The parties are in dispute about the lawfulness of an occasion-related performance appraisal.

The claimant, who was born in 1971, is employed by the defendant city on the second promotion post in the higher intermediate service (Stadtamtfrau). From 17 December 2012 until May 2021, the claimant was the chairperson of the staff council of the defendant. Initially she was released from 80 percent of her duties and then from 85 percent of them from mid-October 2015, and completely starting from July 2017.

In March 2015, the defendant advertised two job offers for managerial posts; the claimant was one of those who applied. The defendant prepared occasion-related performance appraisals for all applicants for the period from 1 February 2012 to 31 January 2016. The mayor of the defendant (appraiser) obtained an appraisal contribution from the direct superior of the claimant and conducted a personal interview with the claimant on 29 September 2016. The performance appraisal dated 7 October 2016 was handed over to the claimant on 26 October 2016. The interview scheduled for 10 November 2016 to discuss the performance appraisal was broken off by the claimant shortly after it started. The performance appraisal was discussed with the claimant on 30 November 2016.

The performance appraisal is split into an appraisal of the personal performance (Leistungsbeurteilung) and one of the qualifications (Befähigungsbeurteilung). In the overall result of the claimant's performance, she achieved the second-highest rating "B". The defendant did also appraise qualification elements. The defendant did not, however, reach any overall result concerning the qualifications nor did it combine the rating of the personal performance and of the qualifications. The claimant has not been selected for either of the two posts advertised. Proceedings by the claimant for interim measures have remained unsuccessful. Both promotion posts have now been filled by competitors of the claimant.

The claimant filed an unsuccessful objection against the performance appraisal. The Administrative Court (Verwaltungsgericht) ordered the defendant to prepare a new performance appraisal for the claimant taking into consideration the Court's legal opinion. Upon the defendant's appeal on points of fact and law, the Higher Administrative Court (OVG, Oberverwaltungsgericht) dismissed the action. 

The Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) restored the judgment of the Court of first instance provided that the legal opinion of the Federal Administrative Court is decisive for the preparation of the new performance appraisal of the claimant.

8 The claimant's appeal on points of law is well-founded. The appeal judgment violates article 33 (2) of the Basic Law (GG, Grundgesetz) and thus law that is subject to an appeal on points of law.

9 The action is admissible (1.) and well-founded. The performance appraisal of 7 October 2016 and the objection notice are unlawful and violate the rights of the claimant. With regard to the preparation of the new performance appraisal for the claimant for the period from February 2012 to the end of January 2016, the legal opinion of the Federal Administrative Court is decisive (section 113 (5) second sentence of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) applied accordingly). It is true that the defendant breached section 69 (8) of the Staff Representation Act of the Federal State of Rhineland-Palatinate (LPersVG RP, Landespersonalvertretungsgesetz) of 28 September 2010 (Law and Ordinance Gazette (GVBl., Gesetz- und Verordnungsblatt) 2010 p. 292), according to which the civil servant who is to be appraised has to be informed before the appraisal interview about his or her right to involve a member of the staff council in the interview. However, this breach of the law by the defendant ultimately does not lead to the action being successful since the claimant should have been aware of this right, irrespective of the specific occasion of her application, since she had been a member of the staff council of the defendant for many years (2.). The normative specifications of the law of the federal state of Rhineland-Palatinate have been and still are insufficient for the preparation of the occasion-related performance appraisal. However, even this fact does not lead to the success of the appeal on points of law. This is because the situation where there are insufficient normative specifications for the preparation of performance appraisals has to be tolerated for a transitional period (3.). The occasion-related performance appraisal is, however, unlawful and violates the rights of the claimant since the defendant did not in the course of the appraisal reach a final overall result which combines all appraised individual elements of the three criteria contained in article 33 (2) GG (4.). (...)

10 With regard to the content of an occasion-related performance appraisal the courts have to observe the limits of their competence to conduct a review. Control of the appraisal by the administrative courts is limited to a review as to whether the employer has violated procedural rules, has based its decision on incorrect facts, has misjudged the concepts to be applied or the legal framework, has failed to observe the generally applicable valuation standards or has been guided by extraneous considerations. However, the court may not perform a full review of the professional and personal appraisal of the civil servant by his or her superior or replace it by its own appraisal. This is because only the superior acting on behalf of the employer shall make a value-based assessment concerning the question of whether and to what extent the civil servant meets the professional and personal requirements of the position and career path, which requirements must similarly be defined by the employer. In the case of such acts of acquiring knowledge by assessment reserved for the employer, the employer is provided with an authorisation to make use of a margin of appreciation inherent in the legal provision (established jurisprudence, see Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 16 December 2015 - 2 BvR 1958/13 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 141, 56 para. 56 with further references; BVerwG, judgments of 26 June 1980 - 2 C 8.78 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 60, 245 <246> and of 17 September 2015 - 2 C 27.14 - BVerwGE 153, 48 para. 9).

