Definition and Legal Classification of Professional Assistance
The term ‘Berufshilfe’ (professional assistance) in German law refers to the support, advice, or assistance provided in matters pertaining to others within a specific professional field, often in connection with the exercise of a regulated profession. Profession assistance is particularly relevant in relation to the Legal Services Act (RDG), tax advisory services, and other professional regulations. It denotes professional activity conducted for third parties, especially those activities which, due to their legal or material importance, are subject to special statutory requirements.
Professional Assistance in the Context of Legal Services
Distinction: Professional Assistance Requiring Authorization and Exempt Professional Assistance
The Legal Services Act (RDG) distinguishes between professional assistance that requires authorization and assistance that does not. Professional assistance requiring authorization is particularly present when a legal assessment of an individual case is carried out with the objective of safeguarding the legal interests of a third party. According to § 2 (1) RDG, any activity in specific third-party matters, once it requires a legal review, is considered a legal service and therefore professional assistance requiring authorization.
Exempt professional assistance, on the other hand, includes activities that are not primarily based on legal advice or representation, or for which an explicit statutory exemption exists (see § 5 RDG, the so-called ancillary service privilege).
Typical Forms of Professional Assistance under the Legal Services Act
Typical forms of professional assistance include, for example:
- Legal advisory activities: Advice in legal matters, contract drafting, support in proceedings
- Representation before authorities: Safeguarding the legal interests of third parties vis-à-vis authorities
- Litigation representation: Support and representation in court proceedings, insofar as this is permissible
As a rule, these activities may only be carried out by persons authorized to provide legal services, unless a statutory exception exists.
Professional Assistance in Tax Matters
Tax-Related Professional Assistance
In the field of taxation, the Tax Consultancy Act (StBerG) governs professional assistance. According to § 3 StBerG, the commercial provision of assistance in tax matters is generally reserved for certain professional groups. Professional assistance in tax law is primarily provided by tax advisers and related professions.
Distinction: Permissible and Impermissible Tax Assistance
Any commercial provision of assistance in tax matters without the corresponding professional authorization is impermissible. Exceptions exist for occasional or secondary support (for example, by wage tax assistance associations according to § 4 No. 11 StBerG), provided the statutory requirements are met.
Professional Assistance in Regulated Professions
In Germany, numerous professions are regulated, meaning that providing professional assistance is subject to meeting specific statutory requirements.
Professional Assistance under Trade Regulations
In the context of professional craftsmanship, professional assistance is regulated by the Crafts Code (HwO) and further provisions. Services requiring special expertise and skills may only be performed by persons authorized under the HwO.
Professional Assistance in Medical Law
Assistance in medical professions, especially that which goes beyond supportive activities, may only be provided by licensed professionals. Unauthorized practice is legally regarded as a violation of relevant professional code provisions.
Criminal, Civil, and Regulatory Aspects of Professional Assistance
Criminal Law Consequences of Unauthorized Professional Assistance
Unauthorized provision of professional assistance may be prosecuted under § 113 StBerG, §§ 263 ff. StGB, or § 134 BGB (violation of a statutory prohibition) under criminal law. This applies in particular to unlawful legal or tax advisory services.
Civil Law Consequences
Contracts for unauthorized professional assistance services are usually void under § 134 BGB since they violate mandatory statutory law. This has far-reaching consequences for the civil law relationship between client and contractor.
Relevance under Regulatory Offense Law
Anyone who offers or provides unauthorized professional assistance may be acting in breach of regulatory law, for example, under §§ 20 ff. RDG or the Administrative Offenses Act (OWiG). This is associated with considerable fines.
Significance of Distinguishing from Other Forms of Assistance
In practice, distinguishing between professional assistance requiring authorization and exempt assistance activities is significant. In particular, services rendered by family members, neighbors, or on a voluntary basis are not regarded as professional assistance in the legal sense and are therefore generally not subject to special professional regulations.
Professional Assistance in the European Context
Professional assistance is also recognized and regulated in the European Economic Area through various directives, especially within the framework of the freedom to provide services (Art. 56 TFEU) and freedom of establishment (Art. 49 TFEU). The recognition and exercise of professional support services by citizens of other member states has been harmonized through the so-called Professional Recognition Directive (2005/36/EC).
Summary
In German law, professional assistance is a central concept describing the profession-related support of third parties in their affairs, subject to compliance with specific statutory regulations. The provision of professional assistance in many areas of activity is tied to special legal requirements, and violations are associated with various legal consequences. Especially in the legal, tax, and regulated professional sectors, professional assistance is subject to strict statutory controls to protect legal certainty and consumer interests. A clear distinction from other forms of assistance remains essential for lawful practice.
