Definition and significance of the legal traineeship (Referendariat) in Germany
The Referendariat in Germany refers to the legally regulated preparatory service through which graduates of university studies in certain professions receive the necessary practical training and qualification for future work in public service or regulated professions. It represents a phase between the successful completion of studies and the subsequent independent practice of the profession. Depending on the occupational field—for example, in school service or in the areas of justice and administration—the Referendariat is a mandatory requirement for admission to the state examination and entry into the respective profession.
Legal Foundations
General Statutory Provisions
The structure and statutory anchoring of the Referendariat are based on federal and state-specific laws and regulations. Fundamental standards for the preparatory service and its completion can be found both in the Basic Law of the Federal Republic of Germany and in the respective training laws of the federal states (e.g. teacher training laws, legal training laws, and career path laws for administrative officials).
Federal and State Jurisdictions
Germany operates under a federal structure, so the legal provisions regarding the organization, duration, content of training, and examination procedures of the Referendariat can vary significantly depending on the federal state. Access to regulated professions is regularly subject to additional norms in special legal provisions, for example:
- Legal Training Laws of the States (for legal preparatory service)
- Teacher Training Laws and Teacher Training Regulations
- Career Path Regulations of the Public Service (e.g., for intermediate and higher administrative careers)
- Regulations for Technical Preparatory Service (e.g., for civil engineering)
Uniform framework conditions are set by the German Judiciary Act (DRiG) for legal education, while for teaching professions the respective state law is decisive.
Legal Status of Trainee Lawyers and Trainee Teachers
During the preparatory service, trainees are in a public-law training relationship. They are usually appointed as civil servants on revocation. The legal basis for this derives from the civil servant laws of the federal government or the states as well as from the relevant training or career ordinances. For the school service, the Civil Servant Status Act (BeamtStG), for the legal preparatory service additionally the DRiG is relevant.
Remuneration and Social Insurance
In the course of their work, trainees receive a legally stipulated maintenance allowance or, less commonly, trainee remuneration. The amount is determined by statutory pay scales, which are set by the budgetary law of the relevant regional authority. Health and nursing care insurance is mandatory; depending on civil servant status, an allowance or a separate insurance obligation may apply.
Process and Content of the Referendariat
Admission Requirements
Admission to the Referendariat generally requires successful completion of a relevant course of study, for example, the First State Examination in law or a Master’s or State Examination for teacher training. The application process and allocation of traineeship positions are organized by the competent state authorities or regional institutes.
Phases of Training
The Referendariat is divided into specified training sections, combining theory and practice through various rotations and stations. These include, among others:
- Legal Preparatory Service: Placements at courts, public prosecutor’s offices, administrative and civil authorities, law firms, or companies
- Teacher Training Traineeship: Teaching internships, accompanying seminars, independent teaching
- Administrative Traineeship: Practical training in various authorities, also at the municipal and state level
Depending on the federal state, the total duration of the Referendariat typically ranges between 18 and 24 months.
Examinations and Proof of Performance
During the Referendariat, trainees are regularly required to provide evidence of performance, evaluations, or written exams. Formal completion is marked by a state examination (e.g., Second State Examination for teachers and in the legal field), which may include both written and oral examination components. The examination requirements, content, and procedures are subject to state law regulations and specified by examination ordinances.
State Examination Offices
Special examination offices or state authorities are generally responsible for the administration and recognition of training and examination achievements. They are accountable for the organization, implementation, and monitoring of compliance with legal provisions in connection with the Referendariat.
Legal Protection and Consequences of the Referendariat
Service and Disciplinary Law
During their public-law training relationship, trainees are subject to the general service obligations of the respective civil service law, including confidentiality, impartiality, service supervision, and disciplinary rules. Violations of duty can result in disciplinary measures ranging from admonishments through disciplinary action to revocation of appointment.
Options for Legal Protection
Trainee teachers and lawyers have the right of recourse to administrative courts if they feel their rights have been violated. This particularly concerns examination decisions, official assessments, or procedural questions related to the conduct of the Referendariat. In examination law, the special procedural law applies regarding the reviewability of examination grades and the right to inspect records.
Special Features and Developments
Special Legal Situations
- Maternity protection and family times: The relevant statutory provisions of the Maternity Protection Act, the Federal Parental Allowance and Parental Leave Act, and the law governing the rights of persons with severe disabilities apply to female trainees.
- Duration and Interruption: The Referendariat may be interrupted and extended upon application for good cause (illness, family time, stays abroad), whereby legal documentation must be provided and regulatory requirements must be observed.
Reforms and Adjustments
The legislator regularly adapts the legal framework to current needs and societal developments. In recent years, particular focus has been placed on digitalization, the flexibilization of training models, and dealing with pandemic-related exceptional situations.
