The legal dispute concerns the determination of the disciplinary measures for off-duty possession of child pornography by a teacher.

Born in 1963, the unmarried defendant civil servant has been employed as a teacher at the office of entry to the higher teaching service (Studienrat) (...) of the claimant federal state since 2002. In the year 2014, he was sentenced by final and binding penal order (Strafbefehl) to a fine of 50 daily units for private possession of child pornography.

In disciplinary proceedings involving the same matter, the Administrative Court (Verwaltungsgericht) dismissed the claimant's disciplinary action aimed at the removal of civil servant status. The appeal on points of fact and law brought against this judgment was not successful. Regarding the possession of child pornography, the Higher Administrative Court (Oberverwaltungsgericht) in each case concluded that such possession constituted off-duty conduct. By virtue of the special duties involved when holding the office of a teacher, it therefore affirmed the relation between the off-duty conduct and the public office held, which is required to constitute a disciplinary offence. However, based on the sentencing range, the individual sentencing - a fine - and on the number and the content of the image files, these were merely cases in the lower range of possible forms of commission. Therefore, imposing the maximum disciplinary measure was excluded.

6 The claimant's appeal on points of law is well-founded. The appeal judgment violates the law that is subject to an appeal on points of law (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), sections 3 and 41 of the Disciplinary Act of the Federal State of Berlin (DiszG BE, Disziplinargesetz Berlin) of 29 June 2004, (Law and Ordinance Gazette (GVBl., Gesetz‑ und Verordnungsblatt) p. 263), namely section 13 (1) second to fourth sentence and (2) first sentence DiszG BE.

7 The Court of Appeal made a decision on the determination of the disciplinary measure which does not meet the legal requirements under section 13 (1) and (2) DiszG BE as, when carrying out the individual case-related overall assessment of the off-duty misconduct the defendant was charged with (1.), it did not sufficiently take into account that, as a general rule, the possession of child pornography by teachers entails removal of civil servant status (2.). The Senate makes use of its competence conferred upon it under section 41 DiszG BE, sections 70 and 65 (1) and 60 (2) Federal Disciplinary Act (BDG, Bundesdisziplinargesetz) to conclusively determine the disciplinary measure itself based on the factual findings of the Court of Appeal (3.).

8 1. By possessing child pornography in private - here in the form of image and video files - the defendant committed an off-duty breach of duty particularly suited to impair trust in a manner relevant to the office held and must therefore be qualified a disciplinary offence (section 47 (1) second sentence BeamtStG).

9 a) According to the factual findings contained in the penal order on which the Court of Appeal based its decision without legal error in accordance with section 41 DiszG BE in conjunction with sections 70 (1), 65 (1) first sentence and 57 (2) BDG, which were not disputed by the defendant, the defendant possessed child pornography and thus committed a less serious criminal offence (Vergehen) pursuant to section 184b (4) second sentence German Criminal Code (StGB, Strafgesetzbuch) in its version of 27 December 2003 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 3007 <3009>) in force at the time the offence was committed.

10 This misconduct took place off-duty, as it was neither formally part of the office held by the defendant nor was it substantively involved in the official activity associated with it (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) judgment of 18 June 2015 - 2 C 9.14 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 152, 228 para. 10).

11 b) Even when off-duty, a civil servant is under an obligation to live up to the respect and trust which his or her profession requires (section 34 third sentence BeamtStG; BVerwG, judgment of 28 July 2011 - 2 C 16.10 - BVerwGE 140, 185 para. 21). Any off-duty conduct may touch upon the civil servant's official duties if it has a bearing on respectability and trustworthiness and thereby indirectly gains relevance in terms of service law. Pursuant to section 47 (1) second sentence BeamtStG, civil servants' off-duty conduct is only to be qualified as disciplinary offence where, according to the circumstances of the individual case, such conduct is particularly suited to impair trust in in a manner relevant to the office they hold (BVerwG, judgment of 18 June 2015 - 2 C 9.14 - BVerwGE 152, 228 para. 12). Below this threshold, the legislature does not expect substantially different social conduct from civil servants than from any other citizen (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 16/7076 p. 117 on the Act on Federal Civil Servants (BBG, Bundesbeamtengesetz) and BT-Drs. 16/4027 p. 34 on the BeamtStG; see also BVerwG, judgments of 30 August 2000 - 1 D 37.99 - BVerwGE 112, 19 <26 et seq.> and of 27 June 2013 - 2 A 2.12 - BVerwGE 147, 127 para. 24). Therefore, as a general rule, off-duty road traffic offences for example, do not give rise to a need for disciplinary sanctions (see BVerwG, judgment of 30 August 2000 - 1 D 37.99 - BVerwGE 112, 19 <23> on one-time drink-driving).

