Dhe dispute about the competences of the self-government of judges in the appointment of judges in Baden-Württemberg has not been clarified in the first instance before the administrative court in Stuttgart. The 10th chamber of the court explained the complaint of the Baden-Württemberg Minister of Justice Marion Gentges (CDU) against a decision of the Presidential Council inadmissible. “The legal protection against the counter-proposal is not permissible,” said the presiding judge Friedrich Klein.
With her lawsuit against the “counter-proposal” of the Presidential Council for the appointment of the President at the Higher Regional Court (OLG) Stuttgart fluent. The Presidential Council had proposed making the 51-year-old current President of the Regional Court, Andreas Singer, the future OLG President. The minister had previously proposed to the Presidential Council to appoint 49-year-old Beate Linkenheil as the new OLG President. The Presidential Council, which consists of nine judges, unanimously rejected this. Linkenheil heads Department I in the Ministry of Justice and is considered to be close to the CDU; Singer is a member of the FDP. Because the Higher Regional Court President in Stuttgart is also the employer of around 1,000 judges and therefore has organizational responsibility, the appointment is of political importance.
The procedures for naming judges are not only controversial in Stuttgart. The German Lawyers’ Conference also recently addressed the issue. At its core, it is a matter of which competences the presidential councilors have in the appointment procedure: do they only have a controlling function or do they have their own decision-making powers? According to the Minister and her Ministerial Director Elmar Steinbacher, the Presidential Council exceeded its powers by voting in favor of Singer in January. Klein also put forward the arguments of the plaintiff again in the hearing: The Presidential Council has “no discretion of its own”, unlike the judge selection committee, it has no selection authority. Even if the selection decision is based on an unlawful assessment, the Presidential Council can only bring about a reassessment, but no personnel decisions “at its own discretion”.
The court discussed in detail the application procedure claim under Article 33 of the Basic Law and came to the conclusion that at the stage of the selection procedure there is no possibility for judges and the ministry to take legal action before the administrative courts. The judge candidates could assert their claims under Article 33 “first and exclusively” in a competitor dispute, i.e. after the decision of the judge selection committee. The Judges’ Act provides for the judges’ selection committee to make a decision “immediately” if the ministry and the Presidential Council cannot reach an agreement. According to the administrative judges, the minister should have waited for the decision of the judges’ selection committee. “With the introduction of the judge selection committee instead of the final decision-making right of the supreme service authority, the executive’s personal sovereignty and organizational rights have been restricted,” the court decided.
Gentges can appeal against the decision before the Administrative Court in Mannheim or, as provided for by law, have the judge selection committee decide. Then she would have to put up with Singer. Gentges would need a two-thirds majority to get their candidate accepted. She probably wouldn’t have, because the committee consists of eight judges, a lawyer and six members of the state parliament. A spokeswoman for the ministry said it had not been decided on the content. It is the task of the administrative court to clarify the fundamental legal issues, and we are waiting for the written judgement.