade A 10), both claimants applied for an occasion-related performance appraisal because, after the reference date of the last routine performance appraisal, they were no longer performing shift-based guard duty at a district police authority, but were deployed as lecturers in education and training at the federal state office for police education. The application was refused. Neither of the claimants was included in the promotion round because their ranks in the promotion ranking list were not high enough to be considered for promotion.


The Administrative Court (Verwaltungsgericht) considered the selection decision to be lawful, whereas the Higher Administrative Court (Oberverwaltungsgericht) objected to it: It held that the decision was based on a deficient comparison of qualifications as the routine performance appraisals prepared for the claimants were no longer sufficiently up-to-date. It also was of the opinion that, after the reference date for the last routine performance appraisal, the claimants, in their work as lecturers, had performed substantially different tasks than with the district police authority for a significant period. Furthermore, it held that the defendant was obligated to prepare new performance appraisals for all competing applicants to ensure equal opportunities.


The Federal Administrative Court set aside the two appeal judgments, thus confirming the dismissal of both actions in the first instance. It based its decision, in particular, on the following:


Contrary to the view of the Court of Appeal, the fact that the two claimants were not provided with occasion-related performance appraisals in view of their work as lecturers before the original selection decision was made did not render the original selection decision unlawful. Performance appraisals only need to be updated if the civil servant has performed tasks for a longer period in a post that is attributed exclusively to an office conferred according to the status with a higher value. It is, however, not the objective of a performance appraisal, not even in view of a promotion decision, to record and trace in detail each change of the area of tasks allocated to a civil servant.


Even if updating requirements apply with regard to one civil servant, this does not result in occasion-related performance appraisals having to be prepared for all other competing applicants for whom a relevant change in the tasks performed has not taken place. These performance appraisals remain sufficiently up-to-date provided they are not older than the length of the routine appraisal period.


BVerwG 2 C 1.18 - judgment of 9 May 2019

BVerwG 2 C 2.18 - judgment of 9 May 2019


Judgment of 9 May 2019 -
BVerwG 2 C 1.18ECLI:DE:BVerwG:2019:090519U2C1.18.0


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 9 May 2019 - 2 C 1.18 - para. 16.

Requirement of an occasion-related performance appraisal in a routine performance appraisal system

Headnotes

1. Provided that the constitutional and non-constitutional legal requirements are complied with, it is, as a matter of principle, covered by the employer's generally broad scope of organisational discretion how to design the performance appraisal system for its civil servants. A performance appraisal system that is based on routine performance appraisals to be conducted at three-year intervals is, in principle, unobjectionable. With regard to the question as to whether changes in the civil servant's area of tasks require an occasion-related performance appraisal, it must be ensured that this will not invalidate the employer's fundamental organisational decision in favour of a routine performance appraisal system.

2. An official (routine) performance appraisal may no longer be sufficiently up-to-date for a selection decision if, after the reference date for the most recent routine performance appraisal, the civil servant has performed substantially different tasks during a significant period of time (following BVerwG, judgments of 11 February 2009 - 2 A 7.06 - para. 20, of 30 June 2011 - 2 C 19.10 - BVerwGE 140, 83 para. 23 and decision of 10 May 2016 - 2 VR 2.15 - BVerwGE 155, 152 para. 23).

3. A significant period in this sense is deemed to exist if, in the case of a three-year routine performance appraisal period, the other tasks were performed during the (clearly) predominant part (two thirds) of the performance appraisal period, i.e. for two years. If the routine performance appraisal period is two years, this is not to be considered as a significant period which would make an occasion-related performance appraisal necessary.

4. Substantially different tasks in the above sense are deemed to exist if the civil servant, in his or her changed area of tasks, performs tasks that are to be attributed to a different office conferred according to the status (with a higher status or belonging to a different career path). For so-called bundled posts, this will only be the case if the post does not belong to the same pay grade as the civil servant's previous tasks.

5. If an occasion-related performance appraisal must be conducted for a civil servant due to a modified performance of tasks, this does not inevitably mean that, for this reason alone, occasion-related performance appraisals will also have to be conducted for all other competing applicants for whom such a change of tasks has not taken place. Even major differences in time between a routine and an occasion-related performance appraisal must be accepted as long as a comparison of qualifications on the basis of these appraisals and according to the principles of the selection of the best applicant continues to be possible without any significant discrimination of one of the applicants.

6. Grounds do not need to be provided for the overall result of a performance appraisal which was conducted via a so-called check-box procedure or solely on the basis of numerical and character values, provided that such appraisal relates to a comparatively small number of individual elements (here: seven) to which the employer is permitted to allocate equal relevance (identical weight).

7. The so-called collegiate court rule, which, if applicable, may exclude the assumption of fault which is required for a claim for damages, also applies to selection decisions and performance appraisals conducted by the Federal State Office for Education, Training and Personnel Matters (LAFP) of the police of North Rhine-Westphalia.

  • Sources of law
    Basic LawGG, Grundgesetzarticles 33 (2) and (5), 83 et seqq.
    Act on Federal Civil ServantsBBG, Bundesbeamtengesetzsection 22 (1) second sentence
    Act on the Status of Civil ServantsBeamtStG, Beamtenstatusgesetzsection 9
    Federal Ordinance on Career PathsBLV, Bundeslaufbahnverordnungsection 48 (1) first and second alternative
    Code of Administrative Court ProcedureVwGO, Verwaltungsgerichtsordnungsection 43 (1)
    Act on Civil Servants of the Federal State of North Rhine-WestphaliaLBG NRW, Landesbeamtengesetzsection 19 (6) first sentence
    Act on the Organisation of the Administration of the Federal State of North Rhine-WestphaliaLOG NRW, Landesorganisationsgesetzsection 6 (2)
    Equal Opportunities Act of the Federal State of North Rhine-Westphalia, old versionLGG NRW a.F., Landesgleichstellungsgesetz, alte Fassungsection 17 (1) no. 1, section 18 (2) first sentence
    Administrative Procedure Act of the Federal State of North Rhine-WestphaliaVwVfG NRW, Verwaltungsverfahrensgesetz für das Land Nordrhein-Westfalensection 46

Summary of the facts

The parties are in dispute about a selection decision under the law on civil servants.

The claimant is employed in the police service of the defendant federal state. In 2008, she was appointed junior inspector (Polizeikommissarin; pay grade A 9). Dated 5 September 2011, she received a routine performance appraisal (Regelbeurteilung) for the appraisal period from 6 August 2009 to 30 June 2011. During this period, and after that until August 2011, she held a (so-called "bundled") post performing shift-based guard duty at a district police authority, which was categorised into pay grades A 9 to A 11. In September 2011, she was transferred to the Federal State Office for Education, Training and Personnel Matters (LAFP, Landesamt für Ausbildung, Fortbildung und Personalangelegenheiten) of the police of North Rhine-Westphalia, and subsequently deployed as a lecturer for education and training on practical police issues, in a ("bundled") post, which also was categorised as A 9 to A 11. Between 23 October and 16 November 2012, she was seconded for practical training to a police headquarters. In November 2012, she applied for the preparation of an occasion-related performance appraisal (Anlassbeurteilung), arguing that she, due to her deployment as a lecturer, was performing substantially different tasks than before. The LAFP refused the application.