11 1. Even though the two promotion positions in pay grade A 12 of the Civil Servants' Remuneration Code of the Federal State of Rhineland-Palatinate (LBesO RP, Landesbesoldungsordnung), which were advertised by the defendant, have been filled in the meantime by the claimant's competing applicants, the claimant cannot be deprived of her recognised legal interest in bringing an action to annul the occasion-related performance appraisal and to order the defendant to prepare a new performance appraisal taking into consideration the legal opinion of the court. This is because the success of her action can actually improve the legal position of the claimant.

12 Past performance appraisals of a civil servant may be relevant for subsequent decisions concerning deployment and selection. It is true that what is decisive for selection decisions are, first and foremost, current appraisals that assess the current state of the criteria that are relevant under article 33 (2) GG concerning the individual civil servant. However, older performance appraisals may also be considered as additional evidence which may be used, in particular, to assess positive or negative development trends of the civil servant with regard to character traits, knowledge, skills and performance (BVerwG, judgment (...) of 2 March 2017 - 2 C 21.16 - BVerwGE 157, 366 para. 13).

13 What is more, in the case of the claimant the defendant does not prepare any routine performance appraisals and the occasion-related appraisal which is the subject matter of the dispute is the last performance appraisal that is based on the actual professional performance of the claimant. Because later, from July 2017 to May 2021, the defendant was fully released from her duties due to her membership in the staff council of the defendant.

14 2. It is true that the defendant has in the run-up to the two appraisal interviews with the claimant on 10 and 30 November 2016 breached its legal obligation under section 69 (8) LPersVG RP to inform the claimant of her right to involve a member of the staff council in the appraisal interview. An appraisal interview within the meaning of this provision is only an interview in the course of which the performance appraisal that has already been prepared is discussed with the civil servant (a). However, the Senate can leave the legal consequences of the defendant's breach of its legal obligation undetermined (b). Because the claimant cannot base her action against the occasion-related performance appraisal on this breach of the law. The claimant cannot invoke her right under section 69 (8) LPersVG RP since she had to be aware of the possibility of involving a member of the staff council in the interview because she had been a member of the staff council of the defendant since December 2012 (c).

15 a) An appraisal interview within the meaning of section 69 (3) sixth sentence and section 69 (8) LPersVG RP is an interview on the occasion of the discussion of the performance appraisal that has already been prepared (and already handed out in this case) but not an interview between the civil servant who is to be appraised and the appraiser in the run-up to the preparation of the performance appraisal.

16 This follows from the systematic connection of section 69 (3) fifth and sixth sentence LPersVG RP. The fifth sentence, which states that the staff representative body must be informed of a performance appraisal at the request of an employee, requires the existence of the performance appraisal. Only subsequent to this, in section 69 (3) sixth sentence, does the law provide for the right of the civil servant to have a member of the staff council participate in the appraisal interview. If the legislature had also intended a member of the staff council to participate as early as the stage prior to preparation of the performance appraisal, it would have placed the provision regulating the right of the civil servant to be appraised to have a member of the staff council participate in the interview in front of the fifth sentence.

17 The purpose of the participation of the member of the staff council in an interview also supports this interpretation. Participation of a member of the staff council in an interview does not win the staff council any influence on the content of the performance appraisal (see BVerwG, decision of 17 February 2020 - 2 VR 2.20 - BVerwGE 167, 358 para. 28). The purpose of the participation is to assist the appraised civil servant in verifying the lawfulness of the performance appraisal that is disclosed to him or her and to initiate any legal remedies where the employer does not dispel legitimate concerns of the civil servant. The idea is to provide psychological support to the civil servant concerned in order to reduce the pressure on the civil servant during the appraisal interview.

18 b) The case in dispute does not require any decision concerning the view of the Court of Appeal that section 69 (8) LPersVG RP was a mere organisational provision and that non-compliance with this provision would not lead to the performance appraisal being unlawful.

