Kein Anspruch auf Schadensersatz bei fehlerhafter Nichtbeförderung

Auch bei fehlerhafter Nichteinbeziehung in ein Beförderungsverfahren sind die haushaltsrechtlichen Regelungen zur Durchführung und Umsetzung von besetzbaren Planstellen im Rahmen der Klage auf Schadensersatz zu berücksichtigen. Dies bedeutet, dass ein Beamter, der zwar durch eine fehlerhafte Nichteinbeziehung in ein Beförderungsverfahren ausgegrenzt wurde, trotzdem aber keine ernsthafte Chance auf Beförderung gehabt hätte, ebenso keinen Anspruch auf Schadensersatz hat, wenn ein leistungsschwächerer Beamter höhergruppiert wurde. Dies urteilte das Bundessverwaltungsgericht.

Polizeibeamtin fehlte die Verweildauer

Hintergrund für das Urteil ist eine Polizeibeamtin, die in Hamburg im aktiven Dienst tätig ist. Im Jahre 2008 stand ein Beförderungsverfahren an, an welches sie nicht beteiligt wurde, da sie noch nicht die geforderten sieben Jahre Verweildauer in der bisherigen Stufe eines Polizeikommissars abgeleistet hatte. An ihrer Stelle trat demnach ein Beamter, der zwar eine schlechtere Beurteilung seiner Leistung vorwies, jedoch bereits die besagten sieben Jahre Verweildauer abgeleistet hatte. Dieser wurde höhergruppiert, wobei die Klägerin in der gleichen Stufe blieb.

Beamtin legte Klage ein – Oberverwaltungsgericht wies diese zurück

Die Klägerin legte nach einer Verweildauer von 7 Jahren Klage auf Schadensersatz im Jahr 2009 ein. Das Oberverwaltungsgericht wies diese jedoch ab. Als Begründung teilte das Gericht mit, hätte die Beamtin keine ernsthaften Chancen auf Beförderung besessen, auch wenn sie in das damalige Beförderungsverfahren mit einbezogen gewesen wäre. Die Verweildauer in der besagten Stufe zum Polizeikommissar war noch nicht ausreichend, auch wenn die sieben Jahre wegen ihrer Leistung zu lang gewesen wären. Jedoch hätte die Beamtin trotz dessen keine Beförderungschance gehabt.

Polizeibeamtin legte Revision ein Bundesverwaltungsamt wies diese zurück

Die Polizeibeamtin legte Revision gegen das Urteil ein. Das Bundesverwaltungsgericht wies diese jedoch zurück. Als Begründung gab das Gericht an, hätte die Beamtin keine ernsthafte Chance auf Höhergruppierung gehabt. Zudem hat der Dienstherr folglich rechtens gehandelt, in dem er zwar auf einen anderen Beamten zurückgegriffen hatte und diesen trotz schlechterer Leistung befördert hatte, aber die Polizeibeamtin wegen der beschlossenen Limitierung im Rahmen des Haushaltsrechts nicht höhergruppiert hatte.

Besonderheit in der Beförderung für Beamte in Hamburg

In Hamburg existiert eine Besonderheit im Rahmen der Beförderung bei Beamten. Hier werden nicht wie üblich 397 Beamte höhergruppiert, sondern eine durch die haushaltsrechtlichen Regelungen ausfinanzierte Anzahl. Die Polizeibeamtin stand aufgrund ihrer dienstlichen Beurteilung im deutlichen Abstand auf einer Rangliste zu den haushaltsrechtlich auskalkulierten Planstellen und hatte somit auch keine Beförderungschance besessen.

Bundesverwaltungsgericht, Urteil vom 19.03.2015 – BVerwG 2 C 12.14 –

Siehe auch:
Leistungszulagen für Beamte

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