A civil servant who has been unlawfully retired retains their entitlement to minimum annual leave if they are not otherwise in employment during that period. This is clear from a ruling by the Higher Administrative Court (OVG) in Bautzen (Case No. 2 A 378/25 of 24 June 2026). Like the lower court, the Dresden Administrative Court, the court referred to the case law of the European Court of Justice on unlawful dismissals (C-762/18, C-37-19 of 25 June 2020) and has now applied this to civil servants.

In the present case, the civil servant had been retired on health grounds but had returned to service after four years. The Dresden Administrative Court had quashed his retirement by way of a judgement. The civil servant subsequently demanded that all his annual leave days be credited to him for the period of his retirement.

The Higher Administrative Court ruled in his favour: the retirement of a civil servant is comparable to the termination of an employment contract. The unlawful retirement falls within the remit of the employer. The Higher Administrative Court also considered it irrelevant that the civil servant received his salary and had time off without having to perform any work in return. In the court’s view, this was not comparable to annual leave.