The claimants are police officers employed by the defendant, the Federal Republic of Germany, and at the time of the case in dispute were holding various positions, from police constable (Polizeimeister) up to chief inspector (Polizeihauptkommissar). They claim additional compensatory time off (beyond the time off already granted to them) for their deployment on the occasion of the so-called G7 summit in Elmau in 2015. Claimants no. 2 to 6 furthermore claim additional compensatory time off for their subsequent deployment on the occasion of the so-called Bilderberg meeting in Austria; claimant no. 1, who had also been deployed there, withdrew his corresponding claim during the appeal proceedings on points of fact and law.

The deployment at the G7 summit was carried out under the operational leadership of the President of the M. Federal Police Regional Office (Bundespolizeidirektion). Point 6.2.2 of the Regional Office's deployment order no. 2 dated 20 May 2015 reads as follows:

"The necessary overtime is hereby ordered on the basis of section 88 of the Act on Federal Civil Servants (BBG, Bundesbeamtengesetz). If the prerequisites are met, the provisions of section 11 of the Act on Federal Police Officers (BPolBG, Bundespolizeibeamtengesetz) in conjunction with the respective decrees/orders in force shall apply. In this case, the decision on the amount of compensatory time off is taken by the police commander (Polizeiführer) after the deployment. Orders/determinations made in advance are not permitted."

Throughout the duration of the deployment, the claimants and their unit of around hundred police officers (Hundertschaft) were accommodated at a hotel. They were instructed to refrain from consuming alcohol, to be contactable at all times, and to continuously carry their personal equipment, including weapons, also during the times referred to as "rest periods". They were only allowed to leave the hotel, if at all, on specific occasions and only after prior approval, but not at their own discretion.

Immediately after this deployment ended, the claimants and their unit were deployed at the Bilderberg meeting, and, during this new deployment, also were accommodated at a hotel and were subject to the same applicable instructions.

For the deployment on the occasion of the G7 summit, the defendant, via a so-called "sharp settlement approach", calculated a claim for compensatory time off of 90.75 hours each for claimants no. 1 to 5, and of 47 hours for claimant no. 6 who had arrived and been deployed later. It also granted the claimants two days of special compensatory time off. In the calculation of the compensatory time off, the defendant did not take into account the claimants' "rest periods" at the hotel.

For the deployment at the Bilderberg meeting, the defendant granted the claimants uniform compensatory time off pursuant to section 11 BPolBG, in the amount of 50 hours.

In August 2015, the claimants requested that the "rest periods" be taken into account in the "sharp settlement approach" as on-call duty (Bereitschaftsdienst). The defendant rejected this request, the claimants' objections remained unsuccessful.

The Administrative Court (Verwaltungsgericht) ordered the defendant to grant claimants no. 1 to 5 additional compensatory time off of 5 hours in total for their deployment on the occasion of the G7 summit in Elmau; it dismissed the claims with regard to all other aspects. The action filed by claimant no. 6 was dismissed in its entirety.

Upon the claimants' appeals on points of fact and law, the Court of Appeal partially amended the Administrative Court's judgments and ordered the defendant to grant each of the claimants no. 1 to 5 additional compensatory time off of 166.5 hours for their deployment on the occasion of the G7 summit in Elmau, and to grant claimant no. 6 additional compensatory time off of 104 hours. With regard to the deployment on the occasion of the Bilderberg meeting, the Court of Appeal ordered the defendant to grant claimants no. 2 and 4 additional compensatory time off of 30.5 hours each, and to grant claimants no. 3, 5 and 6 additional compensatory time off of six hours each. The Court of Appeal discontinued the proceedings of claimant no. 1 insofar as he had withdrawn his claim regarding the deployment on the occasion of the Bilderberg meeting.

The defendant filed appeals on points of law against each one of the six appeal judgments. The Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) combined the six cases for a joint decision.

The defendants' appeals on points of law were partly successful.

