Definition and significance of the training plan during legal clerkship (Referendariat)
Der Training Plan during Legal Clerkship is a central document for managing and organizing the practical training of prospective fully qualified lawyers in Germany. Within the framework of the legal preparatory service (Referendariat), the training plan ensures that legal clerks complete all required stages and content necessary to take the second state examination in law. The training plan is legally standardized and subject to both federal and state regulations as well as the respective training ordinances.
Legal Basis of the Training Plan in Legal Clerkship
Federal Legal Requirements
The overarching legal framework is set by the German Judiciary Act (DRiG), in particular §§ 5 et seq. DRiG, which regulate the training and examination for the higher judicial service career. The DRiG requires practical and as diverse as possible training for legal clerks, reflecting future career paths in the judiciary, administration, and legal profession. The details, especially regarding the content and structure of the training plan, are, however, delegated to the respective state law.
State Regulations and Training Ordinances
Each federal state has its own Legal Training Ordinance or a Legal Training Act, which determine the structure of the legal clerkship (duration, stations, content) as well as the requirements for the training plan. Frequently, the training ordinances (e.g., JAG NRW, JAPO Bavaria, JAG Berlin) set binding minimum durations and the order of the individual training stations. The responsibilities of the training institutions regarding planning, documentation, and individual adaptation of the training plan are also governed by state law.
Legal Binding Force and Scope for Design
The training plan has a normative character and is binding for the training authorities as well as for the legal clerks. Nevertheless, there is limited room for individual adjustment, for instance regarding additional training content, voluntary internships, or elective stations, the specific design of which must be recorded and agreed upon in the training plan. Amendments to the training plan are only permissible within the framework of legal provisions and with due consideration of the principle of equal treatment.
Structure and Content of the Training Plan in Legal Clerkship
Structure of the Training Plan
The training plan is typically structured according to the compulsory and elective stations of the legal clerkship and follows the respective training ordinance. A regular training plan includes, among others, the following sections:
- Introductory Courses: Overview and foundation at the beginning of each station
- Practical Training Stations: Specification of the training sections in courts, authorities, and the legal profession
- Accompanying Workgroups (AGs): Regular joint training units for practical case work and in-depth study
- Evaluation Sections: Reflection and, where applicable, adaptation of the training plan
Typical Training Stations
The content of the training plan is based on the commonly established training stations in Germany (§ 35 JAPO Bavaria, § 34 JAG NRW, etc.):
- Civil Court Station: Teaching knowledge in civil procedure law and substantive practical involvement
- Criminal Law Station: Work at a prosecuting authority and/or criminal court
- Administrative Station: Training at an administrative authority or administrative court
- Lawyer’s Station: Practical training in a law firm
- Elective Station: Individual focus, especially in private law, criminal law, administrative law, or international law, as well as with notaries or in-house legal advisors
Training Objectives and Documentation Requirements
The objective of the training plan is to prepare the legal clerk professionally, methodologically, and personally for the demands of future professional life. For this purpose, the training plan not only includes topics and assignments but also contains regulations on attendance, performance records, and, if applicable, assessment by trainers.
Creation and Approval of the Training Plan
Responsibility and Approval Procedure
Responsibility for creating and approving the training plan typically lies with the respective training supervisors of the stations or the administration of the clerkship (e.g., the Higher Regional Court). The legal basis for this is provided by state laws and ordinances. The training institution develops an individual plan together with the legal clerk, within the legal framework, and undertakes to document and monitor its implementation.
Adaptation and Amendments
Training plans can be adjusted in the event of valid reasons – for example, illness, parental leave, or special personal needs. Such changes generally require formal approval and must always comply with legal requirements.
Legal Protection and Regulatory Oversight
Legal Protection in Case of Disputes over the Training Plan
If there are disagreements regarding the implementation, organization, or modification of the training plan, the parties involved have access to administrative legal remedies. The basis for this is provided by general administrative regulations and the relevant regulations of administrative procedural law (Administrative Court Procedure Code). In particular, interventions in the training process guaranteed by law or any disadvantages in training planning can be subject to judicial review.
Supervision by Regulatory Authorities
In addition, it is the responsibility of the state justice administrations to monitor compliance with statutory requirements and, if necessary, to issue instructions. Objections or corrections are made as part of an administrative procedure.
Documentation and Retention Obligations
Documentation of Training Content
Training institutions are obliged to document in writing all steps and content of the training plan. This particularly concerns attendance, proof of activities, and evaluations. Such documentation is necessary to ensure the lawful completion of training and proper admission to the second state examination.
Retention and Data Protection
The prepared training plans and associated documentation are subject to applicable data protection provisions and must be retained for a legally prescribed period after completion of training. This serves both as evidence and to enable later review if necessary.