In April 2013, the LAFP intended to appoint 69 civil servants to promotion posts in pay grade A 10 which it had at its disposal. In the promotion ranking compiled for this purpose, the claimant was listed in position 81. In a letter dated 9 April 2013, the LAFP asked the equal opportunities commissioner to exercise her rights conferred by law. The equal opportunities commissioner replied, dated 15 April 2013, that she approved of the appointment of the "police officers named" in the letter dated 9 April 2013; the names of the civil servants placed beyond rank 69 were not provided in the letter.

On 11 April 2013, the LAFP announced the result of its selection decision via its official intranet in the form of a list of the civil servants scheduled for promotion. Subsequently, it was found that a civil servant ranked 4th was already an inspector (Polizeioberkommissarin). As a result, the LAFP decided, still in April 2013, without again involving the equal opportunities commissioner, that junior inspector D. who had ranked 70th was to move up into the group of civil servants to be promoted.

In two proceedings on interim measures which were initiated as a consequence, the claimant in this case and the claimant in the similar case BVerwG 2 C 2.18 both achieved in the complaints instance before the Higher Administrative Court (OVG, Oberverwaltungsgericht) that the defendant was temporarily prohibited, until a new selection decision had been made, to appoint the third parties summoned to attend these temporary relief proceedings as parties whose rights may be affected (hereinafter summoned third parties) to two promotion posts that had been kept vacant.

The action for a new decision on her promotion request was dismissed by the Administrative Court (Verwaltungsgericht) after the oral hearing was conducted before the court sitting in chamber, as the selection decision was held to be legally unobjectionable. During the appeal proceedings on points of fact and law, the claimant was promoted to inspector (pay grade A 10). As a consequence, she adjusted her request and asked the Court of Appeal to modify the first-instance judgment and declare that the defendant's selection decision was unlawful and that the defendant was obligated to issue a new decision on her promotion. The Court of Appeal set aside the first-instance judgment and made the requested declaration. 

Upon the appeal on points of law by the defendant federal state, the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) set aside the appeal judgment and dismissed the action.

Reasons (abridged)

13 The appeal on points of law is well-founded. The judgment by the Court of Appeal violates law that is subject to an appeal on points of law (section 137 (1) no. 1 and no. 2, section 191 (2) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung), section 127 no. 2 of the Civil Servants Framework Act (BRRG, Beamtenrechtsrahmengesetz), section 63 (3) second sentence of the Act on the Status of Civil Servants (BeamtStG, Beamtenstatusgesetz).

14 The action is inadmissible. The claimant does not have the necessary interest in the declaration sought that the defendant's selection decision of April 2013 was unlawful. The claim for damages invoked by her to justify her application for a declaratory judgment is manifestly unpromising due to the absence of fault on the part of the office holder acting on behalf of the defendant during this selection decision, as the Administrative Court, sitting in accordance with section 5 (3) first sentence VwGO, held, after the oral hearing, that this selection decision was lawful (1.). The exception from this so-called collegiate court rule (Kollegialgerichtsregel) assumed by the Court of Appeal does not apply in the case in dispute (2.). The Administrative Court's judgment furthermore does not have inherent serious deficiencies which would rule out the application of the collegiate court rule (3.). Contrary to the view of the Court of Appeal, it was not necessary to conduct an occasion-related performance appraisal for the claimant due to her changed deployment, now as a lecturer at the LAFP (4.). A fortiori - independently of the change in the claimant's area of tasks - it was not necessary to also conduct occasion-related performance appraisals for the other civil servants competing with her whose area of tasks had not changed (5.). The routine performance appraisal of the claimant, which therefore is sufficiently up-to-date, is furthermore not unlawful because detailed grounds were not provided for the overall result (6.). The fact that the equal opportunities commissioner was not involved again in the subsequent inclusion of junior inspector D. is, in conclusion, irrelevant for the assessment of the claim for damages (7.). This leads to the appeal judgment being set aside and the first-instance judgment dismissing the action being reinstated.

15 1. The claimant's original request for legal protection aiming at a new selection decision (to be made without an error of law) (request for a new decision on the matter) has become devoid of object, as she was appointed inspector (pay grade A 10) during the appeal proceedings on points of fact and law. She responded to the change in the procedural situation during the appeal proceedings on points of fact and law by changing her request to an action for declaration (section 43 (1) VwGO) with the application to declare that the original selection decision was unlawful (and that the defendant was obligated to decide anew on her promotion request).

16 The action for declaration is inadmissible as the claimant does not have a legitimate interest in a prompt declaration with the contents sought (section 43 (1) VwGO).

17 If the declaration - as is the case here - is intended to potentially serve the assertion of compensation claims in other proceedings, the legitimate interest exists if the claim for damages intended to be asserted is not, at least not manifestly, unpromising. The reasoning behind this is that the person seeking legal protection is not to be deprived of the results achieved through his or her previous conduct of the proceedings; this also applies - as is the case here - in the event of an action for declaration (established jurisprudence, see, e.g., BVerwG, judgments of 11 March 1993 - 3 C 90.90 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 92, 172 <175>, of 8 December 1995 - 8 C 37.93 - BVerwGE 100, 83 <91 et seq.>, of 30 June 2011 - 2 C 19.10 - BVerwGE 140, 83 para. 12, and, most recently, of 20 September 2018 - 2 C 45.17 - BVerwGE 163, 129 para. 11).

18 A condition of the so-called claim for damages under the law on civil servants is that the employer, when the promotion post was awarded, culpably violated the civil servant's entitlement to be considered in an applicant selection process in accordance with the civil servant's performance which results from article 33 (2) of the Basic Law (GG, Grundgesetz), if the office in question would probably have been awarded to the civil servant had the violation not occurred, and if the civil servant did not culpably fail to prevent the damage by having recourse to appeal (established jurisprudence, see, e.g., BVerwG, judgments of 26 January 2012 - 2 A 7.09 - BVerwGE 141, 361 para. 15, of 19 March 2015 - 2 C 12.14 - BVerwGE 151, 333 para. 12, and, most recently, of 15 June 2018 - 2 C 19.17 - BVerwGE 162, 253 para. 11, each with further references).

19 It is obvious that the claimant, in the case in dispute here, does not have such a so-called claim for damages under the law on civil servants, as the office holder acting on behalf of the defendant during the contested selection decision in April 2013 did not act culpably.

20 The acting office holder is usually not considered to have acted culpably if a collegiate court, consisting of several legal professionals, after a more than merely summary assessment, i.e. usually after conducting main proceedings, holds that the official activity was objectively lawful. This is based on the consideration that a civil servant cannot be expected to have better insight into the law than a collegiate court (so-called collegiate court rule; established jurisprudence, see, e.g., BVerwG, judgments of 17 August 2005 - 2 C 37.04 - BVerwGE 124, 99 <105 et seqq.> and of 16 May 2013 - 8 C 14.12 - BVerwGE 146, 303 para. 47; Federal Court of Justice (BGH, Bundesgerichtshof), judgment of 6 February 1986 - III ZR 109/84 - Rulings of the Federal Court of Justice in Civil Matters (BGHZ, Entscheidungen des Bundesgerichtshofs in Zivilsachen) 97, 97 <107>).

