Definition and legal basis of itinerant trade
Das Itinerant trade is a term established in German trade law that refers to commercial activities carried out outside a fixed place of business or without such a place. Itinerant trade is particularly characterized by its mobility and is subject to its own statutory regulations, primarily in the Trade Regulation Act (Gewerbeordnung, GewO). Key provisions for itinerant trade are found in Sections 55 et seq. of the GewO.
Distinction from other forms of trade
In German law, itinerant trade is differentiated from stationary trade businesses as well as from traveling trade and stationary trade. While stationary trade involves the continuous use of a fixed place of business, itinerant trade occurs in public spaces, from door to door, or in changing locations. The precise distinction is centrally important for the application of the respective legal provisions.
Itinerant and traveling trade
The term “itinerant trade” is often used synonymously with “traveling trade”. Legally, both fall under the same regulatory concept in Sections 55 et seq. GewO. The law officially refers to traveling trade, but in older legal texts or in common usage, the term itinerant trade is used.
Requirements and areas of activity of itinerant trade
Activities within the scope of itinerant trade
The activities carried out as part of itinerant trade include:
- Sale of goods or services outside of business premises, particularly on public streets, squares, from door to door or at markets,
- Receiving and arranging orders,
- Offering shows and other commercial performances at changing locations.
Activities conducted off-premises, temporary sales stands, and door-to-door sales are practical manifestations of itinerant trade.
Activities not covered
The following do not fall under itinerant trade:
- Commercial activities within a permanently established and assigned business space of the trader,
- Activities that are exempt from authorization due to other statutory exemptions.
Permit requirement and traveling trade card
Permit requirement under the Trade Regulation Act
Engaging in itinerant trade generally requires official permission, the so-called traveling trade card (Section 55 (2) GewO). This card must be applied for at the responsible authority, usually the local regulatory or trade office.
- Personal reliability: Issuance of the traveling trade card requires that the applicant is reliable; relevant prior convictions or tax offenses may lead to rejection.
- If applicable, proof of expertise: In certain trades, such as the security business, it is also necessary to provide proof of legally required expertise.
Exceptions to the permit requirement
The law provides for exceptions to the permit requirement for certain activities and groups of people (Section 55a GewO). These include, for example:
- Sale of milk, eggs, vegetables, and fruit from own cultivation
- Activities at weekly markets and trade fairs, provided a special permit (market trader authorization) is present
Each exception is subject to strict requirements and is regulated in detail in the GewO.
Obligations and restrictions in itinerant trade
Notification obligations
The intention to carry out itinerant trade must be notified in writing to the competent authority before commencing the activity. The notification must include information regarding the type of trade, scope of validity, and the persons involved.
Obligation to carry identification
During the conduct of the trade, the traveling trade card must always be carried and presented to authorities and potential customers upon request.
Special behavioral obligations
Traders are subject, in addition to the general provisions of trade law, to special obligations towards their customers, such as the immediate fulfillment of concluded contracts and compliance with specific regulations on advertising and business conduct.
Youth labor protection and market protection
Youth protection provisions and market protection rules apply fully to itinerant trade. For example, certain goods may not be supplied to minors, and existing weekly markets and similar events must be respected.
Criminal and fine provisions
Consequences of violations
Violations of trade law provisions (e.g., conducting business without a traveling trade card, lack of notification, breach of identification obligations) can be prosecuted as administrative offenses under Section 146 (1) no. 2 GewO.
Administrative offenses
Violations generally constitute administrative offenses. In particularly serious cases, such as repeated significant violations, the trade license may be revoked.
Tax treatment of itinerant trade
Operators of itinerant trade are subject to the general tax regulations. Income tax, value-added tax, and, if applicable, trade tax must be observed. The mobile nature of the business may have an impact on the allocation of business premises and the type of taxation.
Summary
Itinerant trade forms a distinct, legally clearly defined area of German trade law with extensive regulations regarding permit requirements, notification procedures, exceptions, ongoing operational obligations, and sanctions for legal violations. Comprehensive knowledge and compliance with these provisions are indispensable for the legal and sustainable operation of itinerant trade.
Frequently asked questions
What legal requirements must be met to conduct itinerant trade?
