Former civil servants are entitled to compensation for lost pension entitlements if they have applied to be dismissed from their civil servant status in order to take up employment in another EU member state. This has now been decided by the Federal Administrative Court (Ref.: 2 C 3.21 of 04.05.2022). The judgement concerned a civil servant who had worked as a teacher in North Rhine-Westphalia for around 20 years and applied for his dismissal from his civil servant status in order to work as a teacher in Austria. As North Rhine-Westphalia does not yet provide for retirement benefits for dismissed civil servants, the plaintiff was subsequently insured in the statutory pension insurance scheme; however, the pension paid out after reaching retirement age fell considerably short of the pension he would have received if he had retired as a civil servant teacher. This disadvantage for civil servants exercising their right to freedom of movement was not justified by public interests. The court therefore ordered the employer to pay compensation on the basis of a claim for damages for breach of Union law.

According to the clarification by the Supreme Court, employing authorities must set aside corresponding compensation payments when civil servants are dismissed to work in another EU member state, in addition to the subsequent pension insurance payments. Rechtsanwalt Prof Dr Herrmann advises service authorities and, following the decision, believes that the ball is in the court of the state legislators: „In the event of dismissal, enormous payments and risks are imposed on the employing authorities. A predictable basis must be created here and it must finally be ensured with a retirement benefit regulation that the pension entitlements from the civil servant relationship can be taken along in the event of dismissal.“

Contact persons for questions relating to public service law in our practice are Rechtsanwalt Prof Dr Klaus Herrmann, the lawyers Kristina Gottschalk and Sophia von Hodenberg and Rechtsanwalt Dr Stephan Berndt.