19 It is true that the consideration of the Court of Appeal that the procedural deficiency of omitting the notification under section 69 (8) LPersVG RP does not affect the content of the performance appraisal since it is already prepared at the time of the appraisal interview. The reference to the legislative materials to the Act adding subsection 8 to it is also irrelevant. The explanatory memorandum (Landtag printed paper 15/4466 p. 17 et seq. on no. 25) refers to section 78 (2) second sentence and section 79 (2) second sentence LPersVG RP. Concerning the respective notification obligations regulated there, it is accepted that a breach of these obligations by the employer generally leads to the measure being unlawful. However, sections 78 et seq. LPersVG RP are assigned to the area of co-determination (Mitbestimmung) and participation (Mitwirkung) of the staff council. In contrast, section 69 LPersVG RP states the areas where the staff council is limited to involvement (Beteiligung). Section 74 (1) LPersVG RP does not apply to the area of section 69 LPersVG RP.

20 At the same time, it seems to be problematic if the interpretation of a legal provision that establishes obligations leads to a breach of such an obligation being without any consequences. Because section 69 (8) and (3) sixth sentence LPersVG RP is, as described, a legal provision that is intended to protect the civil servant who is to be appraised. Courts are required to interpret provisions in such a way that the legislature's decision is given the importance attached to it (see BVerwG, judgment of 13 October 2020 - 2 C 11.20 - (...) para. 36), in the present case the protection of the civil servant in the stressful situation of an interview concerning the appraisal (...).

21 Within the framework of the new regulation, which is required in any case (see 3.), the legislature of the federal state of Rhineland-Palatinate has the opportunity of clarifying the legal consequences of a breach of section 69 (8) LPersVG RP by an employer.

22 c) Since the claimant, as a member of the staff council, should have been aware of the provision in section 69 (8) LPersVG RP, she cannot base her action on the violation of this provision even if the breach of the law by the employer should lead to the respective performance appraisal being unlawful.

23 Section 69 LPersVG RP lists the general tasks of the staff representative body and its right to information. These general tasks of the staff representative body must be known to a member of the staff council. Because the staff representative body has to ensure, in accordance with section 69 (1) no. 2 LPersVG RP, that the laws and ordinances that are in place for the benefit of the employees are complied with - this also includes the right under section 69 (8) LPersVG RP. At the time of the first appraisal interview conducted on 10 November 2016, the claimant had been a member of the staff council for almost four years. In addition, the claimant asserted in her application for the position of Head of the Personnel Department that as a longstanding chairperson of the staff council she had extensive practical experience and knowledge of labour law in the field of personnel and that she had participated in numerous training events since she was elected as chairperson of the staff council. Finally, account has to be taken of the fact that the claimant broke of the first appraisal interview on the grounds that she wished to obtain external legal advice prior to such an interview.

24 3. The normative specifications in the federal state of Rhineland-Palatinate for the preparation of the contested occasion-related appraisal by the defendant were insufficient. However, this does not lead to the occasion-related appraisal being annulled since this situation has to be tolerated for a transitional period.

25 a) According to the distribution of legislative powers (article 74 (1) no. 27 GG), the Act on the Status of Civil Servants (Beamtenstatusgesetz) does not contain any specifications on how to prepare performance appraisals. It is quite common for federal state legislation to set out the legal basis for the preparation of performance appraisals for civil servants at municipal and district level as well. This is the case for instance for section 49 Act on Career Paths of the Federal State of Thuringia (ThürLaufbG, Thüringer Laufbahngesetz) of 12 August 2014 (GVBl. p. 472), for section 92 of the Act on Civil Servants of the Federal State of North Rhine-Westphalia (LBG NRW, Landesbeamtengesetz) of 14 June 2016 (Law and Ordinance Gazette of the Federal State of North Rhine-Westphalia (GV. NRW, Gesetz- und Verordnungsblatt für das Land Nordrhein-Westfalen) 2016, 310) and for articles 54 et seqq. of the Act on Performance Career Paths of the Federal State of Bavaria (BayLlbG, Leistungslaufbahngesetz) of 5 August 2010 (GVBl. p. 410, 571) applicable in Bavaria.

26 In contrast, the Act on Civil Servants of the Federal State of Rhineland-Palatinate (LBG RP, Landesbeamtengesetz) of 20 October 2010 (GVBl. p. 319), which also applies to the civil servants of the defendant city, does not contain any provisions concerning the content of performance appraisals. Section 25 (1) no. 8 of the Act merely authorises the federal state government to set out the general principles for performance appraisals in a career path ordinance.

