A trade is any permitted economic self-employed activity that is carried out on one's own account, on one's own responsibility and for a certain period with the intention of making a profit , with the exception of freelance work and primary production . In a narrower sense, trade is understood to mean the manufacturing and processing trades in industry and craft as well as various service companies . A trade is carried out by a trader in a business enterprise .
Commercial enterprises are all companies in trade ( commercial trade ), craft , industry and transport . Numerous legal provisions of private law ( labor law , civil law , commercial law or insurance law ) and public law ( commercial law , tax law ) are linked to the legal concept of commercial enterprise .
The following definition has prevailed in German trade law : A trade is any permitted, independent, externally recognizable activity that is carried out according to plan, for a certain duration and for the purpose of making a profit and is not a free profession . This results in the following characteristics:
- after externally directed activity,
- independent (not freelance ) activity,
- planned for the long term,
- Profit-making and
- no activity that is generally against the law ( legal prohibition ) or morality .
An activity is directed outwards when it is clearly visible to third parties. The intention to operate a business, which is not apparent to third parties, is not sufficient for this.
Self-employed (not freelance) activity
Self-employed is someone who is essentially free to organize their work and determine their working hours (see (1) HGB). Those who are not bound by instructions are therefore self-employed. This must be a legal independence, economic independence alone is not enough.
However, the activity must not belong to the liberal professions. These usually require a higher education and are particularly characterized by the personal management and cooperation of the business owner (for more detailed explanations see the article Freelance occupation ).
Planned for a certain duration
Commercial activity carried out as planned and for a certain period of time means that this may not only be carried out occasionally. According to Karsten Schmidt , the activity must be planned forever and ever . In addition, the actions taken must be aimed at a large number of transactions . However, it is not important if a business is / can only be operated seasonally (e.g. beer tent at the Oktoberfest or beach chair rental). Rather, it is crucial that business is carried out repeatedly and regularly (objective) and that there is a corresponding intention (subjective).
Profit-making or hobby
One of the other criteria for the existence of a business is the intention to make a profit, which is still present even if losses occur for some time . Here, however , a distinction must be made between commercial activity and pure hobby . However, there is no officially defined de minimis limit to delimit these two areas. However, two amounts of income tax law can be used as an auxiliary criterion: On the one hand, the profit of € 256 per year or slightly higher stated in EStG , and the exemption limit of up to € 410 per year tax-free according to (3) EStG.
In Germany, the exercise of a trade is subject to the trade regulations . According to this, every commercial activity must be registered and de-registered with the responsible municipality ; Colloquially one speaks of a "trade license". It should be noted, however, that the start of business does not depend on the time of applying for a trade license, but on the start of self-employment.
Based on the freedom of occupation laid down in Basic Law , the freedom of trade was laid down in the trade regulations. According to this, everyone is free, within the framework of other laws, to operate a trade and freely choose their profession , workplace and training facility . Furthermore, the right to the established and exercised business enterprise has been recognized as a property right within the meaning of GG since June 1990 . The legal restrictions on freedom of trade, apart from personal reliability , can be divided into three main groups:
- All manual activities,
- Businesses that require a license , etc. a. Restaurant concessions or in brokerage and security services ,
- Business without a license requirement, d. H. only notifiable.
Trade is divided into the four groups of industry , craft , trade and other (including services , house trade and publishing ). In 1878, the trade supervisory authority was introduced in Germany , which monitors compliance with labor and pollution control regulations and, based on this, can also close businesses in the event of gross violations.
If a commercially established business operation is necessary for the exercise of the trade, the trader is considered to be an actual merchant and is obliged to keep books . Merchants according to the HGB must prepare balance sheets .
The trade begins with the trade registration ( trade registration ), through which a business is registered (displayed) as a trade with the competent authority ( municipality , regulatory office ) in accordance with GewO.
German trade law knows three types of trade:
- The standing Commercial is characterized in that there is a fixed location ( establishment , office , business premises , store , shop owns) for its business activities. The standing trade is the basic form of trade law.
- The travel industry (such as sales representatives , showmen ) does not need a fixed location outside the premises of a commercial establishment .
- The market trade includes exhibitions , wholesale markets , trade fairs , weekly , annual and special markets .
The trade law attaches different requirements to these types of trade, especially with regard to the permit.
In Germany, income from commercial operations is one of the seven types of income listed in (1) EStG and counts as profit income . The legal basis for income from commercial operations is EStG. The income from business operations includes the profits that are achieved with the business.
Every business enterprise is also subject to trade tax ( (1 ) of the Trade Tax Act ). This is a crucial difference in tax treatment compared to freelancers. This disadvantage for the entrepreneur has been alleviated in recent years through higher tax exemptions ( (1) No. 1 GewStG) and the crediting of income tax.
In Austria the trade is mainly regulated in the trade regulations 1994 (GewO). According to (2) GewO, an activity is carried out commercially if it is carried out independently, regularly and with the intention of generating income or other economic benefit, regardless of the purpose for which it is intended; Here it makes no difference whether the intended income or other economic benefit is to be achieved in connection with an activity falling within the scope of the GewO or in connection with an activity not subject to the GewO. Proof of qualification is a prerequisite for exercising regulated trades and partial trades in accordance with GewO. Proof of competence is to be understood as proof that the applicant has the technical, including commercial, knowledge, skills and experience to be able to independently carry out the activities peculiar to the trade in question. The regulated trades listed in GewO must demonstrate the required reliability.
The Switzerland has no uniform national commercial law, as can be found in the German or Austrian Industrial Code. Certain activities or professions are regulated and require that a license application be submitted. No special qualifications are required for regulated activities . The granting of the license depends on criteria such as reputation, the establishment of a supervision (asset manager) or the existence of an admission restriction (travel trade). For regulated professions (notary, doctor), however, the completion of a special training or proof of professional experience in the area is required. Some activities are regulated at the federal level, others at the cantonal level. Anyone who wants to become self-employed must fill out a registration form that must be submitted to the compensation office . This confers the status of self-employed .
- Martin Krämer: The commercial term in civil law . Publishing house Dr. Kovac, Hamburg 2009, ISBN 978-3-8300-4195-5 .
- Rainer Wörlen, Commercial Law with Corporate Law (Learning in Dialogue), Carl Heymanns Verlag, 9th edition (2008), ISBN 978-3-452-26795-5
- Carl Creifelds , Creifelds Legal Dictionary , 16th edition, 2000, p. 578
- Rainer Wörlen , Commercial Law and Corporate Law , 2010, margin no. 10, p. 6
- Klaus Spangemacher, Commercial and Corporate Law , 1999, p. 24
- Rainer Wörlen, Commercial Law and Corporate Law , 2010, margin no. 11, p. 7
- Rainer Wörlen, Commercial Law and Corporate Law , 2010, margin no. 13, p. 7.
- Klaus Spangemacher, Commercial and Corporate Law , 1999, p. 25.
- Karsten Schmidt, § 9 II 2d; Canaris, § 2 II 2b; see. Alpmann Schmidt , HR, p. 4.
- BGH, judgment of June 7, 1990, Az .: III ZR 74/88 = BGHZ 111, 349 , 356
- Rolf Stober, Special Commercial Administrative Law , 2007, p. 36
- Swiss Confederation - The Federal Council, Self-Employment in Switzerland - A Guide , 2020