Literature and Further Legal Provisions
- German Judiciary Act (DRiG)
- Civil Servant Status Act (BeamtStG)
- State Civil Servant Laws and Career Regulations
- Teacher Training Acts and Teacher Examination Regulations of the Federal States
- Training and Examination Regulations of the Respective Federal States
Note: This article provides a comprehensive and legally sound overview of the term “Referendariat” in Germany and addresses all relevant legal aspects in light of the current legal situation. For specific legal applications and the current legal status, it is recommended to consult the relevant provisions and official legal sources of the respective federal state.
Frequently Asked Questions
Do I have to be insured for health during the Referendariat, and who bears the costs?
During the Referendariat in Germany, there is generally an obligation to have statutory health insurance pursuant to § 5 section 1 no. 10 SGB V. Trainees are usually enrolled as compulsory members in the statutory health insurance. However, they may apply to be exempted from this obligation if they instead opt for private health insurance, which is often made possible for civil service candidates, for example in the legal or teacher traineeship. The precise requirements for insurance obligation depend on the status in the public-law preparatory service (e.g., civil servant on revocation or employee). The cost of health insurance is generally borne by the trainee, but, depending on the federal state and status, there is an entitlement to allowances, whereby part of the medical costs is reimbursed by the employer. The remaining costs are typically covered by supplementary private health insurance. It is advisable to clarify the future modalities with the health insurance provider before starting the Referendariat and to submit the relevant evidence to the employer in a timely fashion.
Can the Referendariat be interrupted or extended due to illness or maternity protection?
The legal situation provides that the Referendariat may be interrupted and accordingly extended in cases of prolonged illness (§ 22 JAO or corresponding state regulations) and when claiming maternity or parental leave. If the maximum allowable period of absence (usually between two and five months, depending on the state and training regulations) is exceeded, the relevant part of the traineeship must be made up. The regulations for maternity protection arise from the Maternity Protection Act, whereby the employer is obliged to implement employment prohibitions and ensure appropriate protection. An extension of the Referendariat is therefore legally possible and is usually recognized without disadvantages for future examination progress, provided statutory requirements are met and the relevant evidence (medical certificate, birth certificate etc.) is provided.
Is there an entitlement to vacation leave during the Referendariat?
Trainees are entitled to paid vacation in accordance with the relevant civil service regulations or, depending on status, according to the applicable collective agreements. The duration is determined by the provisions of the respective federal states but is usually about 29 to 30 days per calendar year (§ 5 AZV or analogous state legal provisions). Leave planning must be compatible with training and examination periods and is usually coordinated with the respective trainer and training institution. Special leave for family or particular occasions is governed by the relevant legal provisions (e.g., Special Leave Ordinance, SUrlV).
What legal options do I have if I fail an examination during the Referendariat?
If the second state examination is not passed, trainees have legal options for review and objection. According to the administrative procedure laws of the states and the corresponding examination regulations, candidates may file an objection against the assessment in the proper form and within the deadline and request a review of the examination decision (remonstration). If the objection is denied, legal action is possible, typically through a lawsuit before the administrative court. In addition, depending on state law, it is possible to repeat the examination once; in exceptional cases, a further repeat examination may be permitted, especially in cases of hardship (§ 17 ff. JAG/JAO).
What data protection requirements apply to trainees concerning training records and examination files?
During the preparatory service, trainees are subject to the data protection requirements according to the GDPR and the state data protection laws. This applies to the collection, processing, and storage of personal data in training and examination files. Training institutions, courts, or schools are only allowed to collect and process personal data for training and examination purposes if there is a corresponding legal authorization or consent. The trainee has the right to information about the data stored about them (Art. 15 GDPR) as well as access to the training and examination files under the conditions of the respective examination and data protection regulations. The retention and deletion of records are based on the applicable archiving and deletion periods set by the training authorities.
Am I obliged to maintain confidentiality as a trainee, and what are the legal consequences for violations?
Trainees are obliged to maintain confidentiality already during the preparatory service. This confidentiality obligation primarily arises from the respective state civil service laws (§ 37 BeamtStG) and is expressly regulated in legal education and teacher traineeships. Confidential information from court proceedings, law firms, authorities, or teaching contexts may not be forwarded to third parties. Violations can have serious legal consequences: disciplinary measures up to removal from the traineeship as well as, if applicable, criminal consequences for breaches of official secrecy (§ 353b StGB) or other protective provisions (especially for sensitive personal data) are possible. The confidentiality obligation also applies beyond the end of the traineeship.
What is the legal situation regarding secondary employment during the Referendariat?
Secondary employment during the Referendariat generally requires approval. The legal basis is provided by civil service law (§ 99 BBG, §§ 40 ff. BeamtStG), the respective regulations of the federal states, as well as the provisions specifically applicable to the Referendariat. In particular, secondary employment must not hinder the fulfillment of official duties and must not give rise to conflicts of interest or loyalty. The application for approval must be submitted to the responsible training authority before commencing the secondary activity, specifying the scope, type, and time frame. Unreported or unapproved employment may result in disciplinary measures; only minor jobs are exempt if they are expressly excluded from state legal approval requirements.