Frequently Asked Questions
What legal requirements must be met to be entitled to professional assistance?
To receive professional assistance under German social law, several legal requirements must be fulfilled. In principle, entitlement is often governed by § 33 of the Social Code Book IX (SGB IX) in the context of participation in working life for people with disabilities or by specific provisions for rehabilitation and participation benefits (e.g., SGB II and SGB III). There must be a recognized disability, or at least a threatened disability, with medical evidence or a notice from the competent authority (e.g., German Pension Insurance, Employment Agency, Occupational Accident Insurance, Youth Welfare Office). Furthermore, there must be a specific need for vocational integration caused by the disability, which can be met through individually suitable measures. Social benefits law also stipulates that other primary social benefits must first be reviewed and exhausted before professional assistance benefits are granted. Finally, an application must be submitted to the responsible cost carrier; the authorities have an obligation to advise under § 14 SGB IX.
What statutory benefits are included in professional assistance from a legal perspective?
Legally, professional assistance comprises various benefits for participation in working life, as detailed in § 33 SGB IX and additionally in SGB III. Key benefits include assistance in maintaining, obtaining, and performing employment, training benefits, vocational adjustment and retraining, benefits for school-based vocational education including corresponding maintenance payments, as well as support for starting a self-employed existence. This also encompasses technical aids, mobility assistance, workplace equipment, and transition payments during a measure. The type and scope of benefits are always determined by the individual case and must be suitable, necessary, and reasonable. The responsible body decides on benefit provision, taking into account the preference and choice rights of entitled persons (§ 8 SGB IX).
Who is legally responsible as a service provider for professional assistance?
Responsibility for service providers is governed by the Social Code. Potential service providers include, in particular, the Employment Agency, occupational accident insurers (for occupational accidents or diseases), pension insurance providers, social assistance providers, and youth welfare offices (e.g., for young people with disabilities). According to the principle of clarification of responsibility (§ 14 SGB IX), the first institution approached must promptly examine whether it is responsible for providing the benefit. If not, it must immediately forward the application to the competent agency. Coordination and cooperation between providers are governed by nationwide participation law.
How is an application for professional assistance legally correctly submitted?
Legally, a formal application is always required for professional assistance measures, but it can be filed informally as long as it is purposeful (§ 19 SGB X). The application may be submitted in writing, orally for the record, or electronically. Once the application is submitted, an administrative procedure begins, obliging the responsible authority to review and decide within the statutory time limits. The application should include all relevant information regarding personal, health, and professional situation, as well as the intended measure. Additional evidence, such as medical documents or certificates, must be attached. The authority must decide on the application by written, legally binding administrative act, which, in the event of rejection, must include an explanation of legal remedies.
What legal options exist in case of rejection of professional assistance?
If the application for professional assistance is wholly or partially rejected, the applicant has various legal remedies under general administrative legal protection. Initially, an objection may be filed against the rejection notice within one month in accordance with § 84 Social Court Act (SGG). In the appeal procedure, the decision is reviewed by the body responsible for objections within the respective benefit provider. If a positive ruling is not obtained, a lawsuit can subsequently be filed with the locally competent social court (§ 87 SGG). In addition, there is the option to provisionally secure professional assistance through urgent legal protection proceedings (application for interim relief, § 86b SGG), where particular urgency exists. Throughout the entire legal remedies process, relevant new information and evidence should be submitted.
What are the legal obligations to cooperate in the context of professional assistance?
The granting of professional assistance benefits is subject to statutory obligations to cooperate under §§ 60 ff. SGB I. Entitled persons are obliged to truthfully and fully disclose all relevant information concerning their need, health, and professional and personal circumstances. They must cooperate in assessment procedures (for example, medical reports, aptitude tests) and submit required documents on time. Breach of these obligations can lead to delay, reduction, or, in extreme cases, denial of benefits. The benefit provider is obliged to inform claimants properly about their rights and duties in the procedure. There is also a duty to report significant changes in relevant circumstances.
Are there legal limits and exclusions to the granting of professional assistance?
Yes, social law prescribes both substantive and formal limits and exclusions for benefits. Professional assistance can be denied if there is no (imminent) disability or no verifiable need for vocational integration. Benefits are also excluded if they are already covered by a primary provider (for example, by health or accident insurance), or if the applicant fails to cooperate despite being informed. Certain benefits may also be provided on a temporary or purpose-specific basis. The provider always checks proportionality and avoids double funding. In addition, benefits may be excluded if they violate statutory prohibitions or public policy. Exclusion must always be stated and explained in detail in the administrative procedure.