14 The defendants' admissible appeals on points of law are each in part well-founded.

15 With regard to the deployment of claimants no. 1 to 6 at the G7 summit in Elmau, the appeal judgments, to the extent described in the operative part of the judgment, are based on a violation of federal law (section 137 (1) no. 1 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)); to this extent, the judgments do not prove to be correct for other reasons within the meaning of section 144 (4) VwGO either (1.). Regarding the deployment of claimants no. 2 to 6 at the Bilderberg meeting, the appeal judgments are also based on a violation of federal law; however, the judgments prove to be correct for other reasons within the meaning of section 144 (4) VwGO (2.).

16 According to the applicable substantive law, the relevant point in time for the assessment of the factual and legal situation is the period of the deployments in dispute (...).

17 1. For the deployment at the G7 summit in Elmau, claimants no. 1 to 6 each have a claim for additional time off pursuant to section 88 second sentence BBG in the version promulgated on 5 February 2009 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 160), for the point in time relevant here last amended by article 1 of the Act of 6 March 2015 (BGBl. I p. 250), however, to a lesser extent than granted by the Court of Appeal.

18 Pursuant to section 88 first sentence BBG, civil servants must provide service beyond regular weekly working time without compensation if compelling service circumstances so require and if such overtime is limited to exceptional cases. If they must serve more than five hours a month beyond regular working time because of overtime ordered or approved by the employer, they must be granted equivalent time off within one year for the overtime worked above and beyond the regular working time pursuant to section 88 second sentence BBG.

19 Regarding the deployment at the G7 summit in Elmau, the Court of Appeal correctly assumed that section 88 second sentence BBG as the legal basis for the claim is not superseded by section 11 BPolBG in the version promulgated on 3 June 1976 (BGBl. I p. 1357), for the point in time relevant here last amended by article 3 of the Act of 15 March 2012 (BGBl. I p. 462) (a). The Court of Appeal furthermore did not err in law regarding the further assumption that the claimants' so-called "rest periods" during the deployment constitute periods of on-call duty under a correct legal classification (b) and that the defendant ordered overtime in this respect (c). Regarding the amount of compensatory time off to which the claimants are entitled, the Court of Appeal also correctly assumed that under section 88 second sentence BBG one hour of time off has to be granted for each hour of on-call duty. The only aspect that constitutes an error in law is the failure to take into account the two days of special compensatory time off already granted to the claimants (d). Regarding this amount that is subject to correction, the appeal judgments do not prove to be correct for other reasons within the meaning of section 144 (4) VwGO (e).

20 a) The claim for time off pursuant to section 88 second sentence BBG for the deployment at the G7 summit in Elmau is not superseded by a claim pursuant to section 11 BPolBG. This claim would only have superseded the special leave pursuant to section 88 second sentence BBG if the employer had opted for a lump-sum settlement approach.

21 According to section 11 first sentence BPolBG, uniform compensatory time off is determined in lieu of time off pursuant to sections 87 and 88 BBG for deployments and for exercises of major units, units or partial units of the Federal Police with a duration of more than one day, and must adequately take into account the duration of the deployment or exercise as well as the civil servants' utilisation for service. According to section 11 second sentence BPolBG, the Federal Minister of the Interior (Bundesminister des Inneren) or the office appointed by him or her takes this decision. According to section 11 third sentence BPolBG, compensatory time off is to be granted as soon as service circumstances so allow, if possible within three months.

22 As correctly stated by the Court of Appeal, the option of applying a lump-sum settlement approach as provided for in section 11 BPolBG does not serve the civil servants' individual interests, but exclusively the interests of the employer. This refers to the public interest in a reduction of administrative expenditure and - nowadays only to a limited extent - in safeguarding the operational readiness of the police forces (see Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 7/3494 p. 16, BT-Drs. 11/3293 p. 51; BVerwG, decision of 28 November 2018 - 2 B 29.18 - (...) para. 13). The provision was expressly created in order to give the employer the "option" of granting civil servants compensatory time off based on a lump-sum settlement approach "in lieu of" the precisely ("sharply") calculated time off (BT-Drs. 7/3494 p. 16). Insofar, the employer can choose between the so-called sharp settlement approach and the lump-sum ("uniform") settlement approach (see BVerwG, decision of 28 November 2018 - 2 B 29.18 - (...) para. 11). Whether the lump-sum settlement approach is used and what the extent of this compensation is depends solely on whether the Federal Minister of the Interior or the office appointed by him or her has made use of the power to opt for a lump-sum settlement approach when exercising its discretion in a manner that is oriented towards the purpose of the law. If the employer opts not to use the lump-sum settlement approach, section 11 BPolBG as a matter of principle does not give rise to a subjective public-law right for the civil servant.

