Operational obligation
The operational obligation is a central concept in German economic administrative law and refers to the legal requirement to commence, maintain, and properly operate a publicly authorised or licensed facility, installation, or service. The operational obligation safeguards, in particular, the public interest in a continuous and reliable provision of certain services to the general public.
Legal basis of the operational obligation
Statutory anchoring
The operational obligation is based on various special statutory provisions of public law. It is primarily established in sectors where the public interest requires a reliable provision of goods or services, such as in the Act on Passenger Transport (PBefG), the Energy Industry Act (EnWG), the Trade, Commerce and Industry Regulation Act (GewO), as well as in municipal statutes.
- Act on Passenger Transport (§ 21 PBefG): Requires the continuous and proper execution of approved transport services.
- Energy Industry Act (§ 17 EnWG, § 4 para. 1 sentence 1 StromGVV/GasGVV): Regulates the network operator’s obligation to ensure the safe and reliable provision of energy.
- Trade, Commerce and Industry Regulation Act (§ 15 para. 2 GewO): Obligation to properly conduct commercial operations after notification.
- Further provisions can be found, among others, in water law, waste law, aviation law, and railway law.
Public duty and common good
The operational obligation often arises from the assignment of a public duty or exclusivity (monopoly position), particularly in the context of public services. Its aim is to prevent supply shortages and protect users from arbitrary or extended unavailability of the respective service.
Origin and prerequisites of the operational obligation
Circumstances leading to its creation
The operational obligation typically arises through the granting of an official licence, approval, or permit that contains a corresponding provision or condition. In some cases, it derives directly from statutory law. It can also arise from the conclusion of a public law contract.
Typical prerequisites
A prerequisite is typically that an operation exists within the meaning of the respective special statutory regulation. A distinction is made between operations requiring approval, commercial enterprises, and public law undertakings. The exact scope and intensity of the operational obligation is determined by the respective legislative purpose and the objectives of public service provision.
Scope and structure of the operational obligation
Content of the operational obligation
The obligated party is required to offer the operation in an orderly, continuous manner and in the agreed or prescribed scope, in accordance with legal or approved requirements. This includes, in particular:
- Continuous operation: The service or offer must be provided regularly and without interruptions, or at least according to the established timetable or operational plan.
- Minimum quality: The service provided must meet the statutory quality requirements and the current state of technology.
- Opening hours: Compliance with stipulated or approved opening or operating hours.
- Ensuring availability: Provision of necessary resources and infrastructure.
Exceptions and limitations
Derogations from the operational obligation are permitted when statutorily provided exceptions apply. This is often allowed in cases of force majeure, technical disruptions, hazard prevention, or with official authorisation in emergencies. The cessation or modification of operations may also be permitted in individual cases, but generally requires explicit official approval.
Supervision, monitoring, and enforcement of the operational obligation
Supervisory and monitoring mechanisms
Compliance with the operational obligation is supervised by the respective regulatory authority. This may include the trade office, the Federal Network Agency, or specialised regulatory authorities. Authorities have various tools for supervision, such as:
- Regular operational audits
- Reporting and notification obligations
- On-site visits and unannounced inspections
Sanctions in case of violation
A violation of the operational obligation may be sanctioned in various ways. Typical consequences include:
- Warnings and official orders
- Administrative enforcement (substitute performance, coercive fine)
- Administrative fines
- Revocation of approval or withdrawal of permit
- Liability for damages to third parties
Each measure depends on the severity of the violation and the legal interests affected.
Termination of the operational obligation
Grounds for expiration
The operational obligation generally ends upon:
- Expiry of the approval period or licence
- Return or legally effective withdrawal of approval
- Final and approved cessation of operations
In individual cases, the operational obligation may also cease subsequently due to statutory amendments or as a result of restructurings (e.g. privatisation, market entry of additional providers).
Operational obligation in selected sectors
Public local transport
In public local transport, transport companies are obliged under the PBefG to maintain regular services. Operational management must comply with the approved timetable. Deviations are only permitted in exceptional cases and must be reported to the relevant authority.
Energy sector
Electricity and gas network operators are obliged under the EnWG to provide permanent, secure, and efficient energy networks. The operational obligation here particularly includes security of supply and consumer protection.
Restaurants and accommodation sector
For restaurants, regular opening or specific operating hours can be mandated under the Trade Regulation Act. In cases of sustained violation of the operational obligation, withdrawal of the permit becomes relevant.
Significance and objectives
The operational obligation plays a crucial role in ensuring a reliable basic supply for the population and protects system-critical infrastructures from outages or unilateral discontinuation by the operator. It is an essential element of German economic administrative law and balances the interests of the general public with the private interests of the entrepreneur.