12 Whether and to what extent a civil servant's off-duty conduct impairs the trust required for the office he or she holds, depends to a large extent on the nature and intensity of the misconduct in question (see Federal Constitutional Court, (BVerfG, Bundesverfassungsgericht), chamber decision of 19 February 2003 - 2 BvR 1413/01 - (...) para. 30). In this context, intentional criminal offences are of particular importance (BVerwG, judgment of 28 July 2011 - 2 C 16.10 - BVerwGE 140, 185 para. 24; see also section 24 (1) first sentence BeamtStG). It is also of importance whether the breach of duty by the civil servant shows a relation to the office he or she holds.

13 c) The criterion for determining the relation to the office held, is 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 legal position of the civil servant is determined by the office conferred according to the status he or she holds (BVerwG, judgment of 11 December 2014 - 2 C 51.13 - BVerwGE 151, 114 para. 28). It is the office conferred according to the status - and not the activity associated with the post currently held - that determines the area of tasks in which the civil servant is given appropriate employment and in which he or she can therefore be used in future. In addition, reference made to the office conferred according to the status follows from the substantive duties imposed on the civil servant according to section 34 third sentence BeamtStG. While the second sentence of this provision refers to the tasks assigned to the civil servant, the first and the third sentence each refer to the profession. The obligation to devote oneself to one's profession with full personal commitment is not limited to the current official post held, but extends to all official posts that may be held under the office conferred according to the status.

14 However, the way in which the disciplinary offence is factually related to the specific area of tasks may have indicative effect. The civil servant is identified with the specific office assigned to him or her; he or she shall perform this office unselfishly, in all conscience and with full personal responsibility for the lawfulness of his or her official acts (section 34 first and second sentence as well as section 36 (1) BeamtStG). The closer the relation between the civil servant's off-duty misconduct and the area of tasks assigned to him or her, the more one can conclude that his or her conduct is suitable to impair the trust that his or her profession requires (BVerwG, judgments of 8 May 2001 - 1 D 20.00 - BVerwGE 114, 212 <218 et seq.> and of 18 June 2015 - 2 C 9.14 - BVerwGE 152, 228 para. 20).

15 d) Off-duty possession of child pornography by the civil servant, which was punished under criminal law, is sufficiently and clearly related to the office conferred according to the status of a teacher at the office of entry to the higher teaching service.

16 There is relevant relation to the office held where the off-duty conduct impairs the civil servant performing his or her duties. This is the case because off-duty possession of child pornography by a teacher indicates a lack of personality, which gives rise to doubts as to the teacher's ability to always fulfil the educational task incumbent on him or her as an official duty towards the pupils entrusted to him or her. Once such misconduct becomes known, a teacher is at least severely impaired in performing his or her tasks, because he or she violated elementary rights of precisely the group of persons whose protection and education is incumbent upon and entrusted to him or her as a duty. In this respect, mere suitability is sufficient; there is no need for any concrete damage to reputation or concrete assaults to have occurred (see BVerwG, judgment of 19 August 2010 - 2 C 5.10 - (...) para. 15; most recently, decision of 17 June 2019 - 2 B 82.18 - (...) para. 16).

17 Whoever possesses child pornographic material (section 184b StGB), does, by his or her demand for such depictions, contribute to the aggravated sexual abuse of children (section 176a (2) StGB) and thus to the violation of their human dignity and physical integrity. The sexual abuse of a child is highly damaging to his or her personality and social integrity. It interferes with the moral development of a young person and jeopardises the harmonious formation of his or her overall personality and his or her integration into the community, since, as a rule, due to his or her lack of or his or her insufficient maturity, a child is unable to or has difficulty coping with his or her experiences, both intellectually and emotionally. In addition, the offender degrades the sexually abused child victim to a mere interchangeable object of sexual desire or arousal (BVerwG, judgment of 19 August 2010 - 2 C 5.10 - (...) para. 16 with further references).

