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Under grandfathering (including inventory assurance , guarantee of existence , acquired rights ; English grandfathering , therefore German  grandfather rights ) refers to provisions in laws or agreements , according to which legal relationships will remain unchanged unless they are already facing a worsening legal or contractual revision passed have.


The grandfathering is intended to prevent new or changed laws / contracts from encroaching on the rights of third parties and restricting or even eliminating these rights. This means that the protection of existing rights is part of legal security , because otherwise trust in the validity of the law for current dispositions is retroactively disappointed and the fundamental value of legal certainty is violated. The regulations within the framework of the "grandfathering clause" are intended to exempt someone from the consequences of a changed legal situation because they had already carried out effective legal acts before the changed legal situation . The beneficiaries of grandfathering can be natural persons , companies or certain transactions .


Since then, grandfathering clauses have been found in laws, official approvals and contracts around the world. These clauses secure the beneficiary's previous rights or advantages as an exception, although the general legal situation for future parties is regulated differently. The beneficiary is thus assured that, as an exception, he may retain those historical advantages that will no longer be granted in future, comparable cases. Such clauses are usually associated with transition periods, which means that new, comparable cases can no longer rely on the continuation of this property protection.

Since grandfathering regulations can be found in a large number of everyday situations, only a few essential ones should be selected.


A significant safeguarding of the vested rights can be found in labor law . The sense and purpose of the individual legal regulation of § 613a BGB is to provide complete protection for the employees concerned . It is an indispensable standard that prevents employees from suffering legal disadvantages as a result of a transfer of business . It guarantees the continuation of all employment relationships by transferring all individual legal positions from the previous to the new employer. Section 613a, Paragraph 1, Clause 2 of the German Civil Code (BGB) stipulates that collective law norms that have been transformed into individual legal components of the employment relationship through the transfer of operations may not be changed to the detriment of the employees before the end of one year from the transfer of operations. This so-called change lock is intended to protect the continued existence of the (originally collective) rights and obligations of employees.

The protection against dismissal from Section 1 (1) KSchG is also linked to the protection of existing rights. According to this, a termination by employees is ineffective if it is socially unjustified, i.e. not due to reasons in the person or in the behavior of the employee or if urgent operational requirements prevent continued employment ( Section 1 (2) sentence 1 KschG). Through the grandfathering intended hereby, an employee should be able to be sure that a job once acquired cannot be withdrawn by the employer at will.

Administrative file

The repeal of an administrative act according to §§ 48 ff. VwVfG requires first of all its illegality . If the official repeal refers to an illegal administrative act, § 48 VwVfG speaks of withdrawal . If, on the other hand, a lawful administrative act is to be removed by an authority, this is a revocation according to Section 49 VwVfG . In § 48 para. 2 sentence 1 VwVfG a redemption prohibition is included for unlawful administrative acts favorable performance grantors Art. They may not be revoked if the person concerned has relied on the existence of the administrative act and his trust is worthy of protection after weighing up the public interest in a withdrawal. If the protection of trust prevails in this way, the administrative act is subject to grandfathering. It is important for withdrawal and revocation that they allow its cancellation even after an administrative act has become final, i.e. after it is incontestable.

The building permit is not only a building permit, but also a clearance certificate; the building structure erected in compliance with the permit enjoys an unlimited period of protection due to the permit. In the area of public building law , grandfathering means that a building that has been built in accordance with substantive law is protected in its existence; this protection secures buildings against changes in building law.

Old buildings enjoy grandfathering, but can lose this through modernization.

In building law, a distinction is made between active and passive grandfathering.

  • The passive protection of existing buildings protects existing structures from changes in the material building law. It also applies to commercial operations at locations for which building permits would no longer be granted today due to current building laws or the changed building structure in the area. As the term passive protection of existing buildings makes clear, it is about protecting existing structures or parts of them ( existing structures ), i.e. maintaining their current state. One can speak of inventory and usage protection. A legally erected structure thus remains in conformity with building law even if the statutory provisions change subsequently. One of the following requirements must be met:
The structure must either
  1. have been legally approved at the time of construction and comply with this approval in their execution (formally in accordance with building law),
  2. without having legally valid approval, at the time of construction complied with the material building law regulations (materially in accordance with building law) - (this applies, for example, to building projects not requiring approval) or
  3. without having been legally approved and erected, after having complied with the material building regulations for a long time after construction (material building law) - (this point includes, for example, historical buildings that were erected at a time when there was no applicable building code law ).
  • The active ingredient protection , however, deals with the question of whether modernization measures that serve to maintain or timely use of the existing stock, are protected. The Federal Administrative Court even saw the construction of a garage building next to an existing residential building covered by the active inventory protection, despite conflicting stipulations in the development plan . With the introduction of Section 35, Paragraph 4 of the Building Code, the importance of active grandfathering is now only minor. At the latest since the judgment of March 12, 1998, the jurisprudence has distanced itself from this legal institution. But this is the only logical step, since the whole of the law determines what property and thus the subject of protection of Art. 14 para. 1 GG is. The grandfathering derived therefrom can therefore not assert itself against simple statutory law, if only this simple statutory right determines the object and scope of the grandfathering granted by Article 14.1 of the Basic Law. This can be transferred to the planned and unplanned interior . Even in the interior according to § 34 BauGB, a project can therefore only be approved if all of the factual requirements of § 34 BauGB are met. There is therefore no room for a simplified admissibility of the project due to the grandfathering.

