Headscarf ban for legal trainee when exercising sovereign activities with external effect
When she was recruited by the Oberlandesgericht München to the legal clerkship service, the applicant was subject to an obligation which prohibited her from wearing 'garments, symbols and other characteristics' 'which are objectively such as to affect confidence in the religious neutrality of the exercise of the service' when carrying out sovereign activities with an external impact, such as the service of the public prosecutor's office or the examination of witnesses, which in fact led to a prohibition on the applicant wearing the headscarf in certain situations of the legal clerkship service.
After the Munich Higher Regional Court had lifted the contested requirement after the plaintiff had performed the civil and criminal law station, the plaintiff changed her action before the Augsburg Administrative Court to a declaratory judgment that the official requirement was unlawful.
The first-instance decision of the VG Augsburg admitted the action, since it saw the plaintiff's special interest in establishing illegality in the form of a rehabilitation interest. In addition, it considered the complaint to be well-founded, since the requirement infringed its fundamental right to freedom of religion and so far, there has been no parliamentary law necessary to justify an encroachment on fundamental rights.
In the second instance, however, the Bavarian Administrative Court, on appeal by the Free State of Bavaria, set aside the first-instance judgment on the grounds that the action was already inadmissible, since there was no discernible legitimate interest on the part of the plaintiff in establishing the illegality of the condition which had already been fulfilled, since it had not constituted a far-reaching encroachment on fundamental rights. (BayVGH, judgement of 07.03.2018, 3 BV 16.2040)
However, the decision of the BayVGH is not yet final.