23 The amendment of section 11 BPolBG in1988 (BGBl. I p. 2363) does not lead to a different conclusion either. Even though the legislature replaced the term "may ... determine" in the first sentence by the term "is ... determined" and added the new second sentence with the term "takes", the legislature did not abolish the employer's right of choice with this amendment. Interpreting the provision in this manner would fail to understand the scope of the amendment and would contradict the legislature's intent, who did not wish to change anything with regard to the employer's existing options to choose and decide. The amendment at the time rather was intended to broaden the requirements and the scope of the provision which had proven to be too narrow. In particular, the intention was to be able to apply the provision to police deployments with durations of less than five days, and to take burdens caused by stand-by duty (Rufbereitschaft), travel times and rest periods into account when calculating the lump-sum settlement amount (BT-Drs. 11/3293 p. 51). The explanatory memorandum to the draft act does not contain any indication that the intention of the rewording of the provision from "may" to "is" and "takes" was to eliminate the employer's option to choose.

24 b) The "rest periods" during the deployment listed by the defendant in the duty rosters and referred to as such must under a correct legal classification be regarded as working time, namely times of on-call duty within the meaning of section 2 no. 12 of the Working Time Ordinance for Federal Civil Servants (AZV, Verordnung über die Arbeitszeit der Beamtinnen und Beamten des Bundes), in the version promulgated on 23 February 2006 (BGBl. I p. 427), for the time relevant here last amended by article 1 of the Ordinance of 11 December 2014 (BGBl. I p. 2191). According to this provision, on-call duty is defined as the obligation to be present at a location determined by the employer in order to commence the provision of services if required without being obligated to continuously provide services, if times without provision of work predominate.

25 (1) According to the established jurisprudence of the Federal Administrative Court, times are to be classified as on-call duty if the civil servants concerned are obligated to hold themselves ready for immediate deployment at any time at a location outside their private sphere determined by the employer, and if experience shows that utilisation for service is to be expected (see BVerwG, judgments of 22 January 2009 - 2 C 90.07 - (...) para. 14, of 29 September 2011 - 2 C 32.10 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 140, 351 para. 12 and of 17 November 2016 - 2 C 23.15 - BVerwGE 156, 262 para. 15). The Senate most recently summarised this by stating that on-call duty in this sense requires that the civil servant is obligated to hold himself or herself ready at a location that cannot be "privately" freely chosen and changed, and that the relevant time periods are characterised by "holding oneself ready" for a deployment that may happen at any time (BVerwG, decisions of 20 October 2020 - 2 B 36.20 - (...) para. 20 and of 1 December 2020 - 2 B 38.20 - (...) para. 12, 16 et seq.).

26 Insofar, the relevant aspect is whether the time periods, in an evaluating assessment, have the nature of on-call duty, free time or a form of stand-by duty (BVerwG, judgment of 22 January 2009 - 2 C 90.07 - (...) para. 17; decision of 1 December 2020 - 2 B 38.20 - (...) para. 17). The extent to which experience shows that utilisation of the civil servants for service is to be expected may in this context be a material aspect for the assumption that the relevant time periods constitute working time in the form of on-call duty (BVerwG, decision of 1 December 2020 - 2 B 38.20 - (...) para. 16, judgments of 12 December 1979 - 6 C 96.78 - BVerwGE 59, 176 <181 et seq.> and of 29 January 1987 - 2 C 14.85 - (...)). However, such a standardising overall assessment of the frequency of actual deployments is not required if the character of "holding oneself ready" for a deployment that may happen at any time already results from the nature of the deployment (BVerwG, decision of 1 December 2020 - 2 B 38.20 - (...) para. 17).