21 A decision taken by a collegiate court following an oral hearing was given here in the form of the first-instance judgment by the Administrative Court dismissing the action.

22 2. However, according to the jurisprudence of the Federal Court of Justice, the collegiate court rule does not apply to fundamental measures taken by central offices if they apply a special legislative act which they are particularly familiar with (see BGH, judgments of 21 December 1961 - III ZR 174/60 - (...) and of 28 June 1971 - III ZR 111/68 - (...)). Contrary to the view of the Court of Appeal, this exception from the collegiate court rule does not apply here.

23 a) In this context, it is irrelevant whether or not the approach taken in the aforementioned decisions, which date back some time and to which the Senate also made reference in a case in the past (BVerwG, judgment of 17 August 2005 - 2 C 37.04 - BVerwGE 124, 99 <106>), are still to be endorsed. This jurisprudence has recently - as far as this is apparent - not been continued by the Federal Court of Justice (either). On the one hand, it appears to be doubtful under legal aspects whether the increased liability of civil servants of such "central offices", namely the ministerial administration , which follows from this is objectively justified. On the other hand, it appears questionable under factual aspects whether the assumption underlying this jurisprudence is correct and empirically proven, according to which such offices usually are able to take their decisions after thorough weighing all aspects without being subjected to the "urgency of everyday business", and on the basis of relevant material, "i.e. similar to a court" (verbatim quote from BGH, judgment of 21 December 1961 - III ZR 174/60 - (...)).

24 b) In any case, the Higher Administrative Court incorrectly assumed that the conditions of this jurisprudence were met: The contested selection decision is not a "fundamental measure", nor was it made by a "supreme office", nor was it passed in application of a "special legislative act" which the authority was particular familiar with.

25 aa) The contested selection decision was not a "fundamental measure", but concluded - as the defendant's representatives explained in the oral hearing before the Senate (uncontested by the claimant's side) - a round of promotions which was regularly carried out once per year. It was an administrative decision which was repeated at regular intervals; the same applied to the performance appraisals used, or newly to be prepared, for this purpose. The fact that the legal question raised by the claimant - due to the principle of equal treatment alone - had significance for other similar cases as well, is not unusual for administrations with a large body of personnel, and does not lead to the contested selection decision having to be regarded as a "fundamental measure".

26 bb) Furthermore, the LAFP is not a "central office" or "supreme office" within the meaning of the aforementioned jurisprudence, but rather a higher federal state authority (see section 6 (2) of the Act on the Organisation of the Administration of the Federal State of North Rhine-Westphalia (LOG NRW, Landesorganisationsgesetz) of 10 July 1962, <Law and Ordinance Gazette of the Federal State of North Rhine-Westphalia (GV. NRW., Gesetz- und Verordnungsblatt Nordrhein-Westfalen) p. 421>, last amended by article 2 of the Act on the Establishment of the Federal State Office for Finance and Amending other Acts (Gesetz über die Errichtung des Landesamtes für Finanzen und zur Änderung weiterer Gesetze) of 16 July 2013, GV. NRW. p. 482). As the defendant's representatives also explained in the oral hearing before the Senate, the disputed promotion round in April 2013 only concerned police officers deployed with a specific LAFP division, but was not a promotion round for all district police authorities throughout the federal state. The fact - which the Court of Appeal invokes - that the LAFP coordinated its interpretation of the law with the Ministry of the Interior and for Municipal Matters (MIK, Ministerium für Inneres und Kommunales) is a usual process in a hierarchical administrative structure and does not lead to the contested selection decision being a decision by the Ministry, but rather serves to safeguard the LAFP's own legal opinion that the claimant was not entitled to request an occasion-related performance appraisal.

27 cc) Finally, the promotion selection in dispute here is not a decision based on a "special legislative act" within the meaning of the aforementioned jurisprudence. The LAFP may be particularly familiar with the preparation of performance appraisals and selection decisions, because, in its function as a higher federal state authority, it is also, and in particular, responsible for the "personnel matters" of the police - as can already be seen from the authority's name. However, the relevant provisions of the Act on the Status of Civil Servants (BeamtStG, Beamtenstatusgesetz) and of the Act on Civil Servants of the Federal State of North-Rhine Westphalia (LBG NRW, Landesbeamtengesetz) are no "special legislative acts". Rather, the law on civil servants is an interdisciplinary field of law which all employees who deal with performance appraisals and selection decisions in all federal state offices have to apply, and have to be equally familiar with.

28 3. However, fault can only be excluded under the so-called collegiate court rule if the judicial decision that approved an administrative measure as lawful is itself based on a comprehensive and diligent examination of the factual and legal situation. This is not the case if the collegiate court based its legal assessment on insufficiently investigated facts or failed to diligently and exhaustively evaluate the determined facts, based its assessment on an incorrect approach from the start, failed to take into consideration essential legal aspects, or if it is palpable that the court interpreted an unambiguous provision incorrectly (BVerwG, judgments of 4 May 1984 - 8 C 93.82 - (...) and of 17 August 2005 - 2 C 37.04 - BVerwGE 124, 99 <106 et seq.>; BGH, judgment of 7 February 1980 - III ZR 153/78 - (...)).

29 The first-instance judgment does not have such deficiencies. The Court correctly assumed that the defendant's selection decision of April 2013 was made on a sufficiently up-to-date appraisal basis. In particular, it was not necessary to prepare an occasion-related performance appraisal for the claimant due to her new deployment, now as a lecturer at the LAFP. A fortiori, it was not necessary to also prepare occasion-related performance appraisals for the other civil servants who were competing with the claimant and whose area of tasks had not changed. The fact that the Administrative Court did not address the non-involvement of the equal opportunities commissioner with regard to the "moving up" of junior inspector D. does not lead to its decision being deficient, as the non-involvement was irrelevant for the outcome of the selection decision.

30 4. Contrary to the view of the Court of Appeal, the defendant's selection decision of April 2013 was made on a sufficiently up-to-date appraisal basis. It was not necessary to prepare an occasion-related performance appraisal for the claimant because of her work as a lecturer at the LAFP which differed from her previous deployment of performing guard duty with a district police authority.

31 a) A selection decision on the award of a public post must meet the requirements of article 33 (2) GG, according to which every German citizen, subject to his or her aptitude, qualifications and professional performance, shall be equally eligible for any public office. The principle of selection of the best applicant grants every applicant a right that is equivalent to a basic right to be included into the selection of applicants without any errors as to the execution of discretion and as to the margin of appreciation (so-called right to be considered in an application procedure; established jurisprudence, see 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 para. 18; BVerwG, decision of 21 December 2016 - 2 VR 1.16 - BVerwGE 157, 168 para. 21).