27 However, even the Ordinance on Career Paths of the Federal State of Rhineland-Palatinate (LbVO RP, Laufbahnverordnung) of the Federal State Government of 19 November 2010 (GVBl. p. 444) enacted based on section 25 LBG RP does not contain any rules concerning the content. Section 15 (1) first sentence LbVO RP merely specifies, as does article 33 (2) GG, that aptitude, qualifications and professional performance of the civil servants must be assessed. The second sentence authorises the supreme service authority to set out the details. In accordance with the general understanding, this refers to appraisal guidelines enacted by the respective supreme service authority by way of an administrative regulation.

28 The lack of normative specifications leads to the conditions for the preparation of performance appraisals being determined autonomously by the respective ministries for the civil servants and judges who are active in the respective area of competence. An inspection of the appraisal guidelines that exist in Rhineland-Palatinate proves that the executive develop very different models for the preparation of performance appraisals and impose these on the subordinate area. In some areas, only occasion-related appraisals are permitted under the guidelines (for example, Administrative Regulation of the Ministry for Internal Affairs and Sport of 15 October 2005 for Appraisals in the Area of the Police of the Federal State of Rhineland-Palatinate, Ministerial Gazette of the Federal State Government of Rhineland-Palatinate (MinBl., Ministerialblatt der Landesregierung Rheinland-Pfalz) 2005 p. 314), whereas for other administrative areas the respective administrative regulation prescribes routine performance appraisals on certain reference dates (for example, Administrative Regulation of the Ministry of Finance concerning the Appraisal of Civil Servants in Tax Administration of 20 February 2019, MinBl. 2019 p. 56 and Administrative Regulation of the Ministry of Justice of 15 August 2016, (Judicial Gazette Rhineland-Palatinate of the Ministry of Justice (RP Jbl., Justizblatt Rheinland-Pfalz des Ministeriums der Justiz), p. 167)). Also, the appraisal guidelines contain strongly diverging rules concerning the question of how the overall result is reached, which is a particularly important question for the function of the performance appraisal. In the appeal judgment underlying these proceedings ((...) para. 51 et seqq.), the Higher Administrative Court found it to be lawful that the defendant did not reach an overall result from the appraisal of the personal performance and of the qualifications, since the appraisal form used by the defendant did not provide for such a step. For the application of the administrative regulation that previously existed in the area of tax administration of the federal state of Rhineland-Palatinate, which in contrast provides for the necessity to reach an overall result, the Court of Appeal considered this approach to be required based on the guidelines (OVG Koblenz, judgment of 24 September 2018 - 2 A 10400/18 - (...) para. 37 et seqq.).

29 The problem associated with this can be illustrated in the creation of the occasion-related performance appraisal that is the subject matter of the dispute. It not only lacked specifications from the legislature at the level of the Act and the Ordinance pursuant to a legal basis that meets the requirements of article 110 (1) second sentence of the Constitution for the Federal State of Rhineland-Palatinate (LVerf RP, Verfassung für Rheinland-Pfalz). There has also not been an administrative regulation in the area of the defendant that provides rules for the preparation of performance appraisals for civil servants. The defendant, which only employs a few civil servants, does not assess these on a regular basis. The two job advertisements of March 2015 are the only ones in a period of more than ten years for which the defendant prepared appraisals. The defendant admitted in the appeal proceedings on points of law that for the occasion-related performance appraisals it used a performance appraisal form which is specified for the performance appraisal of police officers of the federal state of Rhineland-Palatinate in the Administrative Regulation of the Ministry of the Interior of 15 October 2005. The defendant also referred in the course of the appeal proceedings on points of law to the fact that due to the small size of their respective body of personnel the majority of municipalities of the federal state of Rhineland-Palatinate also do not have their own appraisal guidelines which could be used as a guide for preparing a performance appraisal for its civil servants.

30 b) The broad range of appraisal guidelines in Rhineland-Palatinate directly affects the possibility of comparing performance appraisals of civil servants in the area of their employer (for example, the federal state of Rhineland-Palatinate) and thereby their function within the framework of a selection decision based on article 33 (2) GG. Performance appraisals become essentially meaningful only when they are compared with assessments in the performance appraisals of other civil servants. It follows that the appraisal standards must be the same and must be applied in the same manner (BVerfG, chamber decision of 9 August 2016 - 2 BvR 1287/16 - (...) para. 84 and BVerwG, judgment of 27 November 2014 - 2 A 10.13 - BVerwGE 150, 359 para. 21). According to this, the employer is required to establish similar appraisal standards and to ensure that they are applied uniformly in its organisational area (BVerfG, chamber decision of 17 February 2017 - 2 BvR 1558/16 - (...) para. 11). If performance appraisals are not comparable in the sense that they allow a legally proper comparison of applicants, the employer is required to make them "compatible" (BVerfG, chamber decision of 9 August 2016 - 2 BvR 1287/16 - (...) para. 85).