18 Therefore, where teachers as civil servants entrusted with a special position of responsibility and trust vis-à-vis a particularly vulnerable group of persons - the pupils entrusted to their care - are concerned, the intention of section 77 (1) second sentence BBG and section 47 (1) second sentence BeamtStG, that is to limit the disciplinary relevance of off-duty breaches of duty, does not apply (see BVerwG, judgment of 18 June 2015 - 2 C 9.14 - BVerwGE 152, 228 para. 39 for criminal offences committed by police officers).

19 2. The Higher Administrative Court correctly ascertained the disciplinable nature of the defendant's off-duty conduct in accordance with the standards set out hereinabove. However, dismissing the disciplinary action violates section 13 (1) second to fourth sentence and (2) first sentence DiszG BE.

20 a) Pursuant to section 13 (1), second to fourth sentence DiszG BE and to the determination rules under the disciplinary laws of the Federation and of the other federal states corresponding in content to this provision, the decision on the disciplinary measure is to be made in accordance with the seriousness of the disciplinary offence and with due regard to the personality profile of the civil servant and the extent to which the trust of the employer or the general public has been impaired. Thus, the bearing of the breach of duty is the starting point and the guiding determination criterion in order to identify the disciplinary measure necessary (BVerwG, judgment of 29 October 2013 - 1 D 1.12 - BVerwGE 148, 192 para. 39 et seq.). This is based on the principle of individual guilt and the principle of proportionality, both of which must also be observed in disciplinary proceedings (BVerfG, chamber decision of 8 December 2004 - 2 BvR 52/02 - Chamber Rulings of the Federal Constitutional Court (BVerfGK, Kammerentscheidungen des Bundesverfassungsgerichts) 4, 243 <257>; BVerwG, judgment of 15 November 2018 - 2 C 60.17 - BVerwGE 163, 356 para. 34). The disciplinary measure pronounced against the civil servant must be in fair proportion to the seriousness of the disciplinary offence and of the civil servant's culpability, taking into account all incriminating and exonerating circumstances of the individual case (BVerwG, judgments of 20 October 2005 - 2 C 12.04 - BVerwGE 124, 252 <258 et seq.> and of 15 November 2018 - 2 C 60.17 - BVerwGE 163, 356 para. 34).

21 Removal of civil servant status as the maximum disciplinary measure is only permissible where the civil servant has definitively lost the trust required to perform his or her duties in office, due to a culpable breach of a duty incumbent on him or her (section 13 (2) first sentence DiszG BE). Civil servant status is established for life and cannot be terminated unilaterally by the employer. Breaches of duty by the civil servant therefore require the employer to be able to react and exert influence. Disciplinary law provides for measures in order to require the civil servant to fulfil his or her duties in the event of a disciplinary offence or - if the required trust is definitely lost - to remove him or her from civil servant status. This is the only way to maintain the integrity of the professional civil service and trust in the proper performance of the civil servants' tasks (BVerwG, judgments of 23 January 1973 - 1 D 25.72 - BVerwGE 46, 64 <66 et seq.>, of 25 July 2013 - 2 C 63.11 - BVerwGE 147, 229 para. 21 and of 27 February 2014 - 2 C 1.13 - BVerwGE 149, 117 para. 16 et seq.).

22 The administrative courts determine the disciplinary measure necessary on the basis of their own determination decision pursuant to section 13 (1) and (2) DiszG BE if, after comprehensive inquiry into the facts (section 41 DiszG BE in conjunction with section 58 BDG and section 86 (1) and (2) of the Code of Administrative Court Procedure, (VwGO, Verwaltungsgerichtsordnung)), they reach the conclusion that the civil servant committed the acts he or she was charged with in the disciplinary application, in breach of his or her official duties and that there is no legal impediment to the pronouncement of the disciplinary measure (section 41 DiszG BE in conjunction with section 60 (2) first sentence and second sentence no. 1 BDG). In doing so, they are not bound by the factual findings and the legal assessments of the claimant employer (BVerwG, judgments of 3 May 2007 - 2 C 9.06 - (...) para. 11 and of 25 March 2010 - 2 C 83.08 - BVerwGE 136, 173 para. 9 as well as decision of 14 June 2005 - 2 B 108.04 - (...)).

23 b) Serious intentional criminal offences generally cause a loss of trust, rendering any further employment as civil servant unacceptable, regardless of the office concerned.

