Term and legal definition of brothel
Definition
A brothel refers to a commercially operated establishment where sexual services are offered for payment. The main distinguishing feature of a brothel is that the service is offered regularly, repeatedly, and in premises provided by the operator. The activity is usually carried out by several persons within an organized framework. Brothels thus differ from individual offerings or occasional prostitution.
Historical development of legal regulation
The history of brothels in Germany and the German-speaking area has undergone significant changes. While prostitution and brothel operation were frequently regulated and taxed by the state during the Middle Ages and early modern period, criminalization and social ostracism increased from the 19th century onwards. Only with the social reforms of the 20th and 21st centuries was there a liberalization of legal conditions in Germany. The Prostitution Act (ProstG) of 2002 and the Act on the Protection of Prostitutes (ProstSchG) of 2017 represent key milestones in the legal equalization and regulation of brothels.
Legal framework for brothels in Germany
Permissibility of operating brothels
In Germany, the operation of a brothel is generally permitted, provided certain legal requirements are observed. However, brothels are subject to a multitude of public and private law regulations. In particular, commercial, building, regulatory, social, and tax law requirements must be met. The federal states and municipalities can issue supplementary regulations, which may include spatial and organizational requirements for brothels.
Trade regulations
The operation of a brothel qualifies as a “business” under the Trade Regulation Act (GewO). However, operation is subject to a special official license requirement pursuant to § 12 ProstSchG as well as a reliability check on operators. Registration of the business and granting of an operating license are prerequisites for lawful activity.
Prostitute Protection Act (ProstSchG)
Since July 1, 2017, the Prostitute Protection Act (ProstSchG) has been in force. It comprehensively regulates the rights and obligations of prostitutes and operators of prostitution establishments, including brothels.
Key contents of the ProstSchG:
- License requirement for operating a prostitution establishment
- Reliability check of the operator
- Proof of compliance with structural, hygienic, and organizational minimum requirements
- Notification and record-keeping obligations
- Protective measures for persons working in brothels (e.g. mandatory counseling for prostitutes, protection against exploitation and human trafficking)
Building law and site requirements
Brothels are subject to zoning laws according to the Federal Building Code (BauGB) and the Land Use Ordinance (BauNVO). Operation is usually only permissible in certain building zones (e.g. commercial areas). Municipalities can designate special exclusion zones or distance regulations from sensitive establishments (e.g. schools, churches, kindergartens) in development plans and statutes.
Regulatory law and restricted zone ordinances
Some cities and municipalities issue so-called restricted zone ordinances that fully or partially prohibit prostitution and brothel operation in certain areas. The basis for this is the police law of the federal states, particularly for averting danger and protecting public order.
Operator obligations and rights
License requirements
Since the introduction of the ProstSchG, an official license is mandatory for operating a brothel. Granting the license requires personal reliability of the operator and compliance with stricter requirements for the business concept.
Obligations of brothel operation
- Protection of minors: Persons under 18 years of age are not permitted to be present in or work at a brothel.
- Health protection: Hygiene requirements and health counseling must be adhered to.
- Social protection: Operators are required to inform all persons working in their establishment about their rights and protective options.
- Working conditions: There is an explicit prohibition of coercion or exploitation of emergency situations. Operators must ensure voluntary participation in the work and may neither require nor restrict activities.
Documentation and reporting obligations
Brothel operators must fulfill comprehensive record-keeping and documentation duties. This includes, among other things, verifying the identity of persons working in the brothel, proof of health counseling sessions, and notification of newly commenced activities to the relevant authorities.
Employment law situation in brothels
Persons working in brothels are usually self-employed. Nevertheless, under the Prostitute Protection Act they enjoy certain protective rights, such as the right to counseling, protection against discrimination, and the right to freely organize their work. Fundamentally, there is no dependent employment if working hours, workplace, and acceptance of clients can be determined independently.
Tax treatment
Brothel operators and persons working in brothels are subject to the relevant tax obligations. These include, in particular:
- Income tax or corporate income tax
- Trade tax (in the case of operating a prostitution establishment)
- Value-added tax on income from sexual services
Additionally, some municipalities levy an amusement tax on certain services, such as room use or admission fees.
Criminal law aspects and protection against exploitation
Criminal law relevance
Operating a brothel is a criminal offense if legal requirements are violated. In particular, it is a criminal offense to:
- Operate without an official license
- Promote human trafficking (§ 232 StGB)
- Forced prostitution (§ 232a StGB)
- Exploitation of prostitutes (§ 233 StGB)
- Pimping (§ 181a StGB), when violence, threats, exploitation of dependency, or coercion is involved
Protective measures
The ProstSchG and its accompanying regulations serve in particular to protect persons working in brothels. They contain comprehensive preventive measures to prevent coercion, exploitation, human trafficking, and unacceptable working conditions.
International comparison of regulations
European countries differ significantly in the regulation of brothels. While Germany and the Netherlands allow and comprehensively regulate brothels, countries such as Sweden have a model that criminalizes the purchase of sex (the so-called Nordic model). In some states, brothels are completely prohibited (e.g. France), while others have licensing systems.