31 c) For putting into effect the right resulting from article 33 (2) GG that is equivalent to a basic right, performance appraisals are crucially important. Performance appraisals are the decisive personnel management tool - both in legal and in factual terms - that is used to decide on the civil servants' right equivalent to a basic right to "adequate professional advancement" (see BVerfG, decision of 16 December 2015 - 2 BvR 1958/13 - BVerfGE 141, 56 para. 31, 36; BVerwG, decision of 17 March 2021 - 2 B 3.21 - para. 21 (...)). It is true that article 33 (2) GG does not exclude the use of other tools to determine the best suited applicant within the meaning of article 33 (2) GG (BVerfG, chamber decision of 11 May 2011 - 2 BvR 764/11 - (...) para. 12; see, for example, article 16 (1) fourth sentence BayLlbG). However, in practice, the selection decision, i.e. the comparison of applicants in the course of the selection procedure, is mainly based on performance appraisals (see BVerfG, decisions of 20 April 2004 - 1 BvR 838/01 et al. - BVerfGE 110, 304 <332> and of 16 December 2015 - 2 BvR 1958/13 - BVerfGE 141, 56 para. 58). In order for performance appraisals to be a suitable basis for comparison their content has to be meaningful. They have to convey a viable basis for the selection decision (BVerfG, chamber decisions of 29 July 2003 - 2 BvR 311/03 - Chamber Rulings of the Federal Constitutional Court (BVerfGK, Kammerentscheidungen des Bundesverfassungsgerichts) 1, 292 <296 et seq.> and of 7 March 2013 - 2 BvR 2582/12 - (...) para. 21).

32 In light of this importance of performance appraisals for the selection decision which must be based solely on article 33 (2) GG, the specifications for the preparation of performance appraisals cannot be left to administrative regulations alone. The basic specifications for their preparation must be regulated in a formal law. The principle of the rule of law as well as the requirement of democracy oblige the legislature to essentially regulate the provisions that are relevant in order to put the basic right - or, as is the case here, a right that is equivalent to a basic right - into effect itself and not to leave these to the executive to do and decide on. Essential in this sense are all provisions that are of material importance for the putting into effect of this right and affect this process with particular intensity (BVerfG, judgment of 14 July 1998 - 1 BvR 1640/97 - BVerfGE 98, 218 <251> and decision of 21 April 2015 - 2 BvR 1322/12 et al. - BVerfGE 139, 19 para. 52). Furthermore, the regulatory form of an act is typical and appropriate for the civil servant status; the material contents of the law on civil servants therefore have to be regulated by an act (BVerfG, decisions of 22 March 1990 - 2 BvL 1/86 - BVerfGE 81, 363 <386> and of 21 April 2015 - 2 BvR 1322/12 et al. - BVerfGE 139, 19 para. 57).

33 The Senate still maintains that the essential matters doctrine (Wesentlichkeitsgrundsatz) applies to the preparation of performance appraisals for civil servants due to their importance for putting into effect the civil servants' right under article 33 (2) GG (see BVerwG, judgment of 17 September 2020 - 2 C 2.20 - BVerwGE 169, 254 para. 16 et seqq. and decision of 21 December 2020 - 2 B 63.20 - (...) para. 23) even in view of the criticism raised in this regard (OVG Magdeburg, decision of 19 January 2021 - 1 M 143/20 - para. 12 et seqq.; Kassel Higher Administrative Court (VGH, Verwaltungsgerichtshof), decision of 25 February 2021 - 1 B 376/20 - para. 43 et seqq. and OVG Berlin-Brandenburg, decision of 10 May 2021 - 4 S 15/21 - para. 6 et seqq.). Regulations concerning the design of a right equivalent to a basic right resulting from article 33 (2) GG are also subject to the general principles in the case of civil servants. One of the views put forward opposing the requirement of a decision by the legislature and the issuer of ordinances, to the effect that the special obligations associated with their service and loyalty relationship under public law are justification for lowering the generally applicable legal requirements in the case of civil servants, with the result that the specifications for preparing performance appraisals as the main tool for exercising their right under article 33 (2) GG might be derived from mere administrative regulations, is obsolete. The assessment as to which legal requirements apply for regulations concerning the civil servant status with regard to the question of essential matters and consequently the question of a sufficient (parliamentary) legal basis, is different now from the situation just a few years ago since the perspective of constitutional law has changed in the meantime (BVerfG, decision of 21 April 2015 - 2 BvR 1322/12 et al. - BVerfGE 139, 19 para. 57).