32 The comparison of the applicants during a selection decision under service law in accordance with article 33 (2) GG must be based - in particular - on performance appraisals (established jurisprudence, see BVerfG, decisions of 11 May 2011 - 2 BvR 764/11 - Chamber Rulings of the Federal Constitutional Court (BVerfGK, Kammerentscheidungen des Bundesverfassungsgerichts) 18, 423 <427> and of 9 August 2016 - 2 BvR 1287/16 - (...) para. 78; BVerwG, decisions of 20 June 2013 - 2 VR 1.13 - BVerwGE 147, 20 para. 21 and of 21 December 2016 - 2 VR 1.16 - BVerwGE 157, 168 para. 23). A performance appraisal is to be prepared on the basis of findings concerning the performance of the relevant civil servant with regard to the specific post held, measured against the (abstract) requirements of the office conferred on civil servants according to their status which follows, inter alia, from their title, final basic salary, career path and career group (Statusamt, hereinafter office conferred according to the status). The point of reference of the performance appraisal is not the specific post held, but rather the civil servant's office conferred according to status.

33 The suitability of performance appraisals as a basis for the comparison of applicants requires that they are up-to-date (BVerwG, decision of 10 May 2016 - 2 VR 2.15 - BVerwGE 155, 152 para. 22 et seq.) and informative as to their content (BVerwG, judgment of 17 September 2015 - 2 C 27.14 - BVerwGE 153, 48 para. 14). To this effect, it is necessary for them to fully cover the official tasks during the relevant appraisal period, to be based on reliable sources, to demonstrate in a sufficiently differentiated manner the performance capabilities, and to be based on identical assessment standards (BVerwG, judgment of 27 November 2014 - 2 A 10.13 - BVerwGE 150, 359 para. 21; decisions of 20 June 2013 - 2 VR 1.13 - BVerwGE 147, 20 para. 18, 21 et seq. and of 21 December 2016 - 2 VR 1.16 - BVerwGE 157, 168 para. 24). Whether such performance appraisals are up-to-date depends on the period that has passed between their preparation (or the reference date for such appraisal) and the date of the selection decision (BVerwG, decision of 12 December 2017 - 2 VR 2.16 - BVerwGE 161, 59 para. 53).

34 b) As correctly assumed by the Administrative Court and by the Higher Administrative Court as a starting point, a routine performance appraisal is in principle sufficiently up-to-date if the reference date for the appraisal is no more than three years prior to the date of the selection decision (BVerwG, decision of 10 May 2016 - 2 VR 2.15 - BVerwGE 155, 152 para. 22, judgment of 30 June 2011 - 2 C 19.10 - BVerwGE 140, 83 para. 23 et seq. and decision of 24 May 2011 - 1 WB 59.10 - para. 32; OVG Saarlouis, decision of 26 October 2012 - 1 B 219/12 - headnote 1 and para. 32 et seqq.; Mannheim Higher Administrative Court (VGH, Verwaltungsgerichtshof), decision of 17 June 2016 - 4 S 585/16 - (...) para. 5; (...)). For federal civil servants, this has in the meantime been regulated by law in section 22 (1) second sentence BBG (in the version that has been in force since 12 February 2009) and by ordinance (section 48 (1) first alternative of the Federal Ordinance on Career Paths (BLV, Bundeslaufbahnverordnung)).

35 The same applies in the case in dispute here: Under no. 3.1 of the relevant Guidelines for Performance Appraisals of Civil Servants in the Police Force of the Federal State of North-Rhine Westphalia (BRL Pol NRW, Richtlinien für die dienstliche Beurteilung der Beamtinnen und Beamten im Bereich der Polizei) according to the Circular by the Ministry of the Interior - 45.2-26.00.05 - of 9 July 2010 (Ministerial Gazette of the Federal State of North Rhine-Westphalia (MBl. NRW, Ministerialblatt) p. 677) and according to the Circular by the Ministry of the Interior and for Municipal Matters - 403-26.00.05 - of 29 February 2016 (MBl. NRW p. 226), performance appraisals of civil servants must in principle be conducted every three years.

36 The reference date of the claimant's most recent routine performance appraisal (dated 5 September 2011) was less than three years (namely 21 to 22 months) before the selection decision in dispute here. The reference date for the performance appraisals on which the selection decision was based was 1 July 2011; the selection decision itself was made in April 2013 (at the latest). Accordingly, the selection decision was based on a sufficiently up-to-date performance appraisal, also with respect to the claimant.

37 c) However, even in the case of an appraisal system that is based on routine performance appraisals conducted at defined intervals, it may become necessary to update the basis of the appraisal in view of a pending selection decision. According to the Senate's jurisprudence, this may be the case if, after the reference date for the most recent routine performance appraisal, the civil servant, during a significant period of time (1), has performed substantially different tasks (2) (see BVerwG, judgments of 11 February 2009 - 2 A 7.06 - (...) para. 20, of 30 June 2011 - 2 C 19.10 - BVerwGE, 140, 83 para. 23 and decision of 10 May 2016 - 2 VR 2.15 - BVerwGE 155, 152 para. 23).

38 With regard to the question as to when the time-related (1) and qualitative (2) elements addressed above are being met, a wide-ranging but heterogeneous case-related jurisprudence of the courts responsible for finding the facts has developed. This means that it is necessary to clarify the standards of both elements. The Senate - modifying and further developing its jurisprudence - is of the opinion that a significant period in the above sense requires that, during a three-year routine performance appraisal period, the other tasks were performed during the (clearly) predominant portion (to be set at two thirds) of the appraisal period, i.e. for a period of two years. In the event of a two-year routine performance appraisal period, the time-related element is therefore usually not being met. Substantially different tasks in the above sense are performed only if the civil servant, in his or her changed area of tasks, performs tasks that are to be attributed to a different (usually higher) office conferred according to status.

39 aa) It is covered by the generally broad organisational discretion of the employer to establish regulations for the performance appraisal of its civil servants. Subject to the limits set by relevant laws and ordinances, the employer is to a large extend free to define the procedures and the content of performance appraisals by means of guidelines. It may, possibly via the individual supreme authorities, in accordance with its perception of the requirements in the individual administrative sectors (for instance in view of the size of the body of personnel, its composition, the hierarchical structure or spatial distribution of the administrative authority), introduce different appraisal systems, design a grading scale and determine the conceptual content of the individual grade designations. Otherwise, in view of this discretion and scope for action, it is all the more important for the employer to actually apply the selected appraisal system equally to all civil servants who may be in competition in selection decisions regarding their deployment and career. The uniformity of the appraisal standard is an indispensable requirement for the appraisal to serve its purpose, which is to allow a comparison of the civil servants based on predefined factual and differentiation criteria. A performance appraisal only obtains its main significance in view of its relation to the results of other performance appraisals (established jurisprudence, see, e.g., BVerwG, judgments of 2 April 1981 - 2 C 13.80 - (...), of 30 April 1981 - 2 C 26.78 - (...) and - 2 C 8.79 - (...) as well as of 2 March 2000 - 2 C 7.99 - (...)).

