Search in ‘Judgments and decisions’


Decision of 10 July 2018 - BVerwG 2 WDB 2.18 (uploaded on 11 July 2019)

Headnote

The immunity of a Member of the European Parliament establishes a procedural impediment to conducting a disciplinary proceeding in the military disciplinary and complaints courts. This also applies to proceedings initiated prior to the acquisition of membership ("legacy" proceedings).

Judgment of 19 April 2018 - BVerwG 2 C 59.16 (uploaded on 10 September 2019)

Headnote

section 57 (1) BDG also covers final and binding criminal judgments of foreign courts. The binding effect contemplated by section 57 (1) second sentence BDG also ceases to apply in these cases if the findings made by the (foreign) criminal court are manifestly incorrect. This can be the case if the minimum standards required by the rule of law were not adhered to in the criminal proceedings. Such an interpretation is compatible with constitutional law, EU law, and the European Convention on Human Rights.

Judgment of 19 April 2018 - BVerwG 2 C 40.17 (uploaded on 15 July 2019)

Fire fighter's claim for compensation for excessive work in breach of EU law

Headnotes

1. Regular working time cannot concurrently be overtime; this is the case even if regular working time is unlawfully set too high.

2. A detriment within the meaning of article 22 (1) of the Working Time Directive (Directive 2003/88/EC) exists if an employer responds with a reprisal measure to an employee's refusal to work more than 48 hours per week, or if the factual and legal consequences of this refusal prove to be negative when viewed objectively in an overall assessment. Adverse circumstances for which the employer compensates otherwise - for example, with monetary compensation or compensatory time off - must be left out of consideration in this regard.

3. The duty to assert claims against the employer, which do not arise directly by operation of law (principle of prompt assertion), in writing, is met by the civil servant in any text form, including, for example, via email. The requirement of form under section 126 (1) BGB does not apply.

Decision of 12 April 2018 - BVerwG 3 C 20.16 (uploaded on 26 August 2019)

Whether airport users have standing to challenge an approval of the charging scheme

Headnotes

A preliminary ruling is to be obtained from the Court of Justice of the European Union to clarify preliminary questions of EU law in connection with the issue whether airport users have standing (section 42 (2) VwGO) to bring an action for the annulment of an approval of a scheme of airport charges.

The following questions on the interpretation of Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (OJ L 70 p. 11) are referred to the Court of Justice of the European Union for a preliminary ruling:

1. Is a national provision which provides that the system of airport charges decided upon by the airport managing body must be submitted to the independent supervisory authority for approval, without prohibiting the airport managing body and the airport user from setting charges different from those approved by the supervisory authority, compatible with Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (OJ L 70 p. 11), in particular article 3, article 6 (3) to (5) and article 11 (1) and (7) thereof?

2. Is an interpretation of national law whereby an airport user is prevented from challenging the approval of the charging scheme by the independent supervisory authority, but can bring an action against the airport managing body and can plead in that action that the charges determined in the charging scheme are inequitable, compatible with the aforementioned Directive?

Deportation order against a person posing a threat of Islamic terrorism

Headnotes

1. A deportation order does not expire following its enforcement (see BVerwG, judgment of 14 December 2016 - 1 C 11.15).

2. Judicial assessment of a deportation order that has been enforced must be based on the factual and legal situation prevailing at the time of the deportation.

3. A deportation order pursuant to section 58a AufenthG requires a threat situation determined on the basis of facts in which the risk of an act endangering security or a terrorist act resulting from the foreign national can evolve at any time and become a specific threat (see BVerwG, decisions of 21 March 2017 - 1 VR 1.17 and 1 VR 2.17).

4. The lawfulness of a deportation order made pursuant to section 58a AufenthG does not depend on the lawfulness of a ban on entry and residence issued at the same time.

5. A deportation ban under section 60 (1) to (8) AufenthG related to the state to which the individual is to be deported results in the (partial) unlawfulness of a deportation order made pursuant to section 58a AufenthG.

