Administrative CourtDüsseldorf, 24.08.2017, Ref.: 2 L 3279/17
According to Article 33 (1) and (2) of the Basic Law, every German has the same civic rights and duties in every federal state. Furthermore, every German has equal access to every public office according to their suitability, ability and professional performance.
It can be seen from this that the Basic Law sees the civil service as an institution which, based on expertise, professional performance and loyal fulfilment of duty, is intended to ensure a stable administration and thus represent a balancing factor vis-à-vis the political forces shaping state life (BVerfGE 7, 162).
In this context, aptitude refers to skills that generally benefit the job, such as talent, general knowledge, life experience and general training. Expertise means specialist knowledge, specialist skills and proven ability in the subject. Aptitude covers, in particular, personality and character traits that are important for a specific office (BVerfGE 139, 19, 49). In the case of the police service of North Rhine-Westphalia, this includes personal aptitude, which also includes tattoos. This is because the neutrality and representative function of the uniform of the police officer is to be protected in the police service.
1. Background to the case: Tattoo as a reason for rejection
The applicant applied for police training in North Rhine-Westphalia in 2017. He was rejected due to a large tattoo on his forearm - a lion's head measuring around 20×14 centimetres. The state of North Rhine-Westphalia referred to a decree from the Ministry of the Interior, which states that visible and large tattoos represent an "absolute lack of suitability" for police officers. The decree aims to ensure that the authority and reputation of the police are not impaired by such external appearances. According to the state, applicants with conspicuous tattoos are treated with less respect in society, which could affect their suitability for the police service.
2. Application by the applicant for interim relief
The applicant then filed an application for interim relief with the Düsseldorf Administrative Court, as he wanted to continue to take part in the police training programme. The aim of the application was not to be disadvantaged in the ongoing selection process until a final judgement in the main proceedings had been made. As police training was due to begin on 1 September 2017, a later decision in the main proceedings would have meant that the applicant could no longer be admitted in time.
3. Admissibility of the application and anticipation of the main proceedings
The Administrative Court ruled that the application was admissible, although it was an anticipation of the main proceedings. Such anticipation is exceptionally admissible if the applicant would otherwise face unreasonable disadvantages and would probably be successful in the main proceedings. As the applicant would not be able to participate in the training programme in time without the interim injunction and would suffer irreversible disadvantages as a result, the application was allowed.
4. Merits of the application: No sufficient grounds for rejection
The court came to the conclusion that the applicant should not be rejected solely on the basis of the size of his tattoo. According to Article 33 (2) of the Basic Law, all Germans have equal access to public office on the basis of their suitability, ability and professional performance. Although the employer can impose requirements regarding external appearance, these must be justified and necessary. The administrative practice of the state of North Rhine-Westphalia of recognising large tattoos across the board as a lack of aptitude was classified as unlawful.
5. No impairment of the neutrality and representation of the police
The court found that the applicant's tattoo on the inside of his forearm did not affect the neutrality and acceptance of the police uniform. There were no reliable findings or studies to prove that such tattoos would weaken the public's trust in the police. The assumption that a visible tattoo automatically implies a dubious demeanour on duty was not considered tenable. The court also saw no reason to judge tattoos as problematic with regard to the representation of the police, which plays a role in a pluralistic society.
Overall, the rejection of the applicant was considered unfounded and the court ruled that provisional admission to the further selection procedure was justified.
Source: Administrative Court of Düsseldorf
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