To engage in itinerant trade, a special official permit, the so-called traveling trade card, is generally required pursuant to Section 55 GewO (Trade Regulation Act). The traveling trade card is issued by the responsible trade authority of the applicant’s place of residence or habitual abode. Various documents are required for the application: a valid identity card or passport, a current certificate of good conduct from the police, a tax clearance certificate from the tax office, an extract from the central trade register, and, where applicable, proof of professional qualification and evidence of payment of the relevant fee. The responsible authority particularly examines the personal reliability of the applicant within the meaning of the Trade Regulation Act. Refusal is possible if there are facts indicating unreliability on the part of the applicant, such as relevant criminal records or significant tax arrears.
In which cases is a traveling trade card not required for itinerant trade?
According to Section 55a GewO, there are numerous exceptions where itinerant trade may be carried out without a traveling trade card. Such exceptions exist especially for certain activities and professions, such as offering goods at public markets under the so-called “market privilege” (Section 55a (1) no. 2 GewO), for showmen or certain services (e.g., the collection of scrap material), provided they are covered by the special regulations. An exception also applies to craft businesses that perform short-term, proven jobs outside their premises (so-called craftsman’s exception). However, it is advisable to always check in individual cases whether an exception applies, as the regulations are narrowly interpreted and types of services must be regularly reviewed.
What obligations exist in terms of business operations within the itinerant trade?
Operators of itinerant trade must comply with a variety of legal obligations. These include, first and foremost, the obligation to carry and present the traveling trade card during business activities pursuant to Section 60 GewO. When marketing goods or providing commercial services, trade law protective provisions and statutory consumer protection requirements must be observed, in particular the Price Indication Ordinance (PAngV), the information obligations under the BGB (Civil Code), and, if applicable, special regulations, for example, under food or crafts law. Furthermore, itinerant traders are subject to the generally applicable tax registration and payment obligations and, if necessary, must comply with special requirements for bookkeeping or cash register systems. When operating in public spaces, the regulations on special uses or space allocation must also be observed.
What special legal requirements apply to the sale of foodstuffs in itinerant trade?
If food is sold in itinerant trade, the operator is subject not only to trade regulations but also to food law provisions, particularly the Food and Feed Code (LFGB) and EU Regulation (EC) No. 852/2004 (Food Hygiene Regulation). Specifically, proof of training under the Infection Protection Act (IfSG) is required for the handling of perishable foodstuffs. Compliance with all hygiene regulations is regularly monitored by the responsible supervisory authorities. Requirements regarding the transport, storage, and display of goods must be strictly observed, especially at mobile sales points. Violations may result in substantial fines or even the revocation of the traveling trade card.
How is official monitoring conducted and what sanctions may be imposed for violations of trade law provisions in itinerant trade?
Supervision of itinerant trade is the responsibility of the local regulatory authorities, who may conduct both spot checks and cause-related inspections. They especially check whether a valid traveling trade card is carried and whether other trade and technical regulations are complied with. Violations of traveling trade regulations, such as the absence of a valid traveling trade card, failure to comply with behavioral requirements, or repeated breaches of special statutory provisions (e.g., hygiene regulations), constitute administrative offenses and may be punished with warnings, fines, or even trade prohibition proceedings pursuant to Section 35 GewO. Serious repeated violations can result in confiscation and prohibition of further commercial activities.
What legal obligations apply to the notification and deregistration of itinerant trade?
An itinerant trade must be reported to the competent trade authority at commencement, provided that commencement is not already documented by issuance of the traveling trade card (Section 14 GewO). Any significant change, such as in activities performed or proprietor, must be reported without delay. Upon termination of the trade, there is an obligation to formally deregister with the competent authority and to return the traveling trade card. Failure to do so may result in enforcement measures or regulatory fines. Deregistration is important not only from a trade law perspective but also from a tax viewpoint, as otherwise tax obligations and potential back payments may arise.
What are the particular liability aspects to consider in itinerant trade?
Operators of itinerant trade are liable, like other business operators, under the general provisions of civil law, particularly for damages under Sections 823 et seq. BGB. However, particularities often arise from the fact that the operator is mobile and frequently operates in public traffic areas. This imposes increased duties of care regarding traffic safety (e.g., safe setup of mobile stands or equipment), so that injuries to passersby or damage to third-party property can result in liability claims. The Product Liability Act (ProdHaftG) also applies to defective goods sold in itinerant trade. It is strongly advised to obtain sufficient business liability insurance to minimize liability risks.