Summary
Der Training Plan during Legal Clerkship is a legally standardized instrument, both substantively and formally binding, to ensure comprehensive and proper training in the legal preparatory service in Germany. Its design is governed by federal and state requirements and ensures that all relevant stages of training are completed. Legal disputes are resolved by administrative courts. Documentation and proper execution of the training plan are prerequisites for admission to the second state examination in law and thus entry into the higher judicial service.
Frequently Asked Questions
Which legal requirements regulate the creation of the training plan during the legal clerkship?
Creation of a training plan during the legal clerkship is regulated in the respective training and examination regulations of the federal states, for example, in the Legal Training Acts (JAG) and the training ordinances based on them (e.g., the Legal Training Ordinance – JAO). The regulations specify that a written training plan must be drawn up for each training station of the preparatory service. This plan must clearly document the learning objectives and planned training content, the schedule, as well as the assignment to trainers or offices. The design is the responsibility of the relevant training authority, which is also required to ensure compliance with statutory provisions, particularly equal treatment and transparent planning. The clerkship must cover the prescribed mandatory stations and may include optional elective stations to allow individual focus. The legal basis also includes the Equal Treatment Act, which prevents discrimination in the allocation of training positions. Failure or incorrect preparation of the training plan may result in disciplinary consequences and is, if necessary, subject to judicial review in the context of objection or legal action procedures.
What participatory rights do legal clerks have in the creation of the training plan?
According to the applicable training regulations, legal clerks regularly have their own participatory and involvement rights when creating the training plan. These derive directly from the principle of balancing interests, as stated, for example, in § 15 paragraph 2 DRiG and relevant administrative instructions. Usually, legal clerks must be given the opportunity to express specific wishes regarding the training institution, the trainer, or training content. These wishes must be considered by the training management within the scope of legal and organizational possibilities. The standard here is reasonableness and the capacities of the training institutions. However, this does not amount to an enforceable right to a particular training institution, but to a right to error-free consideration of interests. If the training authority rejects a wish, it must provide written reasoning.
What are the legal consequences of deviating from the training plan?
Deviations from the training plan during legal clerkship may have legal consequences for both the clerk and the training institution. In principle, the training plan is binding unless necessary or operational changes require a deviation. If a deviation is necessary, it must generally be carried out through a formal amendment process, including documentation and notification to the clerk. An unauthorized and unapproved change can be regarded as a breach of official duty and be sanctioned under disciplinary law. Conversely, an unjustified or unexplained deviation by the training supervisor may be subject to review in the context of a supervisory complaint, an objection procedure, or even before administrative court. In serious cases, this may affect the crediting of completed training periods and, thus, admission to the examination.
What control and approval mechanisms exist for training plans during legal clerkship?
Training plans during legal clerkship are, in most federal states, subject to mandatory control and approval by the respective responsible training authority or the president of the regional court or the administrative authority. The trainer prepares a draft of the training plan together with the clerk, which must be submitted for further processing and approval. The authority then examines whether the legal requirements and minimum content, as stipulated in the relevant training and examination law, are fulfilled. In particular, the required compulsory stations, continuity of training, and proper management of training periods are monitored. Approval is often also required for individual modifications or special regulations, for instance, the crediting of prior experience or training sections completed abroad.
Can training plans be legally challenged retrospectively?
A training plan can be legally challenged if clerks assert that the plan contains formal errors, legal provisions have not been observed, or their interests have not been sufficiently considered due to a misuse of discretion. Initially, an objection procedure must be filed with the responsible training authority, in which a review and, if necessary, correction of the plan may be requested. If the objection is unsuccessful, it is possible to file a complaint with the administrative court, where judicial protection is usually sought by way of interim relief if the challenge is intended to have suspensive effect. Judicial review is then limited exclusively to legal aspects, particularly compliance with procedural requirements and principles of equal treatment.
To what extent is the training plan legally relevant for assessing training performance?
The training plan forms the binding basis for the further assessment of the clerk’s performance in the respective stations. It determines the training content to be conveyed and thus serves as a standard for evaluating performance records and certificates. Errors in assessment can be asserted if a discrepancy between the training plan and the actual training provided is proven. Thus, violations of the plan, for instance omitting important training content, can result in deficiencies in the assessment of practical performance and, if necessary, justify a reassessment or repetition of the station. The legal basis for this is the principle of equal opportunities under Article 3 of the Basic Law and the relevant examination regulations.
What legal remedies are available if the training plan is discriminatory or arbitrary?
Should the training plan show indications of discrimination, for example on grounds of gender, origin, disability, religion or similar characteristics, or if it has been drawn up in an obviously arbitrary manner, various legal remedies are available to the affected person. In addition to a supervisory complaint, an objection under the administrative procedures acts of the federal states may be considered. In particularly serious cases – such as repeated violations of the General Equal Treatment Act (AGG) – a technical supervisory complaint or judicial clarification by interim order may also be requested. The examining authority is obliged to investigate allegations of discrimination and to undo any disadvantages, which may include reassignment of a training place or complete revision of the training plan.