34 What is essential for a performance appraisal in this sense are the decision concerning the appraisal system (routine performance appraisals or mere occasion-related performance appraisals, the latter, where appropriate, as an exception to the former) and the specification that the final overall result be reached that takes all individual elements into account (BVerwG, judgment of 17 September 2020 - 2 C 2.20 - BVerwGE 169, 254 para. 16). This final overall result is the starting point for a comparison of the applicants in accordance with article 33 (2) GG (BVerfG, decision of 16 December 2015 - 2 BvR 1958/13 - BVerfGE 141, 56 para. 58 with further references). The very range of the specifications for reaching an overall result that are regulated in the numerous, strongly diverging appraisal guidelines of the supreme service authorities of the federal state of Rhineland-Palatinate in this regard (see 4. below) is proof of the need for a decision of the legislature, who in turn is bound by article 33 (2) GG.

35 The legislature is, of course, not prevented from regulating directly in an act more than the essential aspects stated (see, for example, articles 54 et seqq. BayLlbG). The legislature may also determine the regulatory content of the three criteria contained in article 33 (2) GG, which are not possible to clearly differentiate (see section 2 (2) to (4) ThürLaufbG). However, the legislature is not forced to make such a far-reaching regulation. Because there is no comprehensive requirement of a parliamentary decision (Parlamentsvorbehalt) with regard to the preparation of performance appraisals. The legislature may authorise the executive to regulate additional specifications by means of an ordinance. In this context, article 80 (1) second sentence GG and the corresponding provisions of the constitutions of the individual federal states (here: article 110 (1) second sentence LVerf RP), according to which the content, purpose and extent of the authorisation to issue an ordinance must be defined in the act, have, as an expression of the general requirement of a precise legal enactment (Vorbehalt des Gesetzes), the function of verifiably tracing the stipulation of the conditions for the exercise by the executive of the right equivalent to a basic right resulting from article 33 (2) GG back to a parliamentary expression of intent. The legal authorisation to issue an ordinance has to be defined in such a way that it is predictable in which cases and with what propensity it will be used and what the content of the ordinances issued based on the authorisation could be (BVerfG, decision of 21 April 2015 - 2 BvR 1322/12 et al. - BVerfGE 139, 19 para. 55 with further references). In contrast, making only a few decisions in the act itself and leaving the remaining provisions for preparing performance appraisals to the executive in the form of mere administrative regulations would be incompatible with the general requirement of a precise legal enactment. Requiring a sufficiently precise legal authorisation for issuing an ordinance ensures that the executive can only become active in line with the parliamentary authorisation in an area that is of major importance for the exercise of the right that is equivalent to a basic right.

36 If based on a provision that meets the requirements of the principle of precision (Bestimmtheitsgebot) the legislature grants an authorisation to regulate principles for performance appraisals or for the appraisal procedure by means of an ordinance, the regulations must also be made in the form of an ordinance. General delegation of the authorisation in the ordinance to the level of a simple administrative regulation, as is the case in section 15 (1) second sentence LbVO RP for instance, is excluded.