40 If the employer has issued guidelines on the preparation of performance appraisals, the court can only review whether those guidelines have been observed and whether they comply with the requirements, particularly those of the ordinance on career paths regarding performance appraisals, as well as other legal provisions. The performance appraisal itself is only subject to limited judicial review by the administrative courts; the review of the lawfulness must be limited to the question as to whether the authority misjudged the concept to be applied or the legal framework within which it can move freely, based its decision on incorrect facts, failed to observe generally applicable valuation standards, was guided by extraneous considerations or violated procedural rules (established jurisprudence, see, e.g., BVerwG, judgments of 27 October 1988 - 2 A 2.87 - (...) and of 5 November 1998 - 2 A 3.97 - (...)).

41 bb) As far as the types of performance appraisals are concerned, a distinction is made under aspects of time between periodic routine appraisals, i.e. appraisals that have to be prepared at defined intervals and on fixed reference dates (see, e.g., section 22 (1) second sentence BBG, section 48 (1) first alternative BLV), and occasion-related appraisals (requirement-based appraisals) which are prepared "if the work- or personality-related circumstances so require" (see, e.g., section 48 (1) second alternative BLV). The latter is the case in particular in the event of a forthcoming selection decision. The main objective of performance appraisals, which is to allow a comparison of several civil servants during selection decisions (promotions), is achieved "to the highest possible extent" through routine appraisals if and because they are based on appraisal periods which, in principle, are (almost) identical, with a common reference date. This uniformity ensures that the performance appraisal equally comprises the elements to be evaluated for all civil servants, not only at a given time, but also with regard to their development over time, independently of a specific selection decision (see BVerwG, judgments of 7 June 1984 - 2 C 54.82 - (...) and of 26 September 2012 - 2 A 2.10 - (...) para. 10). Occasion-related appraisals - prepared on the occasion of a forthcoming selection decision -, due to their reference to a specific occasion and a specific point in time, lead to associated "risks" and a "certain amount of scepticism" (...) that they may be used to implement pre-determined personnel decisions which do not comply with the requirements of article 33 (2) GG. This is why, according to the Senate's jurisprudence, an occasion-related performance appraisal conducted by the same employer that covers a significantly shorter period than the routine performance appraisal must be developed on the basis of the routine performance appraisal and may only further develop this routine performance appraisal. The shorter the period that has elapsed since the last routine performance appraisal and the larger the difference in assessment now attested to an applicant, the more is the appraiser obligated to provide grounds for such an improvement or deterioration of performance, including a plausible reasoning thereof, if applicable (see BVerwG, decision of 22 November 2012 - 2 VR 5.12 - BVerwGE 145, 112 para. 30).

42 cc) Potential "occasions" and constellations in which - also if the appraisal system is based on routine performance appraisals - it is irrefutably obvious that an occasion-related performance appraisal has to be conducted because the employer, without such, is unable to compare the applicants, may, for instance, be cases where applicants are no longer subject to the obligation to conduct routine performance appraisals because they have passed a specific age or because of the value of their office conferred according to status, cases where an applicant was already promoted after the last routine performance appraisal and now applies for another promotion, possibly also after or prior to a transfer or in view of a probation under aspects of the law governing civil servants' career paths (...). An update of a performance appraisal may also be required if, after the reference date for the most recent routine performance appraisal, the civil servant, during a significant period, has performed substantially different tasks (see BVerwG, judgments of 11 February 2009 - 2 A 7.06 - (...) para. 20, of 30 June 2011 - 2 C 19.10 - BVerwGE, 140, 83 para. 23 and decision of 10 May 2016 - 2 VR 2.15 - BVerwGE 155, 152 para. 23). The following statements refer to this constellation only.

43 dd) If the employer has decided to introduce a performance appraisal system based on periodic routine performance appraisals (in this case: to be prepared at three-year intervals), occasion-related performance appraisals required additionally - naturally - lead to new, additional administrative expenditure. The appeal on points of law argues that this expenditure is no longer proportionate on the basis of the judgment on the appeal on points of fact and law, insofar submitting numbers relating to its body of personnel and occasions requiring occasion-related appraisals, and is supported in its submissions by other employers and administrations in similar situations. In fact, each performance appraisal that has to be prepared ties up work capacity, for instance of the author of an appraisal contribution, of the competent (first, second or final) appraiser and of the staff of the personnel administration. Potential objections by the civil servants may require to give a plausible reasoning. The employer's understandable wish to limit the expenditure caused by additional occasion-related performance appraisals are opposed by the civil servant's rights under article 33 (2) GG which guarantee that a selection decision on his or her application will only be made on the basis of a sufficiently up-to-date performance appraisal, also where the area of tasks performed by him or her changes significantly after the date of the last routine performance appraisal and he or she therefore expects an improved assessment of his or her work.

44 This means that the case in dispute here ultimately is a conflict of objectives or optimisation between two competing interests, both of which are based on constitutional law: The employer can invoke the objective legal requirement to ensure high-performance public service (article 33 (2) and (5) GG) and a functioning administration (article 83 et seqq. GG), the civil servant, in contrast, can invoke the subjective legal guarantee of his or her right to be considered in an application procedure, based on article 33 (2) GG. Such opposing interests, based on conflicting constitutional rights, need to be balanced proportionately and in a manner that preserves each of them in the best possible way, according to the principle of practical concordance (see BVerfG, judgment of 24 October 2010 - 1 BvF 2/05 - BVerfGE 128, 1 <41>; BVerwG, judgment of 27 June 2013 - 2 A 2.12 - BVerwGE 147, 127 para. 28 and decision of 22 September 2017 - 2 C 56.16 et al. - BVerwGE 160, 1 para. 126).

45 Based on this, there is a risk that the obligation to prepare an occasion-related performance appraisal due to a change in the civil servant's area of tasks since the last routine performance appraisal may invalidate the employer's fundamental organisational decision in favour of a routine performance appraisal system, if this ties up personnel and administrative expenditure to a large, disproportionate extent. A development that comes close to a situation of permanent performance appraisal activities must be prevented. In contrast, the civil servant's legitimate interests guaranteed under article 33 (2) GG in his or her professional advancement are, in principle, sufficiently ensured by this civil servant participating in the periodic routine performance appraisals. It is, however, not the objective of a performance appraisal, not even in view of a promotion decision, to record and trace in detail - weekly, monthly, quarterly, semi-annually - each change of the area of tasks allocated to a civil servant that has taken place in the meantime. Such an obligation does not follow from article 33 (2) GG either, in particular as it is in the nature of a performance appraisal that the employer's value-based assessment of the civil servant is composed of a large number of actual events and individual moments that merge into an overall impression without it being necessary to document these impressions in the form of a "permanent performance determination procedure" (see BVerwG, judgments of 26 June 1980 - 2 C 8.78 - BVerwGE 60, 245 <248 et seqq.> and of 17 September 2015 - 2 C 27.14 - BVerwGE 153, 48 para. 18).