References
- Schmidt-Bleibtreu, Termination and End of Operational Obligations, NVwZ 2006, 1129 ff.
- Schenke, Administrative Legal Protection of Customer Groups, JZ 2004, 477 ff.
- Koch/Jäde in Landmann/Rohmer, Trade Regulation Act, Commentary, § 15 GewO
- Oechsler, Operational Obligation in the Encyclopedia of Legal Science, Volume XIX
Status: June 2024
Frequently Asked Questions
Who is obliged to comply with the operational obligation and on what legal basis does it rest?
In principle, both legal entities and individuals operating a public facility, a concession, or installations requiring approval that serve the public interest and the provision of essential services are subject to the operational obligation. The legal basis for this obligation is typically found in special regulations, such as the Act on Passenger Transport (§ 21 PBefG), the Trade Regulation Act (§ 15 para. 1 GewO), or the relevant state laws. The operational obligation also arises from public law licences and concessions, which require continuous and orderly operation as a secondary provision. The operational obligation ensures the continuous supply of the general public or specific user groups and ensures that the operator fulfils the responsibility for the proper functioning of the authorised activity.
What exceptions exist to the operational obligation and how are they governed by law?
Exceptions to the operational obligation can be granted temporarily or permanently by statute or authority, provided there are compelling reasons. The most common reasons for exceptions are economic unreasonableness, threats to public safety and order, unavoidable operational disruptions (such as force majeure), officially ordered cessations, or exceptionally approved interruptions in accordance with the relevant sector-specific laws. Legally relevant is the existence of a ground for exception, which must usually be applied for at the competent authority and expressly authorised by an official administrative act. Approval is always granted following an individual assessment and only if the public interest in an interruption outweighs the basic principle of secure provision.
What are the consequences for the operator for breaching the operational obligation?
Disregarding the operational obligation can have significant legal and economic consequences for the operator. Under administrative law, culpable or negligent violations generally lead to regulatory measures up to and including withdrawal of the licence or concession (§ 25 PBefG; § 49 GewO). In addition, significant administrative fines or coercive penalties may be imposed. Under civil law, the operator is liable for damages arising from the non-fulfilment of the operational obligation, and affected users may claim damages. The extent of liability is determined by the general principles of the German Civil Code (§ 280 ff. BGB) as well as by specific commercial or administrative law provisions. In especially serious cases, criminal liability may also arise (for example, in cases of intentional deception or endangering third parties).
How can a temporary suspension of operations be applied for?
A temporary suspension must be applied for at the competent authority, either informally or in a prescribed form. The application must usually include detailed reasoning and required evidence for the necessity of the interruption. Commonly requested details include, for example, the duration, the reason for the suspension, planned corrective measures, and an assessment of the impact on those affected. The authority examines whether the statutory or regulatory requirements for an exception are actually met and decides by decree. Unauthorised suspension without approval is generally considered an administrative offence and is strictly prohibited.
Does the operational obligation apply during exceptional events such as natural disasters or pandemics?
In the event of extraordinary occurrences, including natural disasters, pandemics, or other cases of force majeure, the operational obligation is generally not suspended, but only restricted. Legal provisions usually provide for adjustment or exception mechanisms in such situations, allowing the operator to temporarily restrict operations or take hazard prevention measures without violating the operational obligation. Nevertheless, the operator remains obliged to do everything reasonable to maintain provision as continuously as possible and to keep interruptions as brief as possible. Only when officially established and ordered by the authorities does a complete suspension of the operational obligation occur.
Can third parties sue for compliance with the operational obligation?
In principle, directly affected parties, especially users or customers of the relevant facilities, have a subjective public right of action for compliance with the operational obligation under certain conditions. Legal action can be taken against the operator (civil action) or against the licensing authority (administrative law) to enforce the commencement or resumption of operations. However, the right to sue is often limited and subject to strict procedural requirements, particularly where the operational obligation primarily serves the public interest rather than that of individuals. Such lawsuits are generally successful only when there is a right to use the facility that has been illegitimately denied.
How does the operational obligation relate to other statutory operator obligations, such as traffic safety?
The operational obligation is always linked to other operator duties, such as those relating to road safety or environmental protection. The principle holds that the operational obligation must not override or conflict with other statutory obligations. If there is a significant risk to the general public or certain protected legal interests, the operator must prioritise hazard prevention—if necessary, including (officially authorised) restriction or suspension of operations. In practice, operational obligations and other operator duties must always be balanced on a case-by-case basis and, where appropriate, coordinated with the authorities.