27 (2) With the setting of these standards, the Senate sees itself in line with the case-law of the Court of Justice of the European Union (CJEU, hereinafter Court of Justice). The case-law of the Court of Justice must be observed for the differentiation between working time and rest period within the meaning of article 2 no. 1 and 2 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (Directive 2003/88/EC, Working Time Directive - OJ L 299 p. 9). For section 88 second sentence BBG this does not follow directly from EU law; however, it corresponds to the German legislature's intent.

28 The application of the definition of working time in Directive 2003/88/EC is limited to the scope of application of that Directive (CJEU, judgment of 21 February 2018 - C-518/15 [ECLI:EU:C:2018:82], Matzak - (...) para. 43; Advocate General Saugmandsgaard Øe, opinion of 28 January 2021 - C-742/19 [ECLI:EU:C:2021:77], Ministrstvo za obrambo - (...) para. 109; (...)). As the Senate has already stated in the context of the predecessor Directive 93/104/EC which was identical in this respect, its scope of application is limited to health and safety at work legislation. According to its article 1 (2), the scope of the Directive only covers minimum periods of daily rest, weekly rest and annual leave, breaks and maximum weekly working time as well as certain aspects of night work, shift work and patterns of work (BVerwG, judgment of 29 April 2004 - 2 C 9.03 - (...); likewise Federal Labour Court (BAG, Bundesarbeitsgericht), judgment of 5 June 2003 - 6 AZR 114/02 - Rulings of the Federal Labour Court (BAGE, Entscheidungen des Bundesarbeitsgerichts) 106, 252 <260>).

29 However, the German legislature has codified a uniform definition for the term on-call duty in section 2 AZV, which applies both to the provisions of the law on civil servants relating to health and safety at work - such as section 13 (1) second sentence AZV - and to the other provisions relating to working time - such as section 88 second sentence BBG. Even though the latter of the above provisions is not covered by the scope of application of Directive 2003/88/EC, the term must in such cases nevertheless also be interpreted in line with the case-law of the Court of Justice. The relevant consideration here is that such an extension as well as the continuous adjustment to the case-law of the Court of Justice is in line with the German legislature's intent (see CJEU, judgment of 26 March 2020 - C-66/19 [ECLI:EU:C:2020:242], Kreissparkasse Saarlouis - (...) para. 28 et seq.; Federal Court of Justice (BGH, Bundesgerichtshof), decision of 31 March 2020 - XI ZR 581/18 - (...); BAG, decision of 18 April 2012 - 4 AZR 168/10 - BAGE 141, 173 para. 15 et seq.; (...)). This is the case here. The statements in the explanatory memorandum to section 87 (2) BBG (BT-Drs. 16/7076 p. 121) show that the legislature always acted on the assumption of a uniform definition of the term on-call duty, and did not intend to introduce different definitions for the law governing civil servants' working time.

