Wichtiger Hinweis

    Gemäß der geltenden Sächsischen Corona-Schutz-Verordnung dürfen Personengruppen, die das Gebäude betreten möchten und Angehörige verschiedener Hausstände umfassen, maximal aus 11 Personen bestehen (§ 2 Abs. 2 Nr. 2 SächsCoronaSchVO).

Search in ‘Judgments and decisions’


Judgment of 24 October 2019 - BVerwG 2 C 3.18 (uploaded on 17 September 2020)

Disciplinary punishment of off-duty possession of child pornographic material in the form of image files by teachers

Headnotes

1. As a general rule, off-duty possession of child pornography - even in small quantity or of low-threshold content - by a teacher employed as a civil servant entails disciplinary removal of civil servant status by virtue of the loss of trust on the part of the employer and the general public associated with such possession.

2. Due to the different purposes of criminal law and disciplinary law, the specific penalty pronounced by way of sentencing does not have indicative effect limiting the determination of disciplinary measures.

Judgment of 17 July 2019 - BVerwG 5 C 8.18 (uploaded on 21 July 2020)

Compatibility of the minimum period of education or training in accordance with section 5 (2) third sentence BAföG (now section 5 (2) second sentence BAföG) with the right of free movement and residence under EU law

Headnote

The minimum period of residence relating to attendance at a particular education or training establishment referred to in section 5 (2) third sentence first half-sentence BAföG is not compatible with the right of free movement and residence under EU law and does not apply to attendance at education or training establishments in EU Member States.

Decision of 4 July 2019 - BVerwG 7 C 31.17 (uploaded on 30 January 2020)

Request to the CJEU for a preliminary ruling regarding the insolvency administrator's access to information about tax data of revenue authorities

Headnotes

Request to the CJEU for a preliminary ruling regarding the insolvency administrator's access to information about tax data of revenue authorities.

The Court of Justice of the European Union is requested to clarify the following questions concerning the interpretation of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation, OJ L 119 of 4 May 2016, p. 1) by way of a preliminary ruling in accordance with article 267 TFEU:

1. Does article 23 (1) (j) of Regulation (EU) 2016/679 also serve to protect the interests of revenue authorities?

2. If so, does the wording "the enforcement of civil law claims" also cover the defence of the revenue authority against civil law claims and must such claims already have been submitted?

3. Does the provision of article 23 (1) (e) of Regulation (EU) 2016/679 relating to the protection of an important financial interest of a Member State in taxation matters allow a restriction of the right of access under article 15 of Regulation (EU) 2016/679 in relation to the defence of civil law insolvency avoidance claims against the revenue authority?

Judgment of 4 July 2019 - BVerwG 1 C 31.18 (uploaded on 11 February 2020)

Risk upon return for a Syrian national who evaded reserve service by emigrating

Headnotes

1. In order for a well-founded fear of persecution as defined in section 3 (1) no. 1 AsylG to exist, a risk assessment based on the standard at the level of considerable probability of persecution is required; in this regard, the court responsible for finding the facts must also arrive at the conviction required under section 108 (1) VwGO even if the status of information is unclear.

2. A person seeking protection without having previously suffered persecution bears the burden of proof (or persuasion) for the considerable probability of the persecution with which the person is threatened upon return.

3. In the case of an act of persecution under section 3a (2) no. 5 AsylG, a connection with a reason for persecution is also required.

Judgment of 15 May 2019 - BVerwG 7 C 27.17 (uploaded on 9 September 2020)

Integration of new projects into the assessment of the implications for the site under the Habitats Directive (cumulative assessment)

Headnotes

1. Other plans and projects are to be integrated into the assessment of the implications for the site (cumulative assessment) under section 34 (1) first sentence BNatSchG, if their impact, and therefore the extent of the cumulative impact, can be predicted reliably. As a matter of principle, this is not already the case upon submission of verifiable documents or public display of the documents, but only when the necessary approval decisions have been issued (confirmation of the established jurisprudence of the BVerwG, e.g., judgments of 21 May 2008 - 9 A 68.07 - (...) and of 9 February 2017 - 7 A 2.15 - BVerwGE 158, 1 para. 219).

2. The project-related cut-off value (Abschneidewert) for eutrophying nitrogen inputs of 0.3 kg N/(ha·a) does not require correction, also in view of the cumulative effects of several projects.

3. As a rule, it is not necessary to relate the cumulative assessment back to the date on which the Habitats Directive sites were granted protection in December 2004.

Decision of 14 May 2019 - BVerwG 1 C 5.18 (uploaded on 7 May 2020)

Decision to request a preliminary ruling concerning interpretation of article 12 (1) (a) of Directive 2011/95/EU

Headnotes

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. When assessing the question of whether, within the meaning of article 12 (1) (a) second sentence of Directive 2011/95/EU, a stateless Palestinian is no longer granted protection or assistance of the UNRWA, is account to be taken from a geographical perspective solely of the respective field of operation (Gaza Strip, Jordan, Lebanon, Syria, West Bank) in which the stateless person had his or her actual residence upon leaving the area of operations of the UNRWA (in this case: Syria), or also of further fields of operation belonging to the area of operations of the UNRWA?

