Public actors are legally bound to the constitutional principle of equal treatment which, for instance, prohibits discrimination on grounds of religion. State institutions may only deviate from this if an exemption clause is provided. An example for such an exception provision is the judges' obligation to neutrality. They must also maintain religious neutrality when exercising their office. In contrast, articled clerks do not exercise judicial activity and thus do not fall within the scope of the required judicial neutrality.
Requirement for law clerk at court
As part of her judicial clerkship, the plaintiff completed a compulsory training at a Bavarian District Court. There she was asked to refrain from wearing her Muslim headscarf when exercising official duties with public visibility. When the plaintiff refused to take off her headscarf for religious reasons, she was not allowed at the judges' table where she would have conducted court sessions under the supervision of the training judge as it is usually customary for law clerks during this training phase. After she had initially submitted an unsuccessful complaint regarding the aforementioned requirement, she filed a suit at the Administrative Court of Augsburg (Az. Au 2 K 15,457).
On the 30th of June 2016, the Administrative Court of Augsburg ruled that the requirement that forbade the wearing of a headscarf when exercising official duties with public visibility was unlawful due to the lack of legal basis. BUG provided legal support to the plaintiff during the trial. Here you can access the written judgment in its entirety.
Here you can find the press release of BUG and the lawyer and our press review regarding the first instance of the case.
Owing to the fundamental importance of this matter, the court has given leave to appeal the case at the Higher Administrative Court in Munich. The respective trial took place on March 7, 2018. The Higher Administrative Court of Bavaria rejected the lawsuit in the second instance. In conjunction with the plaintiff's lawyer we have filed an appeal.
The final appeal hearing took place at the Federal Administrative Court in November 2020. Since the headscarf ban was not based on a parliamentary law, it was found to be unlawful. Ruling in favour of the plaintiff, the appeal judgment of the Bavarian Administrative Court in Munich was thus overturned as you can see in the Federal Administrative Court's verdict.