30 According to the case-law of the Court of Justice, which the Senate follows, and on which it bases its own decisions, the decisive aspect for the classification of on-call duty as "working time" within the meaning of Directive 2003/88/EC is that the worker is required to be present at the place determined by the employer and to be available to the employer in order to be able to provide his or her services immediately in case of need (CJEU, judgments of 9 September 2003 - C-151/02 [ECLI:EU:C:2003:437], Jaeger - (...) para. 63, of 1 December 2005 - C-14/04, Dellas - (...) para. 48 and of 21 February 2018 - C-518/15, Matzak - (...) para. 59). During such a period of on-call duty, the worker, who is required to remain at his or her workplace and to be available to his or her employer, must remain apart from his or her family and social environment and has little freedom to manage the time during which his or her professional services are not required. Therefore, the whole of that period must be classified as "working time", within the meaning of Directive 2003/88/EC, irrespective of the professional activity actually carried out by the worker during that period (CJEU, judgments of 9 March 2021 - C-344/19 [ECLI:EU:C:2021:182], Radiotelevizija Slovenija - (...) para. 35 and - C-580/19 [ECLI:EU:C:2021:183], Stadt Offenbach am Main - (...) para. 36; see also judgment of 5 October 2004 - C-397/01 et al. [ECLI:EU:C:2004:584], Pfeiffer et al. - (...) para. 93). Where, owing to the absence of a requirement to remain at the workplace, a period of on-call duty cannot automatically be classified as "working time", within the meaning of Directive 2003/88/EC, the national courts must still determine whether that classification is nevertheless required due to the consequences that all the constraints imposed on the worker have, during that period, for his or her ability freely to manage his or her time while his or her professional services are not required and to pursue his or her own interests (CJEU, judgments of 9 March 2021 - C-344/19, Radiotelevizija Slovenija - (...) para. 45 and - C-580/19, Stadt Offenbach am Main - (...) para. 44).

31 (3) According to these standards, the times referred to by the defendant as the claimants' "rest periods" during the deployment at the G7 summit in Elmau were periods of on-call duty within the meaning of section 2 no. 12 AZV. During the "rest periods", the claimants as a matter of principle had to hold themselves ready at a hotel determined by the employer, and therefore at a location they could not "privately" freely choose. Due to the instructions relating to the "rest periods", the times in dispute furthermore were characterised by the claimants having to "hold themselves ready" for a deployment that may happen at any time. This results in particular from the fact that the claimants had to be contactable at all times and were only allowed to leave the hotel for specific purposes and only after prior approval, but not at their own discretion. Furthermore, they had to continuously carry their personal equipment, including weapons. This means that the claimants were not merely accommodated at a hotel, but, due to the applicable instructions, were subject to restrictions to their possibility of attending to their personal and social interests going significantly beyond this. Whether the prohibition to consume alcohol may also be of relevance does not need to be decided here.

32 c) Furthermore, the defendant ordered on-call duty during the "rest periods" as overtime within the meaning of section 88 second sentence BBG.

33 According to the established jurisprudence of the Federal Administrative Court, orders or approvals of overtime must refer to specific, time-related overtime circumstances. There is no requirement that the number of hours of overtime to be worked or that have already been worked must be known at the time when the work is ordered or approved.

34 The employer decides whether to order or approve overtime in its discretion. In this regard, the employer must in particular examine whether overtime is necessary at all, in view of the service needs, and which civil servant is to take on that overtime (BVerwG, judgment of 17 November 2016 - 2 C 23.15 - BVerwGE 156, 262 para. 14; decision of 2 April 2019 - 2 B 43.18 - (...) para 9; see also judgment of 23 September 2004 - 2 C 61.03 - BVerwGE 122, 65 <69>). This is not the case if, for instance, working times are simply determined in duty rosters or shift schedules. As such determinations do not constitute orders that make reference to section 88 BBG, they do not result in overtime, but merely in regular working time or - if the extent of such work is unlawful - to excessive work (BVerwG, judgments of 28 May 2003 - 2 C 28.02 - (...) and of 19 April 2018 - 2 C 40.17 - BVerwGE 161, 377 para. 17, 20).

35 The fact that an employer - as in the case in dispute here - did not exercise its discretion on a specific occasion for one specific civil servant, but for multiple civil servants, and ordered overtime for multiple civil servants in an instruction covering them all - here: in a deployment order - does not stand against the assumption that overtime was ordered. If the employer, when exercising its discretion, comes to the conclusion that a group or all of the civil servants to be deployed on the specific occasion will have to work overtime if necessary, due to the significance or the extent of the occasion, the employer does not need to decide and order this in relation to each individual civil servant.