24 aa) Pursuant to section 24 (1) first sentence no. 1 BeamtStG, a conviction on account of an intentional criminal offence with a sentence to at least one year's imprisonment necessarily entails the loss of the civil servant rights. The legislature has irrefutably inferred the extent to which trust is impaired from the level of the penalty imposed (regarding consideration of the level of penalty imposed on the civil servant see also BVerwG, decision of 25 May 2012 - 2 B 133.11 -(...) para. 10). Conversely, off-duty conduct which does not constitute a criminal offence, regularly does not justify imposing the maximum measure (BVerfG, chamber decisions of 14 June 2000 - 2 BvR 993/94 - (...) para. 11 and of 8 December 2004 - 2 BvR 52/02 - BVerfGK 4, 243 <257 et seq.>).

25 Serious criminal offences may be identified in relation to the offence committed (see on the allocation of certain criminal offences to one of the disciplinary measures listed in the catalogue of section 5 BDG: BVerwG, judgment of 29 October 2013 - 1 D 1.12 - BVerwGE 148, 192 para. 40 with further references). Certain criminal offences do already cause a loss of trust due to the very nature of the wrongdoing, which excludes any further activity as a civil servant. If a civil servant accepts bribes, he or she is no longer conceivable as administrator of a law-abiding and independent administration (BVerfG, chamber decision of 19 February 2003 - 2 BvR 1413/01 - (...) para. 30; BVerwG, judgment of 28 February 2013 - 2 C 3.12 - BVerwGE 146, 98 para. 29). For this reason, section 24 (1) first sentence no. 2 BeamtStG provides, among other things, that the civil servant status of a civil servant convicted of bribery in due criminal proceedings by a judgment of a German court and sentenced to at least six months' imprisonment, shall end upon the judgment becoming final and binding.

26 The same applies to an intentional off-duty sexual offence against a child within the meaning of section 176 (1) StGB, which was punished by a sentence to imprisonment. Without regard to the office conferred according to the status the civil servant holds, such a criminal offence is liable to impair the reputation of the professional civil service so seriously that the removal of civil servant status or deprivation of entitlement to a civil-servant pension may serve as guidance for determining the disciplinary measure.

27 bb) The law does neither prescribe a clear allocation of off-duty possession of child pornography to the maximum disciplinary measure nor is such general allocation possible for all groups of civil servants. It is true that the demand for such image and video files contributes to the aggravated sexual abuse of children and thus to the violation of their physical integrity and human dignity (see BVerwG, judgment of 25 March 2010 - 2 C 83.08 - BVerwGE 136, 173 para. 19). Since, however, the mere possession of such depictions does not constitute a direct interference by the civil servant on the sexual self-determination of the children concerned, the range of possible misconduct is too wide to allow for the conclusion that such off-duty breach of duty is sufficiently serious to justify the imposition of the maximum disciplinary measure in general and for all groups of civil servants.

28 The extent to which trust is lost due to the off-duty criminal offence committed, must therefore be determined in the specific individual case. To this end, one has to resort to the sentencing range applicable at the time the offence was committed, as the legislature expressed its assessment of the disvalue of a conduct in a binding manner by specifying the threat of punishment such conduct incurs. Resorting to the sentencing range to determine the extent of trust lost, ensures a comprehensible and uniform disciplinary punishment of criminal offences committed off-duty. Linking to the threat of punishment (as in force at the time the offence was committed) also prevents the disciplinary courts from replacing the legislature's assessment of the disvalue of an offence with their own assessment in each individual case (BVerwG, judgments of 19 August 2010 - 2 C 5.10 - (...) para. 22 and - 2 C 13.10 - (...) para. 25). It is not the notion of the respective disciplinary court but Parliament's assessment that determines which criminal offences are to be regarded as particularly reprehensible.

29 For the disciplinary punishment of off-duty possession of child pornography, the Senate concluded from the sentencing range of up to two years imprisonment, provided for under section 184b (4) StGB in the version of the Act of 27 December 2003 (BGBl. I p. 3007), in force from 2004 to 2015, that, in principle, the orientation framework available for the determination of the disciplinary measure extends up to demotion. The increase of the threat of punishment for the (mere) possession of child pornography to a sentence of up to three years' imprisonment under section 184b (3) StGB in the version of the Act of 21 January 2015 (BGBl. I p. 10), which entered into force on 22 January 2015, extending the orientation framework up to the maximum measure, did not enter into force until after the commission of the offence in question and can therefore not be taken into account.

