Legal definition and classification of eating establishments
The term eating establishment is a central term in German hospitality law. It refers to a specific form of hospitality business, whose commercial activity is primarily focused on offering meals for immediate consumption on the premises. The eating establishment is mentioned in various federal and state legal regulations and is subject to specific legal requirements.
Conceptual distinction
According to the common definition, an eating establishment is an operation where meals and, in some cases, both non-alcoholic and alcoholic beverages are served for on-the-spot consumption, with the main focus on the food offering. The distinction from a bar, which primarily centers on the serving of beverages, is essential for the legal treatment of both types of businesses.
Historical development
The term eating establishment is closely connected to the evolution of the hospitality industry in Germany. Over time, there has been an increasing differentiation in hospitality law, especially within the framework of the Restaurant Act (GastG), which came into force in 1970. The legal framework has developed further, particularly with the federalism reform and the transfer of regulatory authority for hospitality law to the federal states.
Legal basis of eating establishments
Restaurant Act (GastG) and state laws
The German Restaurant Act (GastG) originally regulated the requirements for running eating establishments nationwide. With the federalism reform of 2006, legislative competence for hospitality law was transferred to the states, so that state law now partly or wholly replaces the GastG. Nevertheless, the GastG still applies in many states, at least until state law has superseded it.
Legal definition in the Restaurant Act
According to § 1 para. 1 GastG, a restaurant in the legal sense is an establishment where beverages (bar) or prepared meals (eating establishment) are offered for consumption on the premises for remuneration. Eating establishments are therefore restaurants whose activity essentially focuses on offering food, though beverages may also be included in the offer.
Specific state regulations
Certain federal states such as Bavaria, Hesse, Lower Saxony, or Baden-Württemberg have their own hospitality acts (e.g., GaststättenG BW). The definition and legal treatment of eating establishments may therefore differ by state. However, licensing requirements and distinctions mostly align with federal legal traditions.
Licensing requirement and notification
Operating an eating establishment is subject to the Trade Regulation Act (GewO) and in many cases the hospitality law. In principle, operating a purely eating establishment does not require a special permit if only non-alcoholic beverages and food are offered. The offering of alcohol, however, brings a preventative license requirement in many federal states. According to § 2 GastG (in states where the GastG applies), a hospitality license is required for serving alcoholic beverages.
Since the federalism reform, there are differences regarding the licensing requirement. In some federal states, a trade notification is now sufficient if the eating establishment does not sell alcoholic beverages.
Distinction from similar business types
Bar
Die Bar is similar to an eating establishment, but its defining business purpose is the serving of beverages, particularly alcoholic in nature. The legal requirements for bars partly coincide with those for eating establishments, but differ especially with regard to the requirements for licensing and supervision.
Snack bars and canteens
In contrast to the classic eating establishment, snack bars or company canteens are often considered special forms under the Restaurant Act and state regulations, to which partially different provisions may apply.
Requirements and obligations for operators of an eating establishment
Trade law notification
Any activity in the area of eating establishments must, pursuant to § 14 GewO, be registered as a business. Registration is done with the responsible municipal or city administration. In addition to the basic notification, further approvals may be required depending on the offer and location, including building permits, hygiene certificates, or, if applicable, a hospitality license.
Hygiene law requirements
Eating establishments are subject to extensive food law regulations, particularly under the Food and Feed Code (LFGB) as well as the European Regulation (EC) No. 852/2004 on food hygiene. Compliance with minimum hygiene standards is regularly monitored by food supervisory authorities.
Building law requirements
Building regulations, such as requirements for fire protection, toilet facilities, ventilation, escape routes, and other structural obligations, apply to eating establishments. Prior to opening, a change of use or building permit may be required, especially when converting existing buildings.
Labor law and social security
Operators of eating establishments, as employers, are subject to labor law obligations. These include compliance with the Working Hours Act, minimum wage legislation, as well as registration and payment of social security contributions.
Tax law aspects
Eating establishments are subject to value-added tax insofar as turnovers are generated within the framework of a permanent business. Furthermore, the income tax regulations for profits from commercial operations must be observed. The tax rate may differ depending on the offer (meals for consumption on the premises or takeaway).
Youth protection rules
The serving of alcoholic beverages to minors is governed by the Youth Protection Act (JuSchG). Compliance with the relevant regulations is of particular importance and subject to official controls.
Control and sanction measures
Official inspections are an integral part of hospitality law. Violations of restaurant, hygiene, or youth protection regulations can result in criminal or administrative penalties. In serious cases, the withdrawal of the hospitality license or closure of the operation can be threatened.
