Definition and legal classification of ‘Private’
The term ‘Private’ is not a strictly defined term in German law, but it is used in many areas of the law. Generally, it refers to a person or legal entity that is outside the public administration or government sector and is not directly determined by public law regulations or institutions. In this sense, ‘Private’ is distinguished from concepts such as the state or public sector and plays a key role in both private law and public law.
Distinction between ‘Private’ and public law entities
Private law and public law legal norms
The separation of private and public persons or entities forms the basis of the so-called dual structure of the German legal system, consisting of public law and private law. Private law (civil law) governs the legal relationships between private legal subjects, while public law governs the relationships between the state and citizens as well as between state institutions.
Private actors operate under private law on an equal footing, meaning they interact on the same legal level. In contrast stands the conduct of the public sector, which is authorized to act by means of administrative acts within the framework of a hierarchy (subordination theory).
Legal subjects and their classification as ‘Private’
In particular, private individuals include natural persons as well as legal entities under private law—such as registered associations (§ 21 BGB), limited liability companies (GmbH, § 1 GmbHG), or stock corporations (AG, § 1 AktG). The distinction is especially relevant for questions of liability, jurisdiction, and the applicability of certain legal provisions.
By contrast, legal entities under public law—such as corporations, institutions, or foundations under public law (e.g., universities, chambers of commerce and industry)—are not considered Private.
Legal significance in civil law
Freedom of contract in private law
In civil law, the status as ‘Private’ forms the basis of private autonomy. This particularly includes freedom of contract, meaning that private parties may, within legal limits, independently conclude contracts and freely determine their contents (see § 311 BGB). This applies both to the formation and to the termination or modification of contracts.
Ownership and private property
The German Basic Law explicitly protects property and inheritance rights, with private individuals being the holders of these fundamental rights (§ 903 BGB, Art. 14 GG). Private persons may freely acquire, use, encumber, and dispose of property.
Liability and responsibility of private parties
Private individuals, whether natural or legal persons, are subject to civil liability in legal transactions, for example, for damages arising from unlawful acts (§§ 823 ff. BGB) or breaches of contract (§ 280 BGB). The rules on liability are based on principles of fault or— in certain cases— strict liability, depending on the specific risks involved.
Legal status of private individuals under public law
Private parties as administrative agents
Under certain circumstances, private individuals may also perform public functions, for example through delegation by the state. In such cases, a private party may be granted authority to exercise sovereign powers in their own name and with binding effect externally (see Art. 33 para. 4 GG). Nevertheless, the fundamental character of a private party as a non-state entity remains intact, with corresponding legal implications, particularly regarding governmental supervision.
Private individuals in administrative procedures
In administrative procedures, private parties are typically involved as participants, applicants, objectors, or as persons affected by administrative acts. The legal basis for the participation of private individuals is provided by the Administrative Procedure Act (VwVfG), which sets out the rights and obligations of private parties in administrative procedures.
Private parties and the law of public procurement
In public procurement law, private parties play a crucial role as contractors. Public clients are obliged to conclude certain contracts with private parties through transparent and non-discriminatory procurement procedures (e.g. GWB, VgV, VOL/A). The legal position of private parties is strengthened by the principle of equal treatment and by the right to effective legal protection.
Private parties and constitutional law
Capacity to hold fundamental rights as private parties
Fundamental rights are generally granted to private persons, i.e., natural persons and, under certain conditions, legal entities under private law (see Art. 19 para. 3 GG). The distinction between private persons and holders of public authority is decisive here, as the latter cannot invoke fundamental rights (fundamental rights are protective against state action).
Protection of the ‘private sphere’
The Basic Law protects privacy and private life through various fundamental rights (e.g., Art. 2 para. 1 GG – general freedom of action, Art. 10 GG – confidentiality of correspondence, posts, and telecommunications). Private individuals can invoke these protection rights against the state.
Private parties in international and European law
Private parties as addressees of law in private international law
In private international law, a distinction is also regularly made between private parties and states, especially in cross-border matters. Private parties may become parties to international contracts but—unlike states—are subject to the national law of the relevant court of jurisdiction or the law agreed in the contract.
Private parties and the European principle of equal treatment
In European law, private parties enjoy extensive protection, for example in the internal market (freedom of establishment, freedom to provide services, Art. 49 and 56 TFEU). The European Union obliges member states to ensure equal treatment and non-discrimination of private parties in economic transactions.
