The In its judgment of October 10, 2024, the Federal Administrative Court issued a ruling on file number 2 C 15.23 decided that minimum requirements with regard to the duty of loyalty to the constitution must also be met by the applicant for a legal preparatory service that is not a civil servant and that the request of someone who actively supports the party “Der III. The plaintiff’s claim was rejected.
The BVerwG press release No. 48/2024 dated October 10, 2024 states:
After completing his law studies, the plaintiff applied to the Bamberg Higher Regional Court to be accepted into the legal preparatory service on April 1, 2020, which is carried out in Bavaria under public law training. The President of the Higher Regional Court rejected the application in particular because the plaintiff held prominent positions for the party “Der III. Weg” and his anti-constitutional sentiments were also made clear in the speeches he gave. As a result, he has proven to be currently unsuitable for entry into the preparatory service. The plaintiff’s application for interim legal protection and a subsequent constitutional complaint filed with the Federal Constitutional Court were unsuccessful. After the plaintiff was admitted to preparatory service in another federal state, he continued to pursue his request by filing a declaratory judgment action. He was unsuccessful in the lower courts. The plaintiff now works as a lawyer.
The Federal Administrative Court rejected the plaintiff’s appeal. For trainees who do not complete the legal preparatory service as a civil servant, the strict civil service law requirements regarding the duty of loyalty to the constitution do not apply. Regardless of the fact that they do not aspire to permanent employment for the state and that the preparatory service represents a necessary stage in obtaining the qualification as a “full lawyer”, these trainees also take part in the state function of administering justice. They must therefore meet minimum requirements for the duty of loyalty to the constitution and, in particular, must not actively act against the basic values of the constitution. Those involved in a legal dispute have the right not to have anyone participate in the processing of their affairs if there are reasonable indications that they are pursuing or actively supporting anti-constitutional goals. The requirements for the admission of a legal trainee participating in the state administration of justice may therefore be different than those for the admission of a lawyer.
Reasonable doubts about the plaintiff’s required minimum duty of loyalty arise from his active membership in the party “Der III. Away”. This results from the political goals of this party, which is assessed as extremist by the responsible constitutional protection authorities, and the internal party structure, which is based on the “leader principle”. The party program is based in particular on the idea of the unequal value of people and the resulting legal unequal treatment, which violates fundamental values of the constitution. The fact that the party has not been banned by the Federal Constitutional Court does not contradict this assessment. The party privilege under Article 21 Paragraphs 2 and 4 of the Basic Law only blocks the legal consequences that would result from (successful) party ban proceedings. However, the guarantee content of the constitutional provisions does not cover indirect impairments. It does not follow from party privilege that every party member must be treated as loyal to the constitution until the party is banned.
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