Concept and Definition of Market Regulation in Trade Law
Die Market Regulation in Trade Law refers to the legal framework that governs the implementation and organization of markets, fairs, exhibitions, annual fairs, and similar events. At the core of market regulation is the assurance of an orderly, fair, and secure operation of the market. Market regulation includes public and private law provisions, which are based, among others, on trade law, regulatory law, and relevant municipal statutes. It governs the rights and obligations of market organizers as well as participating traders, visitors, and administrations.
Legal Foundations of Market Regulation (Trade Law)
Trade Regulation Act (GewO)
The central federal law for market regulation is the Trade Regulation Act (GewO). Sections 64 to 68 GewO expressly address fairs, exhibitions, markets, and public festivals and define the requirements and procedures for holding such events. In particular, the following types of markets are distinguished:
- Weekly markets (§ 67 GewO)
- Annual fairs (§ 68 GewO)
- Specialty markets (§ 68a GewO)
- Wholesale markets (§ 69 GewO)
- Public festivals (§ 60b GewO)
In addition, the Trade Regulation Act provides certain privileges for so-called privileged market participants, such as exemption from the itinerant trade license requirement (§ 55 GewO).
Market Privileges and Market Freedoms
Market events, which are approved as public markets under the Trade Regulation Act, are subject to special legal advantages:
- Market Freedoms: For example, commercial participants may offer goods without an itinerant trade license (§ 55a para. 1 no. 6 GewO).
- Market Privileges: Easements regarding shop opening laws, exemptions from Sunday and holiday regulations (e.g., opening on Sundays and public holidays).
Municipal Statutes and Regulations
Municipalities have the right to issue supplementary market regulations in the form of statutes or ordinances . These particularly govern details such as location, time, duration, stall sizes, safety requirements, fee schedules, hygiene standards, and the admission procedure for stall operators. Municipal market regulations supplement and specify the requirements of federal law and serve the legally compliant implementation at the local level.
Admission Procedure and Market Approval
Application and Formalities
The holding of a market requires official approval, known as market approval. The competent authority (usually the public order office or economic affairs office) reviews upon application whether the legal requirements are met. The application must contain information on:
- Type and scope of the market
- Venue and time of the event
- Number and selection of market participants
- Measures for hazard prevention and compliance with public order
Approval Notice and Legal Effects
With the approval according to § 69 GewO, the events are legally recognized as a market, fair, exhibition, or similar. The market approval is an administrative act and can be issued with ancillary provisions, especially requirements related to safety, hygiene, or traffic regulation. The approval also results in the application of market privileges and partially exempts participants from other regulatory obligations.
Regulatory Aspects and Market Supervision
Safety and Regulatory Requirements
Within the framework of market regulation, there are various requirements for safety and order, such as:
- Fire safety and rescue routes
- Food Hygiene Regulation (LMHV) when selling food
- Noise protection regulations
- Traffic safety obligations
- Compliance with youth protection and non-smoking regulations
The monitoring and enforcement of these requirements fall to the responsible authorities, who regularly conduct inspections during market operations.
Sanctions for Violations
Violations of the market regulation and of market approvals can be sanctioned by administrative enforcement, fines or exclusion from market operations. Serious or repeated violations can lead to revocation of the market approval.
Private Law and Competition Law Dimensions
Contract Law Between Market Operator and Stall Operator
The relationships between market operators and participating traders are generally governed by private law stall rental agreements . These include provisions regarding stall size, rent, payment terms, liability, as well as the termination of the agreement and obligations during market operations.
Aspects of Competition Law
Access to markets is to be granted according to the principle of competition neutrality . Unreasonable discrimination or arbitrary rejections in the allocation of stalls can be inadmissible under the General Equal Treatment Act (AGG) as well as under competition law. In addition, the rules against unfair competition (UWG) must also be observed on markets.
Special Types of Markets and Their Legal Particularities
Weekly Markets
Weekly Markets are mainly for the regular supply of the population with food, flowers, and other everyday goods. They are subject to special hygiene and traffic regulations and benefit from market freedoms under § 67 GewO.
Specialty Markets and Annual Fairs
Specialty markets are held irregularly and focus on specific goods or services. Annual fairs are usually recurring annual events with a wide range of goods. The requirements for access and procedures for approval differ accordingly.
Fairs and Exhibitions
Fairs und Exhibitions are events for the presentation and promotion of particular business sectors and are also subject to approval under the Trade Regulation Act. In addition, industry-specific regulations apply (e.g., exhibition supervision law, product safety law, if applicable).