37 Even when complying with the requirements resulting from the general requirement of a precise legal enactment, as presented above, the legislature still has enough scope (for action) concerning the way it will meet these specifications: For instance, regulating the legal specifications for the preparation of performance appraisals following the example of articles 54 et seqq. BayLlbG, which the Senate presents in its decision of 21 December 2020 - 2 B 63.20 - ((...) para. 23) as a positive example as opposed to the deficient provisions of the federal state law of Brandenburg, is not compulsory. It must also be noted that the said legal provisions in Bavaria provide for reservations or limitations in numerous places (for example, article 56 (3) second sentence, article 58 (2) second sentence and article 58 (6) second and third sentence, article 59 (1) second sentence as well as article 60 (1) fifth sentence 5 BayLlbG). As already mentioned, the legislature also complies with the said requirements if it regulates the essential aspects in the act and leaves the other specifications concerning the preparation of performance appraisals to an ordinance based on a sufficiently precise authorisation (see, for example, section 49 ThürLaufbG). This concerns such matters as the interval between routine performance appraisals, the content of the individual elements of aptitude, qualifications and professional performance that are to be assessed, the determination of the positions of the persons who are obliged to participate in preparing the performance appraisal, the appraisal standard, and the specifications for awarding the highest and second highest grade (benchmarks). The fact that the current situation concerning laws and ordinances in North Rhine-Westphalia (section 92 (1) LBG NRW, section 8 of the Ordinance on Career Paths of the Federal State of North Rhine-Westphalia (LVO NRW, Laufbahnverordnung)) fulfils the requirements described here, has already been confirmed by the Senate (BVerwG, judgment of 17 September 2020 - 2 C 2.20 - BVerwGE 169, 254 para. 16 et seq.). Finally, the authorisation to issue ordinances in section 21 (2) of the Act on Federal Civil Servants (BBG, Bundesbeamtengesetz) as amended by the Act on the Regulation of the outer Appearance of Civil Servants and on the Amendment of other Regulations on Service Law (Gesetz zur Regelung des Erscheinungsbildes von Beamtinnen und Beamten sowie zur Änderung weiterer dienstrechtlicher Vorschriften) of 28 June 2021 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 2250) is a noteworthy example. The federal legislature has by the said Amending Act defined in more detail the bases for authorisation in the Act on Federal Civil Servants for the enactment of ordinances based on this Act, in particular concerning the preparation of performance appraisals, in order to adapt these to the specifications resulting from the requirement of a precise legal enactment in article 80 (1) second sentence GG (see explicitly Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 19/26839 p. 2 et seq., 33 et seq., 39 et seq.; BT-Drs. 19/28836 p. 2 et seq.).

38 For purposes of clarification, the Senate refers to the fact that the legislature is not compelled to allocate the individual elements that are to be assessed in the performance appraisal specifically to one of the three criteria contained in article 33 (2) GG. There only needs to be a guarantee that all individual elements that the legislature considers to be relevant in terms of article 33 (2) GG are taken into account in the final overall result.

39 Within the framework defined by the legislature, namely within the scope of the appraisal system defined by it, the employer is entitled to impose different types of appraisal procedures for different groups of civil servants (for example, for police officers), in particular concerning the appraisal periods and the positions of the persons involved.

40 d) The legal norms that were applicable in Rhineland-Palatinate at the time the occasion-related performance appraisal was prepared and that are still applicable now are insufficient. However, the existing legal norms and the administrative regulations based on these may still be applied for a transitional period in order to avoid a situation which is even further removed from the constitutional order than the previous situation (BVerfG, decision of 20 March 2013 - 2 BvF 1/05 - BVerfGE 133, 241 para. 51 with further references; BVerwG, judgments of 1 June 1995 - 2 C 16.94 - BVerwGE 98, 324 <327 et seq.>, of 17 June 2004 - 2 C 50.02 - BVerwGE 121, 103 <111> and of 30 August 2012 - 2 C 23.10 - BVerwGE 144, 93 para. 16 as well as decision of 31 January 2019 - 1 WB 28.17 - BVerwGE 164, 304 para. 35). Without the continued temporary application of the administrative regulations enacted based on the provisions of the federal state, which the defendant also used as a guideline when preparing the occasion-related performance appraisal, the selection decisions which are important for the proper functioning of public administration could not be made.

41 4. The occasion-related performance appraisal of the claimant is unlawful since the defendant did not reach a final overall result in the course of the appraisal procedure. This overall result needs to cover all individual elements which are described in the three criteria contained in article 33 (2) GG and have been appraised by the employer.

42 a) The comparison of the applicants as part of a selection decision is first and foremost based on performance appraisals. The appraisals have to be used in their entirety insofar as they are meaningful. What is decisive above all is the final overall result of the performance appraisal. This must be reached by evaluating, weighting and weighing the individual performance-related aspects (BVerfG, decision of 16 December 2015 - 2 BvR 1958/13 - BVerfGE 141, 56 para. 58 and chamber decision of 4 October 2012 - 2 BvR 1120/12 - (...) para. 12; BVerwG, decision of 27 September 2011 - 2 VR 3.11 - (...) para. 23). For a performance appraisal to fulfil the function assigned to it by article 33 (2) GG in the area of selection decisions, it must contain a final overall result.