Judgment of 1 June 2017 - BVerwG 9 C 2.16 (uploaded on 7 March 2018)

Formally unlawful bicycle track construction in a special conservation area under the Habitats Directive

Headnotes

1. The right of an association to bring legal proceedings in the interest of the general public (section 2 (1) in connection with section 1 (1) of the Environmental Appeals Act (UmwRG, Umwelt-Rechtsbehelfsgesetz)) includes the right to institute an action for administrative intervention against a project built and operated without a decision on the required permission.

2. As a general rule, the discretion of the nature conservation authority to prevent the use of a bicycle track built without the required planning approval procedure (Planfeststellungsverfahren) pursuant to section 3 (2) of the Federal Nature Conservation Act (BNatSchG, Bundesnaturschutzgesetz), turns into a legal obligation where such use reasonably gives rise to concrete fears over considerable adverse effects in excess of the construction-related disturbance until completion of the subsequent planning approval procedure.

Decision of 1 June 2017 - BVerwG 1 C 23.16 (uploaded on 26 August 2019)

Request to the Court of Justice of the European Union for a preliminary ruling in order to clarify questions related to the obligation of bus undertakings to perform checks at Schengen internal borders

Headnotes

Request to the Court of Justice of the European Union for a preliminary ruling in order to clarify questions under EU law regarding the obligation of bus undertakings to check their passengers' travel documents when crossing a Schengen internal border.

A preliminary ruling of the Court of Justice of the European Union is obtained on the following questions in accordance with article 267 TFEU:

1. Do article 67 (2) TFEU and articles 22 and 23 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) preclude a provision of national law of a Member State which has the effect of requiring bus undertakings operating regular services across a Schengen internal border to check their passengers' travel documents before crossing an internal border in order to prevent foreign nationals not in possession of a passport or residence permit from being brought into the territory of the Federal Republic of Germany?

In particular:

a) Does the general statutory duty, or the administrative obligation directed at individual carriers, not to bring into federal territory foreign nationals not in possession of a passport or residence permit as required, which is properly discharged only if carriers check all passengers' travel documents before crossing an internal border, constitute, or fall to be treated as, a check on persons at internal borders within the meaning of article 22 of the Schengen Borders Code?

b) Is the imposition of the duties referred to in point 1 to be assessed by reference to article 23 (a) of the Schengen Borders Code, even though carriers do not exercise "police powers" within the meaning of that provision and, moreover, do not formally enjoy any powers of public authority by virtue of the State-imposed obligation to carry out checks?

c) If the answer to question 1 b) is in the affirmative: Do the checks which carriers are required to carry out, taking into account the criteria laid down in the second sentence of article 23 (a) of the Schengen Borders Code, constitute an impermissible measure having an effect equivalent to border checks?

d) Is the imposition of the duties referred to in point 1, in so far as it concerns bus undertakings operating regular services, to be assessed by reference to article 23 (b) of the Schengen Borders Code, which provides that the absence of border control at internal borders is not to affect the power of carriers to carry out security checks on persons at ports and airports? Does it follow from this that checks within the meaning of question 1 are impermissible even when carried out other than at ports and airports if they do not constitute security checks and are not also carried out on persons travelling within a Member State?

2. Do articles 22 and 23 of the Schengen Borders Code permit provisions of national law under which, for the purposes of ensuring compliance with that duty, an order imposing a prohibition on pain of a penalty payment may be made against a bus undertaking in cases where the failure to carry out checks has enabled even foreign nationals not in possession of a passport or residence permit to be brought into the territory of the Federal Republic of Germany?

Judgment of 14 December 2016 - BVerwG 6 A 9.14 (uploaded on 7 February 2018)

Headnote

A legal relationship establishable within the meaning of section 43 (1) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) does not exist, even taking into account the guarantee of the legal protection of rights of article 19 (4) first sentence of the Basic Law (GG, Grundgesetz), when a possible encroachment on the basic right deriving from article 10 of the Basic Law in the context of the strategic surveillance of telecommunications has been removed immediately and without consequence and therefore can no longer be established (following the judgment of 28 May 2014 - 6 A 1.13 – Rulings of the Federal Administrative Court 149, 359).