2. If account is not solely to be taken of the field of operation upon leaving: Is account always to be taken, regardless of further conditions, of all the fields of operation of the area of operations? If not: Are further fields of operation only to be taken into consideration if the stateless person had a substantial (territorial) connection to that field of operation? Is a habitual residence - at the time of or prior to leaving - required for such a connection? Are further circumstances to be taken into consideration when examining a substantial (territorial) connection? If so: Which ones? Does it matter whether it is possible and reasonable for the stateless person to enter the relevant field of operation when leaving the UNRWA area of operations?

3. Is a stateless person who leaves the area of operations of the UNRWA because his or her personal safety is at serious risk in the field of operation of his or her actual residence, and it is impossible for the UNRWA to grant him or her protection or assistance there, entitled, within the meaning of article 12 (1) (a) second sentence of Directive 2011/95/EU, ipso facto to the benefits of the Directive even if he or she previously went to that field of operation without his or her personal safety having been at serious risk in the field of operation of his or her former residence and without being able to expect, according to the circumstances at the time of the move, to experience protection or assistance by the UNRWA in the field of operation into which he or she moves and to return to the field of operation of his or her previous residence in the foreseeable future?

4. When assessing the question of whether a stateless person is not to be granted ipso facto refugee status because the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU ceased to apply once he or she left the area of operations of the UNRWA, is account to be taken solely of the field of operation of the last habitual residence? If not: Is consideration also, by analogy, to be given to the areas of which account is to be taken under no. 2 for the time of leaving? If not: Which criteria are to be used to determine the areas which are to be taken into consideration at the time of the decision on the application? Does the cessation of application of the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU require the (state or quasi-state) bodies in the relevant field of operation to be prepared to (re)admit the stateless person?

5. In the event that, in connection with the satisfaction or cessation of application of the conditions of article 12 (1) (a) second sentence of Directive 2011/95/EU, the field of operation of the (last) habitual residence is of significance: Which criteria are decisive for establishing habitual residence? Is lawful residence authorised by the country of residence required? If not: Is there at least a need for the conscious acceptance of the residence of the stateless person concerned by the responsible bodies of the field of operation? If so in this respect: Does the presence of the individual stateless person have to be specifically known to the responsible bodies or is the conscious acceptance of residence as a member of a larger group of people sufficient? If not: Is actual residence for a relatively long period of time sufficient in itself?

Decision of 9 May 2019 - BVerwG 1 C 14.19 (uploaded on 8 May 2020)

Decision to suspend proceedings and request for a preliminary ruling on legal questions concerning the scope of Directive 2008/115/EC

Headnotes

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. a) Does an entry ban issued against a third-country national for purposes "not related to migration" come within the scope of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ L 348 p. 98), at any rate if the Member State has not made use of the option under article 2 (2) (b) of that Directive?

b) If question 1. a) is answered in the negative: Does such an entry ban not come under Directive 2008/115/EC if the third-country national is already staying illegally regardless of an expulsion order issued against him, to which the entry ban is linked, and therefore in principle comes within the scope of the Directive?

c) Do entry bans issued for purposes "not related to migration" include entry bans issued in connection with an expulsion ordered for reasons of public security and order (in this case: solely on general preventive grounds with the objective of combating terrorism)?

2. If question 1 is answered to the effect that the present entry ban does come within the scope of Directive 2008/115/EC:

a) Does the administrative annulment of the return decision (in this case: the deportation warning) have the result that an entry ban, within the meaning of article 3 no.6 of Directive 2008/115/EC, ordered at the same time becomes unlawful?

b) Does this legal consequence arise even if the administrative expulsion order preceding the return decision is (or has become) legally binding?

Judgment of 9 May 2019 - BVerwG 2 C 1.18 (uploaded on 17 September 2020)

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.

Review of grounds of inadmissibility in asylum law also has priority in actions for enhancement of subsidiary protection status

Headnotes

1. If there are indications to believe that an application for asylum is inadmissible pursuant to section 29 (1) no. 2 to 5 AsylG, an administrative court may grant an action for a grant of international protection only if the requirements of the ground of inadmissibility in question are absent. This applies even if the Federal Office for Migration and Refugees has decided on the merits of the application.

2. The ground of inadmissibility provided in section 29 (1) no. 4 and section 27 AsylG (safety elsewhere in another third country) implements the concept of the "first country of asylum" under EU law within the meaning of Directive 2013/32/EU. It provides that an application for asylum is inadmissible if the country under consideration is not an EU Member State and differs from the country of origin of the person concerned (for stateless persons: the country of habitual residence), and if that country is willing to readmit the person concerned and confers safety on that person in conformity with the requirements of section 27 AsylG in conjunction with article 35 of Directive 2013/32/EU.

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