Definition and Legal Bases of the Prohibition of Operations
Die Prohibition of Operations is an administrative law measure in which an authority legally prohibits a natural or legal person from operating a specific establishment, facility, or activity. It serves to protect particularly important public interests such as public safety and order, environmental and health protection, or the protection of jobs and consumers. The legal basis for the prohibition of operations can be found in numerous laws, such as the Trade Regulation Act, the Federal Immission Control Act, building codes, the Infection Protection Act, as well as state laws.
Areas of Application of the Prohibition of Operations
Trade and Crafts Law
In trade law, the prohibition of operations is regularly regulated in Section 35 of the Trade Regulation Act (GewO). A trade authority can prohibit the trader from exercising the trade if there are facts indicating the unreliability of the operator and, as a result, there are significant dangers for the public or third parties. A typical case involves repeated failure to pay taxes or social security contributions, violations of health or safety regulations, or lack of reliability within the business operation.
Requirements under Section 35 GewO
- Proof of the trader’s unreliability
- Endangerment of significant legal interests
- Discretion of the authority regarding the proportionality of the prohibition
Environmental and Immission Protection Law
In environmental law, particularly under the Federal Immission Control Act (BImSchG), the operation of a facility can be prohibited if the operator does not comply with the requirements for emission control or fails to fulfill necessary permits and conditions despite obligations. The competent authority is obliged to act accordingly in case of violations to prevent harm to the environment, safety, or health.
Regulations under BImSchG
- Prohibition in case of non-approved or deviating operations of plants (Sections 20, 21 BImSchG)
- Duties to Protect the Public and Affected Third Parties
Building Law
The prohibition of operations is also significant in building law, especially when buildings or facilities are used or operated without the required building permits. The building supervisory authority may issue a prohibition of use or operation in accordance with state building codes.
Forms of building supervisory prohibition
- Use without approval
- Endangerment of public safety due to structural defects
Infection Control and Health Protection
Within the framework of the Infection Protection Act (IfSG), businesses, facilities, or events may be prohibited for the protection of the population against infectious diseases. This measure is especially relevant in cases of acute infection risks, e.g., during epidemic situations.
Relevant provisions in the IfSG
- Section 28 IfSG: Protective measures to prevent the spread of communicable diseases
- Powers of the competent health authority
Requirements and Procedure for the Prohibition
Investigation and Hearing Procedures
Before issuing a prohibition order, the underlying facts must be comprehensively investigated (Section 24 Administrative Procedure Act). The party concerned must be heard before the measure is taken and is given the opportunity to respond to the accusations.
Form and Notification of the Order
The prohibition is regularly issued as an administrative act, which must be in written form and accompanied by proper reasoning. It is formally notified to the addressee and usually contains orders for the immediate cessation of operations or use.
Legal Consequences and Enforcement Measures
The effect of the prohibition order is that operations may no longer be continued from the time of delivery. If the party concerned does not comply with the order, enforcement measures, such as penalties for non-compliance or direct force (e.g., sealing of the facility), may be applied.
Legal Remedies and Appeals against the Prohibition of Operations
The party concerned is entitled to the general remedies of administrative law against a prohibition of operations. These include, in particular, objection and a claim before the administrative court. In cases of particular urgency, an application for interim relief can also be filed to restore the suspensive effect or to obtain orders to avert undue hardship.
Review of Proportionality
In court proceedings, the proportionality of the measure is among the aspects reviewed. The prohibition must be suitable, necessary, and appropriate to achieve the intended protective purpose. A complete and permanent prohibition is permissible only if less severe means are not available.
Practical Importance and Distinctions
Difference from Other Measures
The prohibition of operations must be distinguished from other public law measures, particularly from temporary restrictions (e.g., conditions, limitation of operating hours) or orders for improvements and repairs. The prohibition is regularly the last resort (‘ultima ratio’), used when other, less severe measures have not achieved the goal.
Effects on Existing Contracts and Employment Relationships
The prohibition of operations can have significant effects on existing contractual obligations (e.g., towards customers, suppliers) or on employment relationships. As a rule, it leads to the suspension of operations and employees may have to be released from work.
