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.

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.

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.

Judgment of 11 April 2019 - BVerwG 3 C 14.17 (uploaded on 24 April 2020)

Withdrawal of the driving licence following a violation of the separation requirement by an occasional user of cannabis

Headnotes

1. In the case of an occasional user of cannabis who, for the first time, drove a motor vehicle under the influence of cannabis which may impair his driving safety, the driver licensing authority may as a rule not assume, without further clarification, that he is unfit to drive and immediately withdraw his driving licence. In such cases, the driver licensing authority is obliged to decide at its discretion in accordance with legal obligation whether to obtain a medical-psychological expert report pursuant to section 46 (3) in conjunction with section 14 (1) third sentence FeV.

2. An occasional user of cannabis does not separate the use of cannabis and driving a motor vehicle in accordance with no. 9.2.2 of Annex 4 to the Driver Licensing Ordinance if there is a possibility that the use of cannabis may impair his driving safety. Such a possibility can still be assumed, even taking into account the recommendation by the Limit Value Commission (Grenzwertkommission) of September 2015, if a concentration of tetrahydrocannabinol (THC) of 1ng/ml or more is found in the blood serum of the person concerned.

Judgment of 3 April 2019 - BVerwG 8 C 4.18 (uploaded on 15 July 2020)

No standing to bring a representative action in cases of consumer advice - also - in the economic interest of third parties

Headnotes

1. Consumer information and advice is not commercial within the meaning of section 4 (2) first sentence UKlaG if it is provided exclusively in consumers' interests and does not serve economic interests of the association performing the task or of third parties.

2. An association whose consumer information and advice aims to gain clients for a particular law firm interlocked by mutual interests with that association carries out this activity with a third-party economic interest and thus commercially within the meaning of section 4 (2) first sentence UKlaG.

Judgment of 29 March 2019 - BVerwG 9 C 4.18 (uploaded on 29 January 2020)

Obligation of an organiser to pay fees for special police efforts made at a high-risk event

Headnotes

1. Fulfilling the tax liability, as determined by the ability to pay principle, does not entitle to free use of state benefits, the provision of which is subject to specific attribution. Anyone making particular use of a public good (in this case state security precautions) for the purpose of making a profit, may in principle be charged a fee for this.

2. A provision of federal state law (here section 4 (4) BremGebBeitrG) which, in order to cover the additional expenses, imposes a fee on the organiser of a major profit-oriented event foreseeably requiring the deployment of additional police forces in territorial and timely connection with such event as a result of experience predicting acts of violence, is in principle consistent with the tax state principle (Steuerstaatsprinzip; article 104a et seqq. GG).

3. Such a fee, which is not claimed from the organiser as the person causing a disturbance of public security but exclusively as the beneficiary of an increased police presence, does not conflict with police law. However, in order to avoid an impermissible excess cover, one must avoid "double billing" to both the organiser and to the person causing the disturbance.

4. The organiser's fee is in compliance with article 12 (1) GG if, taking into account the nature of the event, such fee is regularly in a reasonable relation to the economic result that the organiser can achieve, also thanks to the increased use of police forces.

5. There is no need for a tax-financed deduction from chargeable expenses, even when taking into account the public interest in preventing threats, if the additional security effort is required exclusively as a result of a profit-oriented private event.

6. With respect to the requirement of specificity of the provision, a fee with the direct purpose of covering expenses does not necessarily require the fee rate to be determined in the constituent elements of the provision. Sufficient specificity may also be achieved by stipulating rules for the assessment of such expenses.

Judgment of 28 March 2019 - BVerwG 1 C 9.18 (uploaded on 28 January 2020)

Right of residence of a Union citizen's spouse despite termination of marital cohabitation

Headnotes

1. The derived right of residence of the third-country national spouse of a Union citizen entitled to freedom of movement pursuant to section 2 (1) FreizügG/EU in conjunction with article 3 (1) of Directive 2004/38/EC does not depend on the continued existence of marital cohabitation. To meet the requirement that the third-country national must accompany the Union citizen within the meaning of section 3 (1) FreizügG/EU in conjunction with article 3 (1) of Directive 2004/38/EC, it is sufficient following termination of marital cohabitation that both spouses are simultaneously resident in the host Member State (CJEU, judgment of 16 July 2015 - C-218/14, Singh - para. 54).

2. If a Union citizen leaves the federal territory following termination of marital cohabitation, the derived right of residence of the third-country national spouse under EU law expires (CJEU, judgment of 16 July 2015 - C-218/14, Singh - para. 58).

3. If the Union citizen later returns to the federal territory, the third-country national spouse remaining here can again claim a derived right of residence under EU law, even if the spouses continue to live apart.

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