30 cc) However, where a disciplinary offence is sufficiently related to the civil servant's office conferred according to the status - as in the case of teachers here - the orientation framework for disciplinary measures available extends to removal of civil servant status even for moderately serious criminal offences, which incur a threat of punishment of a sentence of up to two years' imprisonment (BVerwG, judgment of 19 August 2010 - 2 C 5.10 - (...) para. 24; decisions of 25 May 2012 - 2 B 133.11 - (...) para. 9 et seqq. and of 23 January 2014 - 2 B 52.13 - (...) para. 8).

31 c) Where civil servant teachers are concerned, off-duty possession of child pornography within the meaning of section 184b StGB - even in small quantity or of low-threshold content - does, as a general rule, entail disciplinary removal of civil servant status due to the loss of trust on the part of the employer and the general public associated therewith in accordance with section 13 (1) second to fourth sentence DiszG BE. With regard to the principle of individual guilt and the principle of proportionality, this only fails to apply where exceptional circumstances of the individual case exceptionally refute to conclude a complete loss of trust in the person of the civil servant.

32 Under the comprehensive educational mission of the school, based on article 7 (1) of the Basic Law (GG, Grundgesetz), a teacher is not only under an obligation to impart knowledge but also - in addition to the parents and independently of them - to educate the children (see BVerfG, decisions of 21 December 1977 - 1 BvL 1/75 and 1 BvR 147/75 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 47, 46 <71 et seq.> and of 8 October 1997 - 1 BvR 9/97 - BVerfGE 96, 288 <304> as well as judgment of 12 June 2018 - 2 BvR 1738/12 et al. - BVerfGE 148, 296 para. 188 and BVerwG, judgment of 11 September 2013 - 6 C 12.12 - (...) para. 19). He or she must in particular promote and protect the development of the children entrusted to him or her. In addition, the teacher, in his or her function as a role model, must credibly convey the value system as protected under the constitution. In view of the position of responsibility and trust associated with this office, off-duty possession of child pornography material in this group of civil servants does therefore not only establish an indirect relation to the office held and hence establishes the disciplinable nature of such misconduct. On the contrary, where a teacher is concerned, breaches of the above-mentioned requirements do to a particular degree affect the office he or she holds and the performance of his or her duties. This already applies where there is reason to fear that the teacher, by reason of such breaches, meets with reservations on the part of the children's parents and therefore no longer enjoys the authority and trust of the general public on which he or she is necessarily dependent for the performance of his or her official tasks. In this respect, mere suitability for such loss of trust is sufficient, without the need for precisely such a loss of trust to have occured (BVerwG, judgment of 19 August 2010 - 2 C 5.10 - (...) para. 15, decisions of 21 December 2010 - 2 B 29.10 - (...) para. 6, of 4 April 2019 - 2 B 32.18 - (...) para. 18 and of 17 June 2019 - 2 B 82.18 - (...) para. 16). There is in particular no need for a teacher to necessarily show a reproachable conduct in directly dealing with precisely the pupils of his or her school (as held in the appeal judgment (...)).

33 Also off-duty possession of material involving the sexual abuse of children, committed while not on duty, is incompatible with the educational mission of the school and, as a general rule, makes it appear impossible for the civil servant to fulfil. In this respect, a particularly strict standard applies to the group of civil servant teachers - precisely because of their position of responsibility and trust related to the office conferred according to the status they hold.

34 In contrast, the penalty pronounced in the specific case by way of sentencing is only relevant under criminal law. It does not have any further-reaching indicative effect limiting the determination of disciplinary measures. This is due to the different purposes of criminal and disciplinary law. While specific sentencing follows criminal law criteria, disciplinary measures under section 13 BDG or the corresponding federal state laws - in this case section 13 DiszG BE - are in particular determined based on the loss of trust on the part of the employer and the general public.