Summary and Importance of Market Regulation in Trade Law
Market regulation in trade law forms a comprehensive network of federal and state laws, ordinances, and municipal statutes that ensure the lawful organization and oversight of markets and similar events. Its purpose is to balance economic interests, safeguard competition, consumer and public welfare, and ensure public order and safety. Due to its diversity and complexity, market regulation is a key aspect of regulatory trade law and contributes to the effectiveness and legal certainty in general market activity.
Frequently Asked Questions
Who is responsible for the issuance and supervision of the market regulation under trade law?
In Germany, the issuance and supervision of market regulation under trade law is usually the responsibility of the respective competent municipal regulatory authorities (e.g., city administration, public order office). These authorities decide on the admission of markets, monitor compliance, and ensure that the market regulation provisions as well as other regulatory requirements—such as stall safety, hygiene, traffic safety, and noise emission—are observed. In the event of violations of the market regulation, they may take regulatory action, such as imposing fines or, in the event of repeated violations, issuing market bans or withdrawing stall permits. Their supervisory duty includes both the preventive review of requirements for market participation and the ongoing monitoring of market operations.
What rights and obligations do market traders have under the market regulation?
Market traders, i.e., commercial participants of a market, have numerous rights and obligations under the market regulation. Rights particularly include the right to an allocated stall and the participation in market activities according to the open and transparent criteria of the market regulation. Obligations include, among others, the proper conduct of business activities, adherence to setup and dismantling times, compliance with hygiene regulations (e.g., food law), and compliance with safety requirements, such as stand stability and fire protection. Furthermore, market traders are often obliged to be considerate of residents (e.g., noise protection), cooperate in waste prevention and disposal, and comply with all other legal requirements (e.g., tax law or the Product Safety Act) in their activities. In case of violations, they risk sanctions depending on the severity of the offense, up to and including loss of their stall.
What legal foundations determine the structure of market regulations?
The structure of market regulations is largely based on the Trade Regulation Act (GewO), particularly §§ 66 et seq. GewO, which regulate the so-called ‘established market,’ such as weekly markets, annual fairs, and specialty markets. Additional federal regulations apply, for example, the Food and Feed Code (LFGB) for food sellers or the Federal Immission Control Act (BImSchG) for noise protection. Moreover, municipalities are permitted to issue detailed regulations in the form of market and site regulations within the scope of their autonomy, which concretize essential aspects such as stall allocation, fees, safety requirements, and opening and operating hours. Frequently, different areas of law overlap, so that market traders must also observe general trade, tax, hygiene, and regulatory police regulations in addition to the market regulation.
How is the allocation of stalls regulated in compliance with the law?
The allocation of stalls must be carried out according to the principles of equal treatment, transparency, and freedom from arbitrariness. This means that allocation criteria—such as by order of applications received (first come, first served), by a rotation system, or based on certain qualifications or product diversity—must be clearly regulated in the market regulation and comprehensible for all applicants. A violation of these principles can render the allocation unlawful and, if necessary, be contested by objection or legal action before an administrative court. The preferential treatment of long-standing market traders is generally permissible, provided it is objectively justified and reasonable access opportunities for new suppliers exist. Stall operators have the right to information about the selection criteria and must receive a comprehensible, written explanation in case of stall rejections.
In which cases may participation in a market be legally prohibited?
A prohibition of market participation can take place for various legal reasons. According to § 70 GewO, exclusion is mandatory if the applicant or participant does not meet the statutory requirements, for example, if the necessary permits are missing or if there have been serious administrative offenses or criminal acts in the commercial sector. Repeated violations of market regulations—such as disregarding hygiene regulations, exceeding market hours, or causing significant disturbance—can also lead to temporary or permanent exclusion. In crisis situations, such as epidemics or other dangers to public safety and order, a market may even be canceled or interrupted entirely. Authorities are required to provide a detailed written explanation of the reason for a prohibition or measure and to give the affected parties an opportunity to comment.
What legal remedies are available against decisions of the market supervisory authority?
Decisions of the competent market supervisory authority, such as regarding market admission, allocation of stalls, or exclusion from the market, can be challenged with the legal remedies provided for in administrative law. Initially, an objection can be filed against a negative decision. If the objection is unsuccessful, an administrative court action can be brought. It is also possible to apply for urgent legal protection (e.g., a temporary injunction) if a legal remedy is not decided in time and the market trader faces significant disadvantages as a result. The court will particularly assess whether the legal and statutory requirements were properly applied and whether the authority’s decision is free from discretionary errors. The deadlines and requirements for the respective legal remedies are specified by national administrative procedure laws and the relevant market statutes.