46 In the event of a long-standing affiliation to the public service, a larger number of (routine) performance appraisals which record and evaluate the civil servant's performance profile (also) exist if a three-year routine performance appraisal interval applies (even more so if the interval is shorter). In this context, it is apparent that the tasks associated with the various posts sometimes correspond to a larger, sometimes to a smaller extent to the civil servant's performance capabilities (or merely to his or her wishes), and that there may be posts where he or she, more than in others, is able to better bring to bear his or her strengths. This has to be accepted. For instance, work in the planning office of the municipal and city administration may above all require design skills whilst work in the auditing office requires primarily accuracy of control and numbers, and entirely different (e.g. communication) skills may be at the focus in an office with a higher frequency of visits by the public, even though all of the above tasks are exercised under the same office conferred according to status and in the same career path (of the general administrative service).

47 The described conflict of interests exists in particular in administrations which - as in the case in dispute - have a broad, differentiated spectrum of entirely different areas of tasks and where the civil servants frequently change their areas of tasks. During the oral hearing, the defendant's representatives vividly described for the area of the police of the defendant federal state that and how deployment of the police officers may change between work (for instance) in shift-based guard duty at a district police authority, for the criminal police, in the general administrative service or as an instructor at the LAFP. The civil servants concerned exercise all of these activities under the same office conferred according to status. However, performance appraisals are - even though on the basis of the performance achieved in the relevant post - to be prepared in relation to the office held according to status. If this office conferred according to status does not change, but only the area of tasks - complying with the office conferred according to status and the career path - in which the civil servant can demonstrate his or her performance capabilities, it seems justified to require him or her to accept that his or her performance will (only) be evaluated again in the periodic procedure at the reference date of the next routine performance appraisal.

48 ee) Based on the above considerations, the Senate, after reviewing its previous jurisprudence, is of the opinion that the two criteria mentioned above (see para. 37 et seq.) have to be (re-)adjusted and specified as follows:

49 (1) In terms of time, section 22 (1) second sentence BBG and section 48 (1) first alternative BLV provide orientation, according to which a routine performance appraisal has to be prepared at least once every three years. A certain indication can also be derived from the provision that probationary civil servants must be evaluated at the latest after one half of the usual three-year probationary period (section 28 (1) and (4) first sentence BLV). It also needs to be considered that a substantial change in the tasks performed usually initially requires some time of work familiarisation and will then first have to be performed for a period of certain duration, demonstrating a somewhat constant performance level, before it can become the basis of a new appraisal. This indicates that the period elapsed after expiry of which the civil servant is justified to request that his or her performance be documented again in a performance appraisal, must be of sufficient duration. Therefore, a significant period in the above sense only applies if, in the event of a three-year routine performance appraisal period, the other tasks were performed during the (clearly) predominant portion, i.e. two thirds, of this appraisal period. The determination of the two-year time limit is - inevitably, as must be said - "created" by jurisprudence. The Senate is of the opinion that a clear (quantified) time limit such as this is required. Clear limits serve to ensure legal certainty and administrative practicability.

50 The Senate clarifies that this limit means that, consequently, this element is not being met in the event of a performance appraisal with a two-year routine appraisal interval and that, in such a system, the employer is not obligated to prepare an occasion-related performance appraisal if the civil servant's area of tasks changes substantially.

51 (2) Regarding the qualitative element, i.e. the question as to when "substantially" different tasks within the meaning of the previous jurisprudence described above (para. 37 et seq.) are being performed so that an occasion-related performance appraisal is required, this has to be specified in that it has to be an activity that is to be attributed to a different (usually higher) office conferred according to status.

52 The basis for this is the status-dependency of the performance appraisal already mentioned above. This leads to the following: The condition for a change in the area of tasks being categorised as substantial is that it has to be "relevant with regard to performance and appraisal" (see BVerwG, judgment of 30 June 2011 - 2 C 19.10 - BVerwGE 140, 83 para. 23). A mere change in the specific area of tasks, usually due to a transfer to a different post, possibly (probably less frequently) in the same post (due to the allocation of new tasks), does not have this relevance with regard to the appraisal. Even though the performance appraisal - as has been stated before - is to be prepared on the basis of the performance in the relevant post, its standard and point of reference is the office held according to status. The post is, as it were, (only) the "stage" for the performance of the requirements demanded by the relevant office conferred according to status. The nature of the execution of the post and the tasks to be performed there (only) serves as a visible source of information for the appraisal relating to the office conferred according to status. The collection and analysis of such information is not required indefinitely and is not carried out randomly, but (only) serves the purpose of forming a plausible basis for the employers value-based assessment regarding the civil servant's aptitude, qualifications and performance, which has "merged" (anyway) into an overall impression (BVerwG, judgments of 26 June 1980 - 2 C 8.78 - BVerwGE 60, 245 <248 et seqq.> and of 17 September 2015 - 2 C 27.14 - BVerwGE 153, 48 para. 18).

53 Activities that do not have this relevance with regard to performance and appraisal can therefore not be "substantial" enough to create an obligation to record and evaluate them in advance - i.e. before the reference date of the next routine appraisal - as part of an (occasion-related) performance appraisal. This applies, for instance, to so-called "personnel development measures" where civil servants are individually supported through rotation, job shadowing, the enhancement and extension of tasks, special tasks and project work, in order to increase their potential range of deployment (see, e.g., OVG Lüneburg, decision of 21 September 2011 - 5 ME 241/11 - (...) para. 11), and also to a training or qualification measure, like the one the claimant experienced with regard to her work as a lecturer at the LAFP (for a period of approximately four weeks).

54 The new tasks are to be attributed to a different office conferred according to status only if they exclusively correspond to different pay grades than the civil servant's previous tasks. For so-called bundled posts, this will only be the case if the post does not belong to the same pay grade as the civil servant's previous tasks. This corresponds to the Senate's jurisprudence on section 46 of the Federal Civil Servants' Remuneration Act, old version (BBesG a.F., Bundesbesoldungsgesetz, alte Fassung) (see BVerwG, judgments of 25 January 2007 - 2 A 2.06 - (...) para. 12, of 30 June 2011 - 2 C 19.10 - BVerwGE 140, 83 para. 30 and of 25 September 2014 - 2 C 16.13 - BVerwGE 150, 216 para. 27). The Federal Constitutional Court likewise assumes that, also in the event of bundled posts, (only) a higher office conferred according to status is associated with increased requirements and a higher level of responsibility (see BVerfG, decision of 16 December 2015 - 2 BvR 1958/13 - BVerfGE 141, 56 at the end of para. 59).

55 However, new tasks are also to be attributed to a different office conferred according to status if they belong to the same pay grade but not to the same career path as the civil servant's previous tasks, for instance if a civil servant changes from the technical administrative service (see, e.g., section 6 (2) no. 2 BLV) to the non-technical administrative service (section 6 (2) no. 1 BLV). In this case, the normative decision to summarise offices in different career paths and to differentiate them already means that the associated tasks are "substantially" different. This also complies with the Senate's jurisprudence, according to which the office conferred according to status is defined by three elements, namely the fact that the office conferred according to status belongs to a career path and career group, the title awarded to the civil servant and the final basic salary of the pay grade (see BVerwG, judgments of 7 June 1984 - 2 C 84.81 - BVerwGE 69, 303 <306> and of 22 June 2006 - 2 C 26.05 - BVerwGE 126, 182 <183 et seq.> with further references; see also BVerfG, decision of 17 January 2012 - 2 BvL 4/09 - BVerfGE 130, 52 <69>).