35 aa) The Senate does no longer adhere to the statements made in the judgment of the Federal Administrative Court of 18 June 2015 - 2 C 9.14 - BVerwGE 152, 228 para. 38 and in the decision of 28 February 2017 - 2 B 85.16 - (...) para. 11, according to which a fine was a kind of lesser penalty. The imposition of a specific penalty by way of a fine for the commission of a criminal offence, pronounced by a criminal court, is not indicative allowing to conclude on the minor seriousness of the disciplinary offence. The fine is also a primary penalty of weight. The contrary conclusion reached in the appeal judgment (...), according to which a conviction to a fine in the lower range, could only entail the imposition of the maximum disciplinary measure in exceptional cases and if significant circumstances under disciplinary law existed, is incompatible with section 13 DiszG BE and the corresponding disciplinary provisions in federal and federal state law.

36 Under the German Criminal Code, the fine is conceived of as primary penalty equivalent to imprisonment. Under the heading of its Third Chapter (Legal Consequences), the German Criminal Code mentions two primary penalties, imprisonment (sections 38 and 39 StGB) and fine (sections 40, 41 and 42 StGB). Pursuant to section 43 first sentence StGB, an irrecoverable fine shall be substituted by imprisonment.

37 A fine is a penalty that can only be imposed by a criminal judgment or by way of penal order in criminal proceedings following the establishment of the offender's individual guilt (section 46 (1) StGB). As a guilt-appropriate penalty of weight, it must be distinguished from civil and administrative fines, coercive fines, penalty payments or other means to maintain public order. It must also be distinguished from the mere imposition of money payments upon discontinuance of criminal proceedings.

38 With regard to disciplinary law, reference is to be made to the provisions under section 41 BBG and section 24 BeamtStG. In accordance with these provisions, a conviction by a criminal court to a sentence of at least one year's imprisonment for an intentional act (subsection 1 first sentence no. 1) or for an intentional act concerning offences against state security or bribery offences to a sentence of at least six months' imprisonment (subsection 1 first sentence no. 2) automatically, by virtue of law, entails the loss of civil servant rights by termination of the civil servant status. Accordingly, there is no room for bringing disciplinary actions for removal of civil servant status based on criminal offences committed by the civil servant except where the civil servant was sentenced by final and binding judgment to less than one year's and to less than six months' imprisonment respectively or to a fine for committing such criminal offence. This shows that in the field of criminal offences committed by civil servants, relevant in individual cases under disciplinary law, typically involves sentences of less than one year's imprisonment or fines.

39 This point of view also corresponds to the more recent jurisprudence of the Senate in proceedings, according to which the specific sentencing of fines is regularly irrelevant for the determination of disciplinary measures, especially in cases of off-duty possession of child and adolescent pornography (see e.g. BVerwG, decisions of 16 March 2017 - 2 B 42.16 - (...) <fine of 90 daily units>, of 17 June 2019 - 2 B 82.18 - (...) para. 1 <fine of 60 daily units> and of 15 July 2019 - 2 B 8.19 - (...) para. 2 <fine of 50 daily units>).

40 bb) Accordingly, as a general rule, a teacher who possesses child pornography destroys the basis for the trust required for his or her office conferred according to the status. In the eyes of the general public - of which parents are also a part - he or she is in principle no longer acceptable as a civil servant. This applies regardless of quantity, type and content of such child pornography. Because any possession of child pornography is incompatible with the educational mission and the educational task of a teacher.

41 In the case of the defendant, there are no exceptional circumstances of the individual case apparent which would prevent to conclude complete loss of trust in his person.

42 3. The defendant is therefore to be removed from civil servant status. In accordance with the seriousness of the disciplinary offence (section 13 (1) second sentence DiszG BE) and the personality profile of the defendant (section 13 (1) third sentence DiszG BE), only removal of the civil servant status (section 10 DiszG BE) can be determined as appropriate disciplinary measure. As shown above, as a rule, the basic principles of civil servant status do not allow to entrust civil servant teachers possessing child pornography with the education and upbringing of the children and adolescents entrusted to them. In the present case, there is nothing to indicate the existence of an exceptional case.

43 The Federal Administrative Court is authorised to take the present disciplinary decision itself. It may, even in appeal proceedings on points of law, take an independent decision on the determination of the disciplinary measure based on the factual findings in the appeal judgment and the content of the file (section 41 DiszG BE in conjunction with section 60 (2) second sentence, 65 (1) first sentence and 70 (1) BDG, section 137 (2) and (3) second sentence and 144 (3) first sentence no. 1 VwGO). As the appeal on points of law was filed by the claimant federal state, the prohibition of deteriorating the defendant's position (see section 141 first sentence in conjunction with section 129 VwGO) does not apply. Both was pointed out in advance.