Summary
A brothel is legally defined as a commercially operated establishment for the provision of sexual services, the operation of which in Germany is subject to comprehensive legal requirements. The relevant regulations serve to protect those affected as well as to ensure proper, safe, and transparent business operations. In addition to commercial and social obligations, there are special requirements regarding health protection, protection of minors, and the fight against exploitation and coercion. The legal situation is characterized by a field of tension between liberalization, regulation, and crime prevention.
Frequently Asked Questions
What legal requirements must be met to open a brothel in Germany?
Strict legal regulations, stipulated in the Prostitute Protection Act (ProstSchG) and corresponding state laws, apply to the opening and operation of a brothel in Germany. First, an official license under § 12 ProstSchG is required, which is only granted if the operator’s reliability is proven and there are no facts indicating a threat to public welfare. Reliability is assessed, among other things, by a police clearance certificate and information from the central trade register. The operator must also submit a comprehensive business concept describing the services offered, house rules, hygiene regulations, and measures for protecting prostitutes and customers. Building requirements for the premises are governed by state and municipal regulations, particularly with regard to fire protection, layout, sanitary facilities, and, if applicable, noise protection. In addition, every prostitute working in a brothel must be properly registered with the authorities and provide valid health counseling and proof of registration. Violations may result in closure of the business and significant fines.
What obligations does the operator of a brothel have towards the prostitutes working in the establishment?
Operators of a brothel in Germany are required to respect the rights of prostitutes and to ensure their ability to work independently. Under the ProstSchG, they must ensure that no one is forced into prostitution and that prostitutes can organize, carry out, and terminate their work at any time. Operators must also ensure that all prostitutes provide the legally required registration and regular health counseling certificates. They are required to pay attention to protective measures against violence and exploitation, to make relevant information accessible to all employees, and to ensure safe, hygienic working conditions. Furthermore, brothel operators are subject to certain documentation and information duties vis-à-vis authorities, such as with regard to working hours and staff data. They must not promote or tolerate indecent or criminal acts and must strictly observe the regulations on the protection of minors. Failure to comply with these obligations may result in both civil and criminal consequences.
Are there special tax considerations in operating a brothel?
Yes, there are specific tax requirements and obligations when operating a brothel in Germany. In principle, brothel operations are subject to trade tax if conducted as a business. The services provided are generally subject to value-added tax (VAT), with the current rate at 19%. Operators must properly document all income and expenses and maintain complete bookkeeping records. Since 2004, prostitutes are expressly subject to income tax for income derived from sexual services on their own account. Operators must pay particular attention to the so-called amusement tax, which in some cities is levied directly on brothel operations or on each service provided or on the room rental for prostitutes. The exact structure of these local taxes varies greatly by municipality or city. Non-compliance may result in back payments and penalties from the tax authorities.
What requirements apply in regard to the protection of minors in a brothel?
The protection of minors plays a particularly rigorous role in the legal context of brothel operation. According to § 232 StGB (human trafficking) and § 180a StGB (promotion of prostitution), it is prohibited to involve persons under the age of 18 in prostitution in any form, whether as service providers, visitors, or employees. The presence of minors in brothels is strictly prohibited. Operators are required to reliably check and document the age of employees and customers. This generally requires checking a valid ID. Violations are subject to severe penalties, including imprisonment. Additionally, brothels that breach regulations on the protection of minors may be closed and their licenses revoked.
What requirements and inspections must brothel operators expect?
Brothel operators must expect regular and unannounced inspections by various authorities, including regulatory offices, police, health authorities, customs, and tax offices. These inspections include checking compliance with operator obligations under the ProstSchG, as well as building, hygiene, tax, employment, and youth protection regulations. Registration certificates, proof of health counseling, and, if applicable, employment contracts are particularly scrutinized. In the event of deficiencies, the authorities may take immediate measures, including temporary closure of the business. Additionally, there is a documentation requirement, for example, regarding employees, which must be presented to the trade supervisory office.
What liability risks do brothel operators face?
Brothel operators are fully liable for violations of applicable laws under civil, administrative, and criminal law. This applies to unauthorized operation, employment of unregistered prostitutes, violations of hygiene or fire protection regulations, as well as violations of data protection and tax law. Liability is particularly significant in cases of exploitation, coercion, or human trafficking—in such cases, operators face substantial fines and imprisonment, revocation of the operating license, and claims for damages. Compliance with information obligations and the protection of employee personal data are also relevant for liability; breaches may result in high fines under the GDPR.
Is advertising for brothels legally permitted and if so, under what conditions?
Advertising for brothels is generally permitted but subject to strict legal restrictions. According to § 119 OWiG, obscene or offensive advertising that violates public decency can be punished as a regulatory offense. Advertising must not be directed at minors or give the impression that sexual acts for payment are possible without restriction. Many federal states and municipalities have additional regulations on permissible forms of advertising, such as banning exterior advertising on facades, posters, or illuminated signs in public spaces. All advertising for the use of sexual services on the internet, in print media, or via flyers is permitted, provided the legal requirements are met. Advertising relating to minors, forced, or hazardous services is strictly prohibited.