A building that is under protection and has been unused for years is legally assessed as "finally abandoned". However, this is only the case if the building is in decline from the outside, so that the owner obviously no longer wants to use it again. In any case, grandfathering ends with the removal (demolition) of the building.

A special feature exists due to a statute of limitations from the GDR "Ordinance on Population Buildings" for black buildings (buildings, additions, conversions) that were completed in the GDR territory before 1985 and afterwards remained unopposed by the authorities for at least five years. Removal, restoration of the original condition or prohibition of use can then no longer be ordered, even if the construction would not actually have been approved at any time, unless there was a risk to life and limb.

If vehicles are already registered for use on public roads, this registration or re-registration is usually subject to grandfathering. Exceptions were, in particular, the obligation to retrofit a hazard warning system or the "safeguarding against unauthorized use". With the introduction of the environmental zones , however, the operation of older vehicles with an insufficient emission class for defined regions was prohibited for the first time . If motor vehicles are to be classified as oldtimers , § 23 StVZO requires an expert opinion. According to the legal definition of § 2 No. 22 Vehicle Registration Ordinance , oldtimers are "vehicles that were first put on the market at least 30 years ago, largely correspond to the original condition, are in a good state of preservation and are used for the care of the automotive cultural property." The term “classic car” was defined legally and uniformly for the first time. The date of first registration is decisive, not the year of construction. A minimum age of 30 years is now required for both the “H” and the red “07 Oldtimer”. Vehicles that were already registered under the old law with "07 license plates" enjoy comprehensive grandfathering; this applies regardless of whether this label has been issued for a limited or unlimited period. Issued driving license classes also have grandfathering, are transferred to the new classes when the driver's license is reissued or, depending on the date of purchase, supplemented with key numbers.

Contractual grandfathering clauses

The wording in rental contracts , according to which the landlord can only terminate a tenancy "in special exceptional cases in compliance with the statutory deadlines, if important legitimate interests of the landlord make it necessary to terminate the tenancy", gives the tenant greater protection than the statutory provisions. The landlord's legitimate interest stated in Section 573 (2) of the German Civil Code (BGB) is not sufficient for a termination .

Air traffic

The grandfather right in air traffic can be found, for example, in the allocation of slots , the allocated time periods for take-off and landing activities, to a specific airline . An airline is entitled to reallocation of a slot series (e.g. start every Tuesday at 10:00 am during the summer season of a certain year) if it can prove to the airport coordinator that it has used at least 80% of the slot series (also known as "use -it-or-lose-it ”- also known as the“ use it or lose it ”rule).

Another application of these rights is the possibility of maintaining existing codeshare agreements when joining an aviation alliance , even if they were concluded with an airline of a competing alliance.

Rail transport

The term is also used for comparable situations in rail transport since its liberalization, e.g. B. in giving preference to customers in the privatization of route sections if they have already used the route section particularly intensively in the past.

Emissions trading

In emissions trading , the English termGrandfathering enforced. Grandfathering is the allocation of emission certificates within the framework of European emissions trading based on historical emissions in a base period (defined period, e.g. 2000–2004). According to this procedure, the allocation of emission allowances for a plant results from the multiplication of the average CO 2 emissions of the plant in the base period by a so-called compliance factor (usually less than 1); the plant operator receives this calculated share of the historical emissions free of charge. If the operator needs more certificates, he has to buy them in emissions trading.

Grandfathering played a major role in the first two trading periods of the EU emissions trading system (2005–2012); more than 90% of the emission allowances were issued in this way on request. With the start of the third trading period from 2013, state auctioning became the most important means of bringing emission allowances onto the market. The free allocation, on the other hand, is increasingly being reduced and based on a benchmark based on the average of the most efficient 10% of the systems in a sector.

Guarantor liability at Landesbanken and Sparkassen

Until July 18, 2001, liabilities of the Landesbanken and Sparkassen benefited from the subsidiary liability of their public bodies ( guarantor liability ). Creditors of these institutes could therefore trust that their investments were not at risk of default, but would have been repaid by the public institutions in an emergency. This was abolished by the EU competition commissioner for reasons of competition. During a transitional period from July 19, 2001 to July 18, 2005, new liabilities of these institutions were still subject to this guarantor liability, provided they do not fall due after December 31, 2015. The creditors of this money are also still protected by guarantor liability, while the liabilities established after July 18, 2005 are no longer beneficiaries of guarantor liability (they are protected by the deposit protection funds of the Landesbanken, building societies and savings banks). Due to these transition periods, previous and - for a limited time - new creditors were left with the existing rights resulting from the guarantor's liability.