56 ff) Applying these standards leads to the conclusion that in the case in dispute here, neither the time-related nor the qualitative element for an occasion-related performance appraisal of the claimant are met. She exercised her new tasks as a lecturer at the LAFP during a period of approximately 21 months since the last routine performance appraisal. Furthermore, her new tasks were not attributed to a different office conferred according to status (with a higher value), but she performed them in a post which, as her previous post, had a ("bundled") value level of pay grades A 9 to A 11.

57 5. Even assuming it had been necessary to prepare an occasion-related performance appraisal for the claimant because she actually performed substantially different tasks during a significant period, this would not mean that occasion-related performance appraisals also had to be prepared for all other competing applicants whose field of tasks had not changed. Even if it were required with regard to one applicant to update the appraisal (which, for the following argumentation, is assumed to be the case), this would not for this reason alone (inevitably, "automatically") lead to a "tag-along" and updating requirement also for the other competing applicants to whom an own, primary updating requirement does not apply.

58 However, in a case where several civil servants had completed the probationary period prescribed under the law governing civil servants' career paths in a higher post only after the routine performance appraisal, and whose routine performance appraisals therefore were no longer sufficiently up-to-date, the Senate held that "it was unobjectionable" that the other applicants' appraisals "tagged along", even though for them, this was "by itself not necessary" (BVerwG, decision of 22 November 2012 - - 2 VR 5.12 - BVerwGE 145, 112 para. 29). Insofar, it first has to be emphasised that, in the cited case, the Senate did not consider the employer to be under a corresponding obligation, but rather merely held that a (voluntary) tag-along of the performance appraisals of the other competing applicants was "appropriate". In as far as the Senate, in the cited decision, referred to the requirement to strive for the best possible comparability of the appraisal periods, in particular regarding their end dates, to ensure equality of opportunities, it furthermore needs to be clarified that, in a performance appraisal system with periodic routine performance appraisals, the mentioned "best possible" comparability is already achieved through the common reference date and the identical routine appraisal period (see BVerwG, judgment of 26 September 2012 - 2 A 2.10 - (...) para. 10). When comparing routine performance appraisals, there are also numerous constellations where deviations may occur with regard to the common reference date and appraisal period, for instance because a different appraisal regime with different periods and reference dates may have applied to an applicant before, or because (for instance) an applicant was on leave for a longer period. The resulting limitations regarding the cited principle must be accepted (see BVerwG, judgment of 26 September 2012 - 2 A 2.10 - (...) para. 11). A legal principle according to which performance appraisals always and "absolutely" have to be identical with regard to the appraisal period and the reference date, does not exist. The "best possible" comparability is an optimisation objective that can always only be strived for to the best possible extent.

59 Even in as far as the - inhomogeneous - case-related supreme court jurisprudence in proceedings contesting the appointment of a competitor (Konkurrentenstreitverfahren) focuses on the requirement that each applicant's appraisal must be sufficiently up-to-date, also in relation to the competing applicants' appraisals (see, e.g., OVG Münster, decision of 08 June 2006 - 1 B 195/06 - (...) para. 5; VGH Mannheim, decision of 15 March 2007 - 4 S 339/07 - (...); OVG Lüneburg, decision of 4 September 2008 - 5 ME 291/08 - (...)), this requirement does not apply absolutely either. These decisions are correct in that a recent occasion-related performance appraisal prepared for an applicant must not give him or her an advantage in comparison with other applicants with routine performance appraisals which would affect the other applicants' right to be considered in an application procedure due to the fact that more recent information could be included in the appraisal for the applicant with the occasion-related appraisal. However, it must be noted that a performance appraisal system that provides not only for routine appraisals, but, in certain cases, supplementary occasion-related appraisals, inevitably accepts different appraisal periods and different levels of actuality of the performance appraisals in a selection decision. Such differences have to be accepted for practical reasons, provided that a comparison of qualifications on the basis of these performance appraisals continues to be possible without any significant discrimination of one of the applicants under aspects of the selection of the best applicant (as held correctly by OVG Münster, decision of 26 January 2009 - 6 B 1594/08 - (...) and OVG Koblenz decision of 2 July 2014 - 10 B 10320/14 - (...)).

60 This also applies in the constellation in dispute here, where the Court of Appeal, because it held that an occasion-related performance appraisal was necessary for the claimant, assumed that merely as a consequence of the claimant's resulting "actuality headstart", an unacceptable "actuality difference" existed. The Senate does not follow this opinion.

61 Whether updating is required must, as a starting point, be considered separately for each applicant. If the requirements discussed above (para. 37 et seqq.),according to which, due to substantially different tasks having been performed during a significant period, an occasion-related performance appraisal has to be prepared, are not met for one of the competing applicants, this applicant's most recent routine performance appraisal is sufficiently up-to-date, provided it dates back no longer than the routine appraisal period (here: three years). It does not automatically become "outdated" because an occasion-related performance appraisal has become necessary for one (or several) civil servant(s) in exceptional cases - for the reasons cited above. This is due to the fact that the latter only became necessary because this was the only way to take into account the applicant's substantially changed area of tasks and the resulting (potential) distinctive aspects of his or her performance development (BVerwG, judgment of 30 June 2011 - 2 C 19.10 - BVerwGE 140, 83 para. 23). If, however, neither the scope of tasks nor their quality have changed for a competing applicant and if no indications exist of a - resulting - material change in his or her performance capability - there is no reason to consider a routine performance appraisal to be unsuitable for the comparison of performance, even in the event of major time differences between a more recent occasion-related performance appraisal and the last routine performance appraisal (see to this effect OVG Koblenz, decision of 2 July 2014 - 10 B 10320/14 - (...) for a difference of a little over one and a half years).

62 The exception that an occasion-related performance appraisal becomes necessary does not result in all civil servants with routine performance appraisals now also being covered by the exceptional category for this reason alone, so that the exception would become the predominant application case. Otherwise, the requirement of up-to-date appraisals would result in performance appraisals creating new updating requirements like a "perpetuum mobile", for instance if additional applicants join the process before the selection process has become ready for a decision.

63 For the case in dispute, this means: According to the findings of the Court of Appeal, there are no indications that a comparison of qualifications in the above sense between the claimant and her competing applicants was not possible on the basis of their existing routine performance appraisals, or that such comparison could only be conducted with a material discrimination of these competing applicants.

64 6. Furthermore, it is not a deficiency that would justify the non-applicability of the collegiate court rule that the first-instance court did not object to the selection decision in its judgment even though the overall result in the claimant's routine performance appraisal of 5 September 2011 on which the selection decision was based did not comprise detailed grounds. This is because the overall result follows directly from the evaluation of the seven individual elements.

