The handicrafts register is a directory in which the owners of businesses that are subject to licensing handicrafts and the handicrafts to be operated by them are to be entered, Paragraph 1 of the Crafts (HwO). The handicrafts register is kept by the chambers of handicrafts . The business owners entered in the handicrafts register receive the handicraft card ( (2) HwO).
The independent operation of a trades subject to authorization as a standing trade ( Trade Regulations ) is only permitted for natural and legal persons and partnerships entered in the trade register ( Paragraph 1 HwO).
The Annex A to craft regulations contains a list of the industries, which can be operated as a compulsory approval crafts. The entry in the handicrafts register is certified by the handicraft card ( Abs. 2 HwO), which is to be returned if the entry is deleted ( Abs. 4 HwO).
Anyone who, without being registered in the trade register, independently operates a trade subject to authorization as a standing trade, is acting improperly and can be fined up to € 10,000 ( HwO). There may also be a violation of the law to combat illegal employment.
With the authorization requirement for the craft, the legislature aims to ward off dangers to the health or life of third parties through improper craftsmanship. For such "dangerous activities" it should be ensured that they are only carried out independently in the standing trade by persons with appropriate qualifications. In these areas, the customer should be given special protection and should not be referred to compensation for damages and remedial action alone . In addition, the legislature has also adhered to the goal of securing the special training performance of the craft for the commercial economy.
Personal registration requirements
Great certificate of proficiency
In principle, only those who have passed the master craftsman examination in the craft to be operated are entered in the craft register ( major certificate of proficiency ). However, other exams are also recognized. Industrial foremen according to (2) of the Vocational Training Act (BBiG) are entered in the trade register if their examination is equivalent to the respective master craftsman examination ( (2) HwO). Persons who can present a final examination from a German university or a diploma from another EU member state are also entered, provided these degrees are equivalent. State-certified technicians are also registered.
Old journeyman regulation
Altgesellen to a Vesting of a registrable crafts get when they can be an appropriate trade test and a six-year activities, including four years in a managerial capacity, demonstrate. Chimney sweeps, opticians, hearing aid acousticians, orthopedic mechanics, orthopedic shoemakers and dental technicians ( HwO), who must always provide the major certificate of competence, are excluded from this rule .
The Federal Constitutional Court and, most recently, the Federal Administrative Court have decided that the qualification requirements for training contribute to achieving the public interest objective of averting danger. Only a company owner or manager with expert knowledge or qualified professional experience as a veteran is able to avoid dangers in the practice of the trade himself and to instruct and supervise the employees.
Exemption for craftsmen from within Germany
In special cases, entry in the craft register can also be made via an exemption (HwO), which is issued by the competent administrative authority after hearing the Chamber of Crafts ( (3) HwO). The prerequisite for this is proof of relevant knowledge and skills and the existence of an exceptional case. This assumes that taking the master craftsman's examination would mean an unreasonable burden. Exceptional cases can be, for example: other exams, outsourcing, long waiting times, health reasons or physical handicap, the opportunity to take over a business, performing a special job, advanced age.
Registration-free minor craft
The exercise of insignificant activities in accordance withParagraph 1 Clause 2 No. 1 to 3 HwO.
If services are not provided for third parties but only for the main company, no entry in the trade register is required either ((2) and (3) HwO - insignificant ancillary and auxiliary companies). The so-called auxiliary companies must serve the economic purpose of the main company. Manufacturers and importers can install the products they produce or import at third parties without having to be entered in the trade register.
Craftsmen from other EU / EEA countries
Freedom of establishment within the European Union is expressly stipulated in EU law (Art. 49 TFEU ). In the EU member states, market access is therefore only conditional for a few skilled trades. Only in Austria and Luxembourg is there a comparatively comprehensive concept of craft with similarly strict professional admission requirements as in Germany.
The EU Directive on the Recognition of Professional Qualifications of 2005 contains in Art. 1 mandatory requirements for the recognition of professional qualifications acquired in one or more other member states when accessing and practicing a regulated profession. The regulations of the German EU / EEA Crafts Ordinance of 2007 issued in implementation of this directive have been transferred into national law by HwO.
According to § 9 Paragraph 1 Clause 1 No. 1 and 2 HwO, a citizen of a member state of the European Union , a signatory to the Agreement on the European Economic Area or Switzerland, who has a commercial establishment in Germany for the exercise of a trade subject to authorization, or as a manager wants to become active, under certain conditions an exception permit for entry in the trade register is granted or the cross-border provision of services in a trade subject to licensing is permitted.
- Karl Brenke : Reform der Handwerksordnung - Successful, but much too half-hearted quarterly magazine for economic research 77 (2008), 1, pp. 51–64
- Walter Georg Leisner: The “master craftsman qualification” in German craftsmanship in the light of the (more recent) ECJ and constitutional court case law Ludwig Fröhler Institute for Crafts Studies, Munich 2014
- Report by State Minister Erwin Huber on items 64a and b of the agenda, Federal Council minutes, 795th meeting, December 19, 2003 , p. 517
- BVerfG, decision of December 5, 2005 - 1 BvR 1730/02 margin no. 16 ff. On the so-called master compulsory
- BVerwG, judgment of April 9, 2014 - 8 C 50.12
- BVerwG, judgment of August 31, 2011 - 8 C 9.10 margin no. 19, 22
Special report of the Monopolies Commission: Reform of the Crafts and Trades Regulations Special report of the Monopolies Commission in accordance with Section 44, Paragraph 1, Clause 4 GWB, May 2001.
3. Regulation of the Crafts and Crafts in the European Environment
- OJ EU No. L 255 p. 22
- Frenz, The Recognition of Professional Qualifications according to the Professional Recognition Directive, GewArch 2007, 27 f .; Stork, in: Schwannecke, HwO, as of April 2011, § 9 Rn. 3 f., 20 f.