No restriction of examination of asylum applications if proceedings in other countries are not final

Headnotes

1. A refusal to conduct a further asylum procedure on subsequent and secondary applications, which under current law is rendered as an inadmissibility decision under section 29 (1) no. 5 of the Asylum Act (AsylG, Asylgesetz), is to be contested by way of an action for annulment (further evolution from Federal Administrative Court judgment of 10 February 1998 - 9 C 28.97 - Rulings of the Federal Administrative Court 106, 171).

2. Under section 71a (1) of the Asylum Act, in order for a secondary application for asylum to be denied as inadmissible without examining its substance, in the absence of new arguments, an asylum procedure in a safe third country must already have reached an unsuccessful conclusion.

3. An asylum procedure that was in progress in another EU Member State, and that was discontinued without an examination of its substance because the applicant moved away, was not concluded unsuccessfully in this sense if, according to the rules of that country’s legal system, the procedure can be resumed in a way that ensures a full examination of the substance of the application.

Judgment of 15 July 2016 - BVerwG 9 C 3.16 (uploaded on 28 August 2019)

Headnotes

1. Projects authorised before the site on which they are to be implemented was included in the list of sites of Community importance are not subject to the requirements relating to the procedure for prior assessment (ex-ante-Prüfung) of its implications for the relevant site according to article 6 (3) of the Habitats Directive. This ensues from article 4 (5) of the Habitats Directive (following CJEU, judgment of 14 January 2016 - C-399/14 -).

2. Nevertheless, the implementation of such projects falls within the scope of article 6 (2) of the Habitats Directive (following CJEU, judgments of 14 January 2016 - C-399/14 and C-141/14 -).

3. Although Member States generally have discretion regarding the "appropriate steps" to be taken pursuant to article 6 (2) of the Habitats Directive, the general obligation of protection defined in article 6 (2) of the Habitats Directive entails an obligation to subsequently assess the implications of a project for the site under article 6 (3) of the Habitats Directive, where there is a probability or risk of deterioration of habitats or disturbance of species because the project has not been subject to a sufficient assessment of its implications for the site. This especially applies if the project is to be authorised by way of the derogation procedure provided for in article 6 (4) of the Habitats Directive.

4. Such a subsequent assessment of the implications for the site under the Habitats Directive must relate to the current date of the review.

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FAQFrequently asked questions

  • What judgments or decisions of the Federal Administrative Court can I find on the website?

    You can find rulings of the Federal Administrative Court from January 2002 onwards on this website. Excluded are

    • Decisions regarding values of the matter in dispute
    • Determinations of costs
    • Third-party summons
    • Settlement deals
    • Rulings that are classified or that have been rendered incomprehensible or distorted by the anonymisation required by law.

    Rulings of the Federal Administrative Court passed before the year 2002 will gradually be added to the website.

    You will also find abbreviated versions of several rulings in English.

  • When is the decision text for a judgment made available?

    It is usually published several weeks, in some cases also several months, after the delivery of a judgment.

    The background of this is as follows: In general, the Federal Administrative Court passes a judgment after a hearing and a deliberation. At that point in time, there is a ruling, the operative part of the judgment (so-called Tenor), but the text of the reasons for the ruling is not available yet. The written reasons will only be drawn up, a vote on them will be taken by the Senate, and they will be signed after the passing. Then the judgment will be delivered to all parties involved in the proceedings, anonymised and published.

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    ECLI is the abbreviation for the European Case Law Identifier. It serves to identify court rulings and enables cross-border search in a European judgment database. The ECLI allows for the linking of several sources and versions such as summaries, translations and comments for a judgment or decision. The ECLI often does not only lead you to just a single judgment, but to many other documents regarding this judgment.

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