In a recent decision, the Federal Administrative Court (BVerwG) clarified the options for penalising breaches of official duty. On the one hand, it outlined the duty of civil servants to report breaches committed by other employees and, on the other hand, referred employers to disciplinary proceedings for the punishment of official offences. The BVerwG has clearly rejected „qualified disapproval“ as a sanction (case reference: 2 A 8/25 of 23.04.2026) 

In the case in question, a head of unit at the Federal Intelligence Service (BND) had attended a private barbecue organised by one of his employees. At this party, the employee had said in connection with a possible foreign assignment that he was „looking forward to the black women“ and wanted to „have a good time“ there. The head of unit had not reported this conversation. It was not until he was questioned as a witness in disciplinary proceedings against this employee that he disclosed this perception for the first time. The BND took this as an opportunity to establish a breach of the head of unit's reporting obligations and to penalise this breach - without disciplinary proceedings - with a „qualified disapproval“ or „qualified warning“. 

In response to the complaint against the „qualified disapproval“, the Federal Administrative Court found that the employee's statements, which he had made in a private context, did not constitute an official offence. The BVerwG's press release does not specify whether the statements would have been assessed differently if they had been made on duty. However, and crucially, employers may not respond to the accusation of culpable misconduct with „qualified disapproval“, which is foreign to the catalogue of disciplinary measures. The Federal Administrative Court found that penalising culpable breaches of official duty is only possible within disciplinary law. Censure as part of the official right to issue instructions could only be directed at future official behaviour, but not at past circumstances.

The Federal Administrative Court thus draws a clear line between disciplinary measures and other measures of official supervision. If employers wish to punish an allegation of culpable misconduct, they must initiate disciplinary proceedings. Caution is therefore required when issuing reprimands outside of disciplinary proceedings. This decision is to be welcomed because it makes it easier to distinguish between measures under the right to issue instructions and measures under disciplinary law.