43 Article 33 (2) GG mentions three criteria, the content of which the legislature is entitled to define. The legislature, and, even more so, the executive - at the level of simple administrative regulations - are, however, not entitled to leave any of these three criteria out of account when the final overall result is reached. Accordingly, section 49 (3) first sentence of the Federal Ordinance on Career Paths (BLV, Bundeslaufbahnverordnung), for example, rightly prescribes to reach a final - comprehensive - overall result (...).

44 b) In its judgment of 19 March 2015 - 2 C 12.14 - (BVerwGE 151, 333 para. 44), the Senate states that the qualification elements listed there (para. 42 of the judgment), referred to as "assessment of potential" in the appraisal guidelines there, could not be subject to a general and unrelated overall result or even grading. The Senate abandons this jurisprudence.

45 In article 33 (2), the Basic Law requires that all individual elements of the three criteria must be taken into account in reaching the final overall result, i.e. including the individual elements of the criteria of qualifications and aptitude. Qualification elements defined by the employer, such as the ability to work in a team or to handle conflicts, writing skills, decision-making ability, or physical fitness (see para. 42 of the judgment of 19 March 2015), may also - in the same manner as the related individual elements of professional performance - be assessed in relation to the office conferred according to the status (Statusamt) on the basis of the individual performance and conduct of the civil servant shown with regard to the respective post during the assessment period. These individual assessments may then, if this is specified, be combined in an overall grade relating to qualifications.

46 Often, appraisers are obliged even now under the currently applicable provisions to reach a summarising overall result taking all circumstances into account (...). This applies to section 92 (1) third sentence LBG NRW, article 58 (3) and article 59 BayLlbG, section 49 (2) ThürLaufbG and section 11 of the Appraisal Ordinance of the Federal State of Thuringia (ThürBeurtVO, Thüringer Beurteilungsverordnung) of 18 February 2020 (GVBl. 2020, 64), to name just a few examples. The new Appraisal Guidelines of the Ministry of Finance of the Federal State of Rhineland-Palatinate (Beurteilungsrichtlinie des Finanzministeriums Rheinland-Pfalz) of 20 February 2019 (MinBl. 2019, 56) also provides for performance, aptitude, and qualification elements to be taken into account in the final overall result (similar to the Appraisal Guidelines for Correctional Services in the Federal State of North Rhine-Westphalia (Beurteilungsrichtlinie für den Justizvollzugsdienst in Nordrhein-Westfalen) in the version of 6 April 2016, Justice Ministerial Gazette for the Federal State of North Rhine-Westphalia (JMBl. NRW, Justizministerialblatt für das Land Nordrhein-Westfalen) p. 130, on this issue OVG Münster, decision of 11 December 2018 - 6 B 1386/18 -).

47 c) article 33 (2) GG does not prescribe how the summarising overall result is to be reached as a result of comprehensively evaluating, weighting and weighing the individual elements and the method is therefore left for the legislature to design; the legislature is merely not allowed to leave any of the three criteria contained in article 33 (2) GG unaccounted for when the overall result is reached.

48 This does not mean that performance appraisals and appraisal guidelines upon which they are based, that at present, for instance according to the way the relevant form is structured, at first sight do not contain a section headed "qualifications" or "aptitude", would be deficient for that reason. In many performance appraisals and appraisal guidelines individual elements can be found that refer to features that cannot be allocated clearly to just one of the three criteria contained in article 33 (2) GG but can often be allocated to several of them. An individual element may, for instance, first and foremost describe an aspect of "professional performance" within the meaning of article 33 (2) GG (and may even be listed there), but it may also address a fundamental "character trait" that can also be allocated to the criterion of "aptitude" or may be allocated to the criterion of "qualifications" as a "skill" or "capability", if one bases section 2 (2) to 4 BLV on the definition of the terms of these criteria contained in article 33 (2) GG. What is decisive here is what substantive content the individual element of the respective performance appraisal has.

49 d) The occasion-related performance appraisal that is the subject matter of this dispute does not fulfil the requirements presented above concerning the final overall result. Even though the defendant made a detailed assessment of the general qualification elements and special qualification elements for superiors based on a five-level grading scale in line with the appraisal form of the Appraisal Guidelines of the Police of the Federal State of Rhineland-Palatinate (Beurteilungsrichtlinie der Polizei des Landes Rheinland-Pfalz) of 15 October 2005, the defendant failed to reach a summarising overall result based on the overall appraisal of the performance with the overall grade "B" of the five-level grading scale and of the appraisal of the qualification elements. This must be reserved to a new performance appraisal of the claimant. The preparation of a proper performance appraisal for the claimant is intrinsically the task of the defendant as employer and not that of the Court.