65 According to the Senate's jurisprudence, the overall result of a performance appraisal that has been prepared in the so-called check-box procedure usually requires separate grounds in order to disclose how this overall result was derived from the individual grounds. The same applies to the procedure used here, where the performance appraisal is prepared exclusively by providing a numerical value (or a character value) the conceptual content of which is defined (generally) in more detail in the appraisal guidelines or in the performance appraisal itself. An exception is recognised for the constellation that, in the specific case, a different grade does not come into consideration because the decision in favour of the awarded grade - similar to cases where discretion is reduced to only one lawful decision (Ermessensreduzierung auf Null) - is almost obvious (BVerwG, judgments of 17 September 2015 - 2 C 27.14 - BVerwGE 153, 48 para. 30 and 37 and of 1 March 2018 - 2 A 10.17 - BVerwGE 161, 240 para. 41 et seqq.).

66 The Senate's jurisprudence cited above relates to constellations where the employer places different significance on the - usually numerous - individual elements. The grounds of the overall result must disclose the weighting of the individual elements and must also take into consideration this weighting prescribed by the employer. This does not apply if the employer limits the performance appraisal to a comparably small number of individual elements - in this case seven or, if a civil servant performs the function of a superior, eight - and places similar significance (equal weight) on each of them. In the case in dispute here, this equal weighting results from the underlying appraisal guidelines as well as from the submission of the defendant's representative during the oral hearing of the appeal on points of law. It is furthermore legally unobjectionable in view of the description of the individual elements in the appraisal guidelines (on the limits of such weighting, see BVerwG, judgment of 1 March 2018 - 2 A 10.17 - BVerwGE 161, 240 para. 46). In these cases, the overall result can easily be derived from the distribution of the individual elements.

67 7. Contrary to the assumption of the Court of Appeal, the selection decision in dispute here is also not unlawful because the equal opportunities commissioner was not involved again during the retroactive inclusion of junior inspector D. In conclusion, this is irrelevant for the assessment of the claimant's claim for damages.

68 Pursuant to section 18 (2) first sentence of the Equal Opportunities Act of the Federal State of North Rhine-Westphalia (LGG NRW, Landesgleichstellungsgesetz) of 9 November 1999 (GV. NRW p. 590) in the version in force until 14 December 2016 which is decisive here (hereinafter LGG NRW, old version), the equal opportunities commissioner must be informed and heard at an early stage on proposed measures. If she is not involved in a timely manner, section 18 (3) first sentence LGG NRW, old version, requires that the measure, as a matter of principle, must be suspended for one week and participation must be conducted subsequently. Pursuant to section 17 (1) no. 1 LGG NRW, old version, the measures in which the equal opportunities commissioner is involved encompass in particular personnel measures, including job advertisements and selection processes.

69 According to the findings of the Court of Appeal, the equal opportunities commissioner was properly involved in the case in dispute here, insofar as she approved the proposed appointment of the "police officers named" in the letter of 9 April 2013. However, she was not involved in the appointment of the "alternate" junior inspector D. who, due to an oversight, was included retroactively.

70 The assumption of the Court of Appeal that the contested selection decision was unlawful because, due to this, it was made in violation of a procedural rule, and because it is not obvious within the meaning of section 46 of the Administrative Procedure Act of the Federal State of North Rhine-Westphalia (VwVfG NRW, Verwaltungsverfahrensgesetz für das Land Nordrhein-Westfalen) that this procedural error did not influence the decision on the matter (i.e. that the procedural error is not "irrelevant") constitutes a violation of law that is subject to an appeal on points of law within the meaning of section 137 (1) no. 2 VwGO.

71 In this context, the Senate leaves unanswered the question as to whether section 46 VwVfG NRW which rules out the annulment of an administrative act, i.e. relates to actions for annulment, is also applicable (possibly mutatis mutandis) to the constellation in dispute here of an action for a declaratory judgment where a ruling on the original request for a new decision on the merits has become devoid of object. The same applies to the question as to whether the exclusion of the right to annulment provided for in section 46 VwVfG NRW also covers the different, special consequence of an error provided for in section 18 (3) first sentence LGG NRW, according to which the selection decision which is subject to a procedural error is (only) to be suspended and participation is to be conducted subsequently. Even if this were the case, it is, in any case, obvious within the meaning of section 46 VwVfG NRW that the procedural error of the non-involvement of the equal opportunities commissioner did not have an influence on the decision on the matter.

72 A violation of a procedural rule is only considered to obviously have no influence on the decision on the matter if the court can assume without doubt and without any speculation that the decision would have been the same had the error not occurred. A causal link is, however, to be assumed to exist if, according to the circumstances of the relevant case, there is a concrete possibility that the decision would have been different without the assumed procedural deficiency (established jurisprudence, see BVerwG, judgments of 30 May 1984 - 4 C 58.81 - BVerwGE 69, 256 <270> and of 28 June 2018 - 2 C 14.17 - (...) para. 32; (...)).

73 The appeal judgment does not meet these requirements. The Court of Appeal states that it cannot be ruled out that the equal opportunities commissioner, had she been duly involved, would have raised objections against the selection decision relating to junior inspector D., in particular against the routine performance appraisal prepared for her, and that the LAFP may have reconsidered, and refrained from, its selection decision. With this, the Court of Appeal on the one hand makes speculative (and, as such, impermissible) assumptions, while it, on the other hand, fails to take into account material factual circumstances of the specific individual case.

74 These specific circumstances are that, in the case in dispute here, the equal opportunities commissioner was not entirely left out of the process, so that initially - regarding the original promotion ranking - participation was carried out properly. This is the relevant starting point. Insofar, the decisive aspect is that the equal opportunities commissioner did not raise any objections against the appraisal and points system on which this promotion ranking was based. Also, the equal opportunities commissioner did not demand to be provided with the names of the other applicants who were not considered, and the selection aspects relating to them. Against this background, it is not apparent which objections the equal opportunities commissioner may have raised particularly and only against the retroactive inclusion of junior inspector D., after she had not challenged the promotion ranking as such. The considerations of the Court of Appeal that the equal opportunities commissioner may have raised objections against the routine performance appraisal of this civil servant and may therefore have caused the LAFP to refrain from this selection decision are speculative. However, one of the specific circumstances of the individual case is that the claimant, who ranked 81 in the list, was positioned twelve places, and therefore significantly, below the last place in the ranking (position 69) which was taken into consideration in the promotion round. It can be ruled out that the claimant may have advanced to rank 69 due to the fact that the defendant - as has been demonstrated - was not obligated to prepare an occasion-related performance appraisal for her due to her work as a lecturer at the LAFP, and as, based on the above, the selection decision which was based on the claimant's last routine performance appraisal was unobjectionable overall.

75 Under these circumstances, it is obvious within the meaning of section 46 VwVfG NRW that the non-involvement of the equal opportunities commissioner with regard to the retroactively included junior inspector D. did not have any influence on the decision on the matter.