Austria and Switzerland

There are also comparable regulations in Austria and Switzerland. In Austria, grandfathering means protecting the existing employment relationship in particular. The employee should be protected from losing his job at the discretion of the employer or for reasons rejected by the legal system ( general protection against dismissal ). The grandfathering includes all legal regulations that restrict termination in favor of the employee or even postpone termination. For some groups of employees who appear to be particularly worthy of protection, the protection of existing employees is reinforced ( special protection against dismissal and dismissal ).

United States

In the southern states of the USA there were a variety of mechanisms to circumvent the rights from the prohibition of discrimination of the 15th Amendment and to disenfranchise the African-American population. The new constitutions of many southern states stipulated that the right to vote was linked to the payment of a poll tax and the passing of a read-and-write test. But because of this rule, many poor whites would no longer have been eligible to vote. Therefore, through a “grandfather clause” (grandfather rule), everyone whose ancestors had already been eligible to vote before the civil war was granted the right to vote: “Nobody who had the right to vote before January 1, 1867 ... and no direct descendants of these people are allowed to vote In the case of Guinn & Beal / USA the US Supreme Court declared on June 21, 1915 the use of the “grandfather clause” in violation of the prohibition of discrimination and thus unconstitutional. “A state law directly denying the Negro the right to vote would be overturned. In 1915 the Supreme Court declared the so-called grandfather clauses with writing and reading tests ... invalid. "

In modern parlance, “grandfather clause” or “grandparent clause” generally refers to grandfathering and protects people or transactions who had already undertaken legal acts before the new legal or contractual provisions came into force from any legal disadvantages.

Duration of grandfathering

If changes in the law tighten a previous legal regulation or change it to the detriment of those affected, transitional regulations are created. In most cases, these transitional regulations contain a temporary grandfathering. During this period, those affected have sufficient opportunity to rearrange their legal relationships and, in particular, to adapt them to the applicable new regulations. The grandfather phase is then the period in which a previous regulation continues to apply expressly to safeguard rights of ownership. An unlimited grandfathering is rather rare, as it would permanently free a certain group of people, companies or transactions from a certain change in the law. One of the few exceptions is the transitional regulation of Section 39 (6) RechKredV , according to which the savings deposits held before July 1993 - and which meet certain conditions - that no longer correspond to today's Section 21 (4) sentence 1 nos. 3 and 4 RechKredV, a are subject to unlimited grandfathering.


  • Matthias Wehr: Material and formal grandfathering in building law . In: The administration . Journal of Administrative Law and Administrative Sciences . 38th Volume, 2005, pp. 65-89.

Web links

Individual evidence

  1. BVerfG , decision of May 14, 1986, Az. 2 BvL 2/83, BVerfGE 72, 200 .
  2. Maryann Zihala: Rights, Liberties and the Rule of Law , 2005, p 187th
  3. ^ Raimund Waltermann: Berufs Freiheit im Alter , 1989, p. 48.
  4. Jurawelt: Withdrawal and revocation of administrative files ( Memento of the original from February 1, 2014 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Art. 1840. @1@ 2Template: Webachiv / IABot /
  5. Christian W. Otto: Brandenburgische Bauordnung , 2012, p. 358.
  6. Christian W. Otto: Brandenburgische Bauordnung , 2012, p. 379.
  7. Brehsan Gehrke: Does the building law still enjoy grandfathering ? , NVwZ 1999, 932 ff.
  8. Aichele Herr: The task of the supra-statutory protection of existing property and the consequences , NVwZ 2003, 415 ff.
  9. BVerwG, judgment of January 17, 1986, Az. 4 C 80.82, full text = BVerwGE 72, 362 = NJW 1986, 2126.
  10. BVerwG, judgment of March 12, 1998, Az. 4 C 10.97, full text = BVerwGE 106, 228 = NJW 1998, 3136.
  11. BVerwG, judgment of August 27, 1998, Az. 4 C 5.98, full text = NVwZ 1999, 523 f.
  12. ^ OVG North Rhine-Westphalia , judgment of March 14, 1997, Az. 7 A 5179/95, guiding principle .
  13. ^ OVG Thuringia , judgment of December 18, 2002, Az. 1 KO 639/01, full text .
  14. BGH , judgment of October 16, 2013, Az. VIII ZR 57/13, full text .
  15. Cleveland Gazette, August 18, 1900
  16. ^ US Supreme Court, Case 238 US 347 of June 21, 1915.
  17. ^ Robert G. McCloskey: The American Supreme Court 212 , 1960.
  18. ^ Brian Garner: Garner's Modern American Usage , 2009, p. 400.
  19. Helmut Bieg: Bank accounting according to HGB and IFRS , 2011, p. 271 f.