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Office stability is a principle of the German official right.
It does not concern in particular the problem of the competitor complaints against preferred applicants, e.g. in the controversy over a transport or Einstellung.Danach is the appointment of an official once taken place any longer by pleas of a competitive applicant to be cancelled to be able. Once effected appointments are thereafter legally, if one of the reasons enumerated exhaustively in the official right is present, under which the nullity of the official relationship be determined or the appointment taken back can (see "§"§ 11, 12 federal official law; and/or the appropriate standards of the official right framework law as well as the national official laws).
The form severity of the limited cancelling possibilities of the appointment is seen thereby as a brought principle of the civil service with tenure protected of kind 33 exp. 5 Basic Law. Other reasons for the are the principle of right security, the confidence of the public on the official characteristic as well as the confidence worthy of protection of the appointed official. Its interest of personality would come into an unsolvable conflict with the interest of legal protection of the rejected applicant, if the danger of a Kassation of the appointment existed
In the administrativejudicial iurisdiction the legal protection of the been subject applicant is seen in principle only in the procedure of the provisional legal protection in accordance with "§ 123 exp. 1 VwGO. According to which before the appointment a provisional arrangement can be issued against the appointment.
The principle of office stability can lead therefore to the fact that even then, if the appointment of the preferred applicant were illegal e.g. because it was appointed only due to its good (political) relations the authority point (so-called it no more in the way of a competitor complaint of the been subject applicant be waived can.
Critical voices affirm however the possibility of a contestation complaint against the appointment and reject the principle of office stability. They mean to see a act of administration with Doppelwirkung, which load the competitor and is contestable therefore in the appointment of the other one. The not appointed applicant is alone already concerned due to the fact that the appointment without abolition possibility creates an insurmountable barrier. This is justified in particular with the fact that otherwise the legal protection warranty protected by kind 19 exp. 4 GG was hurt. The principle of office stability cuts thereafter the subjective right of the been subject applicant to legal selection on the basis the criteria kind 33 exp. 2 GG (kind 33 exp. 2 GG reads: Each German has same entrance to each public office after its suitability, capability and technical achievement.).
The problem is again in motion guessed/advised, as the Federal Administrative Court in more obiter dictum to a decision from 13 September 2001 (DVBl. 2002, P. 203) the past iurisdiction placed to office stability in question. This decision was regarded in the professional world as "bass drum impact" (Battis) and welcomed often. In a further current decision to the official-legal competitor complaint the Federal Administrative Court stated now that if the occupation of the place with the competitor against a provisional arrangement offence forbidding this occupation, which can further pursue obsiegende officials its requirement for application procedure in the main thing main on new granting of its application in the provisional legal protection. This does not presuppose however the possibility of waiving the appointment of the competitor already taken place on the contrary the service gentleman has new places to create (BVerwGE 118, 370). The Federal Administrative Court is the opinion that this is household-legally possible. This aspect is not discussed fully however yet.
Anyhow the Federal Administrative Court thereby did not give yet the often demanded refusal to office stability. It can be accused to the iurisdiction of the supreme court however quite by right that she "rolls" at present for this.
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