Summary
The prohibition of operations is a central instrument of administrative law, serving the protection of important public interests and affecting various areas of law – from trade law, health and environmental protection to building law. It presupposes serious violations of legal requirements, is applied after careful examination and always with regard for proportionality, and can be challenged with effective legal remedies. The measure has far-reaching consequences for the affected business and further legal and economic implications.
Frequently Asked Questions
What legal requirements must be met for the prohibition of operations?
The prohibition of operations, as a government intervention, always requires a legal basis. Such bases are often found in trade law, particularly in Section 35 of the Trade Regulation Act (GewO), but also in special regulations such as the Infection Protection Act. Legally necessary is a specific misconduct or situation, which must be examined by the relevant authority. This may be based on the unreliability of the business owner, significant breaches of existing law, or risks to the public. The decision must be proportionate—meaning it must be suitable, necessary, and appropriate to safeguard the respective protected interest, for example public safety or order. Furthermore, the right to be heard must be granted so that the party concerned has an opportunity to comment before the prohibition is issued. Finally, it must be noted that a prohibition must, in principle, be determined on a case-by-case basis; a blanket automatism is excluded.
Which authority is responsible for the prohibition of operations?
Responsibility for the prohibition of operations generally lies, depending on the respective federal state and the relevant area of law, with local regulatory authorities, trade offices, or specially designated specialist authorities (e.g., the public health office for infection protection). The specific jurisdiction arises from the respective state law provisions for the implementation of trade law or the relevant specialist laws. Under nationwide special regulations, such as the Infection Protection Act, supra-regional authorities may also have corresponding powers of intervention.
To what extent does the prohibition of operations apply and how is it enforced?
The prohibition of operations is regularly limited in scope to the specific commercial activity or the business itself – or specified business premises. It may be pronounced either temporarily or permanently. Enforcement of the prohibition generally takes place by means of an administrative act. A deadline is often set within which the operation must be discontinued. If the concerned party does not comply, the authority may use direct force, such as sealing business premises, substitute performance, or, in extrema, eviction and closure. Additionally, penalties for non-compliance may be imposed if provided for by state law.
What legal remedies are available against a prohibition order?
The general legal remedies of administrative law are available to the party affected by an official prohibition order, especially the objection and subsequent action before the administrative court. The objection must be lodged with the competent authority within the statutory time limits, whereupon the authority must review the measure. If the objection is not granted, a claim can be filed. In urgent cases, an application for interim legal protection (issuance of a restraining order) can also be made to restore the suspensive effect or to suspend immediate execution.
Under what conditions can operations be resumed?
Resuming operations after a prohibition generally requires a formal application to the competent authority. The prerequisite is that the reasons leading to the prohibition have demonstrably been remedied. This can be achieved, for example, by establishing legal compliance, proving reliability, demonstrating health safety, or fulfilling all requirements under trade law. The authority must examine and document, within its discretion, whether the prerequisites for resumption are met. A legal entitlement to resumption exists if the reasons for the prohibition have indeed ceased to apply.
What are the consequences for existing contracts with third parties if operations are prohibited?
The legal prohibition of operations has no direct effect on existing private law contracts with third parties; these contracts generally remain in force. However, legal impossibility of performance or disruption of the basis of the contract under Sections 275, 313 of the German Civil Code (BGB) may lead to an adjustment or termination of contracts. Whether and to what extent this applies depends on the individual case, particularly on whether the prohibition is considered a risk attributable to the business owner or as outside their sphere of influence. Usually, the prohibition order itself does not contain provisions on this matter, so the civil law clarification is up to the courts in case of dispute.
Can the prohibition of operations also be imposed for a fixed period?
Yes, legally it is possible and often appropriate to impose the prohibition of operations for a limited period, i.e., for a specific time or under certain conditions. A limitation may be particularly appropriate if it is expected that unreliability will be remedied or a danger will be temporarily eliminated. The authority must examine, within its discretion, whether a temporary instead of a permanent prohibition is sufficient as a proportionate measure in the specific case. This is also expressly stipulated in the order itself, possibly with the option to extend or permanently lift the prohibition after the deadline if the grounds for prohibition persist.