36 Applying the above standards, the instruction in point 6.2.2 of deployment order no. 2 of 20 May 2015 was an order to provide overtime within the meaning of section 88 second sentence BBG. With this order, the defendant expressed that any working hours beyond the regular working time provided during the deployment on the occasion of the G7 summit were ordered as overtime. Based on this order, the department leaders and the leaders of the units consisting of around hundred police officers (Hundertschaftsführer) were permitted to utilise the civil servants assigned to them throughout the time of the deployment also beyond the working times provided for in the shift schedules, without themselves having to take a decision on the ordering of overtime. The decision on ordering such overtime had already been taken by a superordinate level through deployment order no. 2. This applies to the periods of full service as well as to the times spent at the hotel. Deployment order no. 2 of 20 May 2015 does not differentiate in this respect. In particular, it does not contain a restriction to the categories of the duty rosters nor a restriction to specific cases of additional work, such as the additional dispatching from the hotel in specific deployment situations.

37 The fact that the employer, due to the unpredictable course of the deployment was unable, when issuing the order, to predict the extent to which the civil servants would provide full service and the extent and intensity of their utilisation beyond the full service, and that the employer therefore merely ordered the "necessary overtime" does not stand against the assumption that this constituted a specific order. As has been shown above, an order of overtime work does not require that the extent of the overtime hours that will need to be provided is known at the time the order is issued. The deployment at the G7 summit in Elmau was a specific case of overtime work for a defined time period to which the order made reference.

38 d) The claim to additional corresponding time off pursuant to section 88 second sentence BBG which the claimants therefore have for this deployment amounts to 150.1 additional hours for claimants no. 1 to 5 and to 87.6 additional hours for claimant no. 6 (who was deployed at a later point in time).

39 "Corresponding time off" within the meaning of section 88 second sentence BBG means, for on-call duty as well as for full service, full compensation with free time at a rate of one to one. For overtime, this also does not result directly from EU law, but from national law.

40 Directive 2003/88/EC does not contain requirements regarding the amount of the compensatory claim for overtime provided for under section 88 second sentence BBG. The provisions of the Directive, such as article 6 (b) of Directive 2003/88/EC, require that the Member States take the measures necessary to ensure that the safety and health of workers are protected and that, for instance, the average working time for each seven-day period, including overtime, does not exceed 48 hours. When implementing the Directive, it is therefore in particular required that measures are taken to ensure that, for instance, the limits of article 6 (b) of Directive 2003/88/EC are not exceeded and that the scope for action granted under the Directive, such as in article 16 (b) and article 19 of Directive 2003/88/EC, is implemented only in conformity with EU law (see BVerwG, judgments of 20 July 2017 - 2 C 31.16 - BVerwGE 159, 245 para. 53 et seqq. and - 2 C 36.16 - (...) para. 50 et seqq.). However, the Directive does not require that a claim for compensation based purely on the law of a Member State and due because the regular working time provided for by Member State legislation has been exceeded must have a specific amount (Münster Higher Administrative Court (OVG, Oberverwaltungsgericht), judgment of 15 September 2020 - 6 A 2634/18 - (...) para. 91 et seqq.). Insofar as earlier decisions by the Senate may suggest that EU law contains such "requirements" (BVerwG, judgment of 17 November 2016 - 2 C 23.15 - BVerwGE 156, 262 para. 20 and decision of 28 November 2018 - 2 B 29.18 - (...) para. 9), the Senate no longer adheres to this view.

41 However, section 88 second sentence BBG provides for a claim of one hour of time off for each hour of on-call duty, independent of EU law. Arguments for this are the wording of the provision, which bases the determination of the claim for compensatory time off solely on the time period of overtime provided, and, in particular, the spirit and purpose of the provision. Time off for overtime is intended to ensure compliance with the regular working time - at least with regard to the overall sum of working hours. Civil servants are intended to have at their disposal unreduced free time to use in accordance with their personal needs and interests. This conclusion is supported by the legislative history of the provision. The term "corresponding" time off was inserted in 1965 into the provision of section 72 (2) BBG which then regulated the claim for compensatory time off. Its intention was to provide for time off that corresponds to the (time) scope - but not to the intensity - of overtime (BVerwG, judgment of 17 November 2016 - 2 C 23.15 - BVerwGE 156, 262 para. 16 et seqq.; decision of 28 November 2018 - 2 B 29.18 - (...) para. 9).

