KONTROLLE: WARUM, WANN UND WIE? EINIGE GRUNDLEGENDE PRINZIPIEN, DARGESTELLT AM BEISPIEL EINE GEWERBEUNTERSAGUNG NACH § 35 DER DEUTSCHEN GEWERBEORDNUNG
CONTROL: WHY, WHEN AND HOW? SOME GENERAL PRINCIPLES OF STATE CONTROL PRESENTED ON THE EXAMPLE OF DISQUALIFICATION FROM PERFORMING COMMERCIAL ACTIVITIES PURSUANT TO § 35 OF THE GERMAN TRADE, COMMERCE AND INDUSTRY REGULATION ACT

Summary/Abstract: This paper deals with issues relating to state control and state reaction to breaches of the rules discovered, using the example of Section 35 of the German Trade, Commerce and Industry Regulation Act (§ 35 Gewerbeordnung, GewO). This provision is the central norm in German law, on the basis of which entrepreneurial activities can be prohibited. In the introduction, the author provides an overview of different forms of control and discusses the role of the courts in general, but also in the context of reviewing the control measures taken by the state.The author agrees that jurisprudence (case law) is not a source of law in the countries of the European-Continental legal system. However, this should not lead to the wrong conclusion that the courts are neither qualified nor obliged to develop the law. After the introductory remarks, the author discusses the provisions contained in § 35 of the German Trade, Commerce and Industry Regulation Act (Gewerbeordnung). This example is of particular interest as it demonstrates various general principles of state control over private activities. While the provision originally contained a casuistic enumeration of individual cases, it nowadays uses a blanket clause. Accordingly, the concept of Unzuverlässigkeit (“unreliability”, which is not defined in more detail) is the definitional element for a disqualification from the practice of commercial activities. Hence, the courts’ task in dealing with the respective cases has significantly changed, as the the control process involves consideration of both public and private interests, as well as striking a fair balance between the opposing public and private interests.The author points out that this is also justified as the legislator can hardly foresee all cases to which the provision might appear in practice. In particular, the author points out that the German legislator, unlike the legislators in some transformation states, has opted for having as few restrictions as possible at the beginning of a commercial activity. In the second part, specific issues relating to a disqualification pursuant to Section 35 of the German Trade, Commerce and Industry Regulation Act are presented based on various court decisions. This is to show how the German courts interpret the indefinite legal term of “unreliability”. It is highlighted that the determination of unreliability is a predictive decision rather than a sanctioning of conduct in the past. Moreover, it is pointed out that unreliability always has to be determined in relation to the respective trade.

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