Summary and practical significance
Die eating establishment is subject in Germany to a complex network of trade, hospitality, building, and hygiene law regulations. The actual structuring and legal treatment may differ depending on the federal state and requires a thorough examination of the applicable legal situation. When aligning the respective laws and regulations, particular attention must be paid to the current state regulations, hygiene standards, as well as tax and labor law obligations.
Due to the importance of eating establishments in everyday life and in the sector of public services, their legal basis is highly relevant for both operators and supervisory authorities.
Frequently asked questions
What permits are required to open an eating establishment?
Various legal permits are required to open an eating establishment in Germany. Initially, according to § 2 Restaurant Act (GastG), a hospitality license is necessary if alcohol is to be served. This license is granted by the competent authority (usually the public order office) only if the applicant demonstrates personal reliability, lives in orderly financial circumstances, and provides a certificate of participation in a food law briefing by the Chamber of Industry and Commerce (IHK) – in accordance with § 4 para. 1 no. 4 GastG. Additionally, a building permit for commercial use of the premises is needed. According to the Trade Regulation Act (GewO), a business registration must also be filed with the trade office. Where food is offered for on-the-spot consumption, the relevant provisions of food law (in particular the Food Hygiene Ordinance – LMHV) must also be observed. Depending on the federal state, further specific provisions may exist, such as closing time ordinances or requirements to protect against noise.
What obligations exist regarding hygiene regulations in eating establishments?
Operators of eating establishments are subject to strict legal requirements relating to food safety and hygiene. The core basis is Regulation (EC) No. 852/2004 on food hygiene and the national Food Hygiene Ordinance (LMHV). These regulate, among other things, requirements for the condition of business premises, proper storage and preparation of food, personnel hygiene (including regular training to prevent foodborne infections according to § 43 Infection Protection Act), as well as the obligation of regular self-monitoring within the framework of the HACCP concept (Hazard Analysis and Critical Control Points). In addition, businesses are obliged to declare allergenic substances pursuant to the Food Information Regulation (LMIV). Violations of these regulations may result in criminal and administrative consequences.
Under what conditions may alcoholic beverages be served in an eating establishment?
The serving of alcoholic beverages in an eating establishment generally requires a permit. According to § 1 para. 1 GastG, a hospitality license is required for the serving of spirits, beer, wine, or other alcoholic drinks. Preconditions for the issuance of the license include the personal reliability of the applicant, a suitable business location, and—where required by law—proof of corresponding expertise by means of briefing at the IHK. In addition, youth protection provisions under the Youth Protection Act (JuSchG) may apply, especially concerning serving minors and the obligation to display appropriate notices on the premises. Local closing time rules as part of public service obligations must also be observed.
What obligations toward youth protection exist in an eating establishment?
Eating establishments are particularly bound by the provisions of the Youth Protection Act (JuSchG). Accordingly, minors under 16 years old are in principle not allowed to remain in restaurants offering food for consumption on the premises without a custodial person or a person with parental authority (see § 4 JuSchG). The serving of alcoholic beverages to minors is strictly prohibited: beer, wine, and sparkling wine may only be served from the age of 16, spirits only to adults from 18. There is an obligation to perform age verification (e.g., ID checks). Violations can be punished as regulatory offenses.
Must an eating establishment observe specific opening hours?
The opening hours of an eating establishment are primarily determined by state regulations—so-called hospitality or closing time ordinances. In many federal states, specific closing times apply during which restaurants must remain closed to protect residents from noise and maintain public order. Exceptions may be granted on application if a special interest (e.g., city festivals, major events) is demonstrated. In addition, further restrictions may be imposed by official decrees (e.g., noise protection in residential areas).
What particular liability risks exist for operators of an eating establishment?
The operator of an eating establishment bears a comprehensive duty of care for guests and employees. This applies particularly to the safety of food consumed (product liability under food law), the safety of business premises (e.g., elimination of sources of danger such as slippery floors or defective electrical installations), and compliance with fire safety regulations. In case of violations of these obligations, the operator may be held liable both civilly (damages) and criminally (bodily injury, endangerment). In addition, fines may be imposed for violations of food and hygiene law, insufficient youth protection, or non-compliance with the Working Hours Act.
What labor law regulations must be observed in an eating establishment?
Labor law regulations of the General Equal Treatment Act (AGG), the Working Hours Act (ArbZG), the Minimum Wage Act (MiLoG), and the Maternity Protection Act (MuSchG) apply in eating establishments. In particular, statutory maximum working hours, break rules, and rest periods must be complied with. For minors, stricter provisions under the Youth Employment Protection Act (JArbSchG) apply. If seasonal workers or mini-jobbers are employed, the regulations governing social security obligations and minimum wage documentation must be strictly observed. Furthermore, the conclusion of written employment contracts with clear rules on working hours, remuneration, and vacation is legally required.