42 Accordingly, for the rest period that is to be classified as on-call duty, claimants no. 1 to 5 each have a claim to 166.5 additional hours of time off under section 88 second sentence BBG, and claimant no. 6, whose deployment started later, has a claim to 104 additional hours of time off.

43 However, in the case of all six claimants, the defendant has already fulfilled that claim in the amount of 16.4 hours by means of the two days of special compensatory time off which it had granted in addition "in order to take account of the service actually provided", i.e. specifically for the "rest periods". The appeal judgments that do not take this into consideration and recognise total service hours - including the time off periods already granted - of 352.4 hours and 208.4 hours respectively for a period of 336 hours (claimants no. 1 to 5: 14 days x 24 hours) and 192 hours respectively (claimant no. 6: 8 days x 24 hours) (i.e. more hours than 14 days and 8 days actually have), therefore are based on a violation of the law insofar as the Court of Appeal granted claimants no. 1 to 5 more than 150.1 hours each, and claimant no. 6 more than 87.6 hours of additional time off for the deployment on the occasion of the G7 summit in Elmau.

44 e) With regard to the correction by 16.4 hours respectively which was therefore required, the judgments of the Court of Appeal furthermore do not prove to be correct for other reasons within the meaning of section 144 (4) VwGO. A deviating claim for compensatory time off does not result from other legal bases, as, according to the above, the days of deployment have to be fully recognised as working time at 24 hours each, so that corresponding compensation is required.

45 It is therefore not necessary to address the other two legal bases on which the compensatory claim for excessive work may be based under the (national) law on civil servants (see, e.g., BVerwG, judgments of 28 May 2003 - 2 C 28.02 - (...) and of 17 November 2016 - 2 C 23.15 - BVerwGE 156, 262 para. 25), nor the liability claim under EU law due to a qualified breach of Directive 2003/88/EC (see, in this respect, e.g., BVerwG, judgments of 26 July 2012 - 2 C 29.11 - BVerwGE 143, 381 para. 15 et seqq. and of 20 July 2017 - 2 C 31.16 - BVerwGE 159, 245 para. 9 et seqq.).

46 f) The Senate does not fail to recognise the considerable problems also stressed by the Representative of the Interests of the Federation (Vertreter des Bundesinteresses) for the personnel and deployment planning of the police force, including budgetary burdens, which result for the defendant from the decision that, if classified legally correctly, the times referred by it as "rest periods" constitute times of on-call duty due to the restrictions for the civil servants described above. This legal classification can only be avoided if the employer refrains from imposing restrictions on the civil servants during such times which - as has been shown above (para. 31) - lead to such times being characterised by the civil servants having to "hold themselves ready" for a deployment; rather, the employer must really "leave them in peace". In this context, the Senate, however, stresses that the legislature does have options of reducing the above burdens - apart from the implementation of the reference period within the meaning of article 16 (b) of Directive 2003/88/EC and the extension of the reference period to one year via collective agreements or agreements concluded between the two sides of industry pursuant to article 19 of Directive 2003/88/EC. For instance, EU law does not provide for the requirement of equal treatment of full service and on-call duty outside the scope of application of Directive 2003/88/EC (see BVerwG, judgment of 29 April 2004 - 2 C 9.03 - (...); decision of 25 June 2020 - 1 WRB 3.19 - (...) para. 45; OVG Münster, judgment of 15 September 2020 - 6 A 2634/18 - (...) para. 91 et seqq.).

47 2. Regarding deployment at the Bilderberg meeting, the appeal judgments in the cases of claimants no. 2 to 6 are based on a violation of federal law, as the compensatory time off granted to the claimants - contrary to the view of the Court of Appeal - does not result from section 11 BPolBG (a). However, the judgments insofar prove to be entirely, i.e. to the extent granted, correct for other reasons within the meaning of section 144 (4) VwGO, as the claimants have a claim for compensatory time off to the extent granted under section 88 second sentence BBG (b).

