Business prohibition

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The trade ban is the official decision to permanently prohibit a commercially active entrepreneur from exercising the trade due to unreliability.

Legal basis

According to Section 35 Paragraph 1 Sentence 1 of the Trade Regulations (GewO) , the competent authority can prohibit the exercise of the trade in whole or in part if there are facts that show the unreliability of the trader or a person entrusted with the management of the trade in relation to this trade, if the prohibition is necessary for the protection of the general public or the employees in the company.

Legal classification

According to the regulatory structure according to Article 12 and Article 14 of the Basic Law (GG) as well as § 1 GewO everyone is allowed to practice a trade. The commercial prohibition according to Section 35 of the Trade Regulations stands in opposition to the constitutionally granted freedom of trade in the event that trade affects the interests of the general public, including the state and its institutions, as a restrictive counterpart. The purpose of the regulation is to quickly and effectively prevent abuse of the freedom of trade. The opening of insolvency proceedings on the assets of a trader does not lead to an interruption of the judicial proceedings on a trade ban. A business prohibition order can also be issued after the business activity has been approved under insolvency law in accordance with Section 35 (2) sentence 1 of the Insolvency Code is issued . Tax secrecy is generally not violated by the tax office if the disclosure of considerable tax arrears to the trade authorities can enable them to fulfill the task imposed on them by § 35 GewO.

requirements

  • it must be a trade
  • there must be concrete facts about the unreliability
  • the trader must be unreliable (with regard to the practice of business)
  • the prohibition must be necessary to protect the general public or the employees working in the company
  • the prohibition must comply with the principles of proportionality in the broader sense

literature

  • Josef Ruthig, Stefan Storr : Public Commercial Law , Verlag CF Müller, 2011, Series: Jura in a nutshell, 3rd, revised. Edition, p. 148 ff.
  • Karl Heinrich Friauf (Ed.): Commentary on the trade regulations. Loose-leaf works, Verlag Luchterhand, ISBN 978-3-472-10570-1 ., There §§ 1.35 GewO

Individual evidence

  1. ↑ Bundestag printed paper 7/111, page 4
  2. ↑ s. also VGH Kassel trade archive 1991, page 28
  3. ↑ BVerwG of April 15, 2015 -BVerwG 8 C 6.14
  4. ↑ VG Mainz from November 22, 2018 , 1 K 1375 / 17.MZ, ZInsO 2019, 1385–1389 (principle and reasons);
  5. ↑ BFH 7th Senate of July 29, 2003 - VII R 39, 43/02, VII R 39/02, VII R 43/02 BStBl II 2003, 828, - Confirmation of the BFH judgment of February 10, 1987 VII R 77 / 84, BFHE 149, 387, BStBl II 1987, 545
  6. ↑ s. for example OVG Münster decision of 27.11.2018 - 4 B 1434/18, ECLI: DE: OVGNRW: 2018: 1127.4B1434.18.00