Conclusion and summary
The term ‘Private’ holds significant importance in German and European law. As legal subjects, private individuals bear their own rights and obligations and, in many areas of the law—from private law to public law, as well as constitutional and international law—they are clearly to be distinguished from public authorities and the state. This distinction impacts the application of laws, liability, fundamental rights protection, and the allocation of public law powers. Understanding the term ‘Private’ and its legal implications is fundamental to understanding numerous legal issues and fields.
Frequently Asked Questions
Are there special legal requirements for the use of private land?
The use of private land in Germany is subject to strict legal requirements, particularly those set out in the German Civil Code (BGB), the Building Code (BauGB), as well as state-specific regulations. As a landowner, you are generally entitled to use your property at your own discretion (§ 903 BGB). However, numerous restrictions apply: construction and changes in use usually require official approval, especially in cases of planned construction activities. Care must be taken to ensure that the use of private land does not disproportionately affect the rights of third parties—such as neighbors—which includes, for example, emissions like noise or odors. Furthermore, public law requirements, such as environmental protection regulations, must not be violated. Violations of these requirements may result in neighbor complaints, official fines, or requirements for corrective action.
What legal provisions apply to the protection of privacy on private property?
The protection of privacy on private property is a constitutionally protected right in Germany, derived primarily from Art. 13 (inviolability of the home) and Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG (general right of personality). Based on this, third parties are generally prohibited from entering private property without the owner’s consent. The right to one’s own image and the right to informational self-determination must also be observed in the private sphere; for example, taking or publishing photos of the property owner without their express consent is generally inadmissible (see § 22 KunstUrhG). In the event of a violation of privacy, the injured party may assert civil claims for injunctive relief and, where appropriate, damages. In cases of particularly serious infringements, criminal consequences may also be considered (e.g. unauthorized entry under § 123 StGB).
Who is liable for accidents on private property in legal terms?
In the event of an accident on private property, the owner or possessor of the property is generally liable due to the so-called duty to maintain safety (§ 823 BGB). This duty requires that sources of danger on the property, which could cause harm to the life, health, or property of third parties, must be adequately secured or removed. Typical examples include poorly lit paths, icy surfaces in winter, or structural defects. If property owners or authorized users negligently or intentionally breach this duty and damage results, they may be liable for damages. However, liability can be limited in certain cases, for example if the injured party acted with gross negligence or if contributory negligence on the part of the owner can be proven.
What notification and permitting obligations exist when renting out private residential property?
Renting out private residential property is subject to several legal notification and permitting requirements. First, the landlord must provide the tenant with a confirmation of residence so that the tenant can comply with their statutory registration obligation under § 19 of the Federal Registration Act (BMG). In the case of temporary rentals—such as holiday apartments—additional special rules may apply. In many municipalities, a change-of-use permit is required, since permanent or repeated short-term rentals are subject to local housing protection laws. In the case of commercial rentals, tax aspects—such as registration as a commercial landlord with the tax office—must also be observed. Violations of these duties may result in fines and, in individual cases, a prohibition on further rentals.
What special legal restrictions apply to private video surveillance?
Private video surveillance is generally permissible, but it is subject to strict data protection regulations, particularly under the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG). Surveillance may cover only one’s own private property (e.g. one’s own plot of land) and must not capture public pathways or neighboring properties. Individuals affected must generally be appropriately notified of the video surveillance. Recordings may only be made for the purpose of protecting legitimate interests, such as safeguarding property against burglary. Failure to comply with these rules can result in significant fines imposed by data protection authorities and civil claims for injunctive relief by affected individuals.
To what extent is the use of private property for professional purposes legally restricted?
The use of private property for professional or commercial purposes is legally particularly sensitive. According to respective state building codes and the Building Code (BauGB), the use and structural changes to a residential building or private property require approval when they exceed ordinary residential use. Neighboring interests, such as the duty to show consideration (§ 15 BauNVO) or emissions protection law, must often also be taken into account. For example, regular use of a private house as a medical practice, office, or for customer traffic may constitute a change of use requiring official approval and may trigger construction and commercial regulations. Violations may result in fines, usage bans, or orders to restore the original condition.
Who is allowed to access private land registry data in Germany?
In Germany, access to the land register is permitted only to a limited group of persons for reasons of data protection and property rights. According to § 12 of the Land Register Ordinance (GBO), access is granted only to those who demonstrate a ‘legitimate interest.’ Typically, this includes the owner, holders of rights in the property (e.g. mortgagees), notaries, lawyers, and authorities in fulfillment of their statutory duties. Pure curiosity or economic interest is not sufficient. Each application for access is reviewed by land registry offices to determine whether the interest is legitimate. Unauthorized access to private land registry data is unlawful and may result in data protection sanctions.