48 a) For their deployment at the Bilderberg meeting from 10 to 14 June 2015, claimants no. 2 to 6 do not have a claim for uniform compensatory time off pursuant to section 11 BPolBG, as the provision is not applicable to this deployment. According to its spirit and purpose, the employer's right pursuant to section 11 BPolBG to opt for a lump-sum settlement approach requires that the deployment period includes hours of actual rest time, i.e. hours that are not working time. This is not the case here.

49 As shown above (para. 21 et seq.), section 11 BPolBG allows the employer to opt for a lump-sum settlement approach for deployments and exercises of companies, units or partial units of the Federal Police with a duration of more than one day, and to determine uniform compensatory time off which must adequately take into account the duration of the deployment or exercise as well as the utilisation of the civil servants for service. One of the main purposes of this right to opt for a lump-sum settlement approach is - as has also been shown above - to reduce administrative expenditure (BT-Drs. 7/3495 p. 16, 20; BT-Drs. 11/3293 p. 51; BVerwG, decision of 28 November 2018 - 2 B 29.18 - (...) para. 13). According to the legislature's intent, the time-consuming procedure of furnishing proof regarding periods of full service or on-call duty, stand-by duty, travel times and rest periods was intended to be dispensable. Against this background, the provision, according to its spirit and purpose, inevitably requires that the deployments or exercises that are settled under the lump-sum approach are deployments and exercises that, under working-time law, do not exclusively consist of full service and/or on-call duty, i.e. not exclusively of working time. For exercises and deployments where this is not the case and which, under working-time law, consist exclusively of full service and/or on-call duty, a time-consuming procedure of furnishing proof and corresponding administrative expenditure are not required for all civil servants for whom full service and on-call duty are treated equally with regard to the regular working time and under section 88 BBG, so that such expenditure cannot be reduced via a lump-sum settlement approach. Compensation for such deployments and exercises can be calculated without furnishing proof, as 24 hours per day of deployment constitute working time.

50 Therefore, section 11 BPolBG is not applicable to the deployment of claimants no. 2 to 6 at the Bilderberg meeting. According to the factual findings of the Court of Appeal, the total of 105 hours of deployment each are to be considered under working-time law exclusively as hours of full service and on-call duty. Under the above standards, the claimants' so-called "rest periods" during this deployment are also to be classified as times of on-call duty, as the claimants were subject to restrictions during the "rest periods" that were similar to those applicable during the deployment at the G7 summit in Elmau.

51 b) However, in conclusion, the appeal judgments, which assume that section 11 BPolBG is applicable and are therefore based on a violation of the law, prove to be correct for other reasons within the meaning of section 144 (4) VwGO. Claimants no. 2 to 6 each have a claim for compensatory time off under section 88 second sentence BBG, in the same amount as the claim granted by the Court of Appeal under section 11 BPolBG.

52 For the reasons described above (para. 48 et seq.), as the employer did not have the right to opt for a lump-sum settlement approach, the claim under section 88 second sentence BBG is not superseded by the claim under section 11 BPolBG. Due to the identical applicable instructions - i.e. as the same restrictions were applicable during the so-called "rest periods" as during the deployment at the G7 summit in Elmau - the conditions of the provision are also met for the deployment at the Bilderberg meeting. Accordingly, claimants no. 2 to 6 provided overtime during the deployment at the Bilderberg meeting, the scope of which has to be determined - as for the deployment at the G7 summit in Elmau - taking into consideration the so-called "rest periods".

53 Regarding the amount of the claimants' not yet satisfied entitlement to compensatory time off under section 88 second sentence BBG for the deployment at the Bilderberg meeting therefore totals to 30.5 hours each. The 105 hours of deployment constitute 105 hours of working time, of which the regular working time of 24.5 and the compensatory time off already granted amounting to 50 hours had to be deducted. This claim was to be granted to claimants no. 2 and 4 to the full extent, and to claimants no. 3, 5 and 6 in accordance with the limited scope of their applications.