Definition and Fundamentals of the Prohibition of Professional Practice
Die Prohibition of Professional Practice is a significant instrument of German administrative and professional law. It refers to an order by authorities or the courts, temporarily or permanently prohibiting the exercise of a specific profession, professional activity, or commercial occupation. The aim of this measure is to protect important public interests, such as maintaining public security and order, safeguarding the health and assets of the population, and ensuring integrity and reliability in regulated professions.
Below, the legal basis, prerequisites, various statutory regulations by professional groups, the procedure, consequences, and legal remedies in connection with the prohibition of professional practice are presented in detail.
Legal Foundations
The prohibition of professional practice is regulated both in public law and in professional statutes. It is found in particular in trade law (§ 35 GewO), in special professional statutes (e.g., doctors, pharmacists, architects), in civil service law, as well as in criminal law. The regulations cover both self-employed and employed activities.
Trade Regulation Act (§ 35 GewO)
One of the central provisions is § 35 of the Trade Regulation Act (GewO). This entitles the competent authority to prohibit a tradesperson from exercising or managing the business if facts justify the assumption that the tradesperson constitutes a significant threat to public security or order. The provision also serves to protect the general public and third parties from unreliable tradespersons.
Professional Law Context
For numerous regulated professions, there are specific rules that provide for or enable a prohibition of professional practice under certain conditions. For example, the respective state-level health professional laws (doctors, pharmacists, dentists, psychotherapists) and the Federal Lawyers’ Act (BRAO) contain similar regulations.
Other Legal Provisions
Relevant provisions on the prohibition of professional practice are also found in other laws, for example:
- § 70 Criminal Code (StGB): Prohibition of exercising a profession, trade, or business.
- § 7 Crafts and Trades Regulation Code (HwO)
- § 16 Federal Notaries Act (BNotO)
- § 132c Criminal Code (StGB) for misuse of professional titles
Requirements for Prohibition
The prohibition of professional practice always requires a legal basis and the existence of specific conditions set forth in the law. These vary depending on the relevant provision and professional field.
Reliability and Aptitude
A central criterion for prohibition is the lack of reliability or personal aptitude of the person concerned. Unreliability is present, for example, when facts indicate that the individual does not possess the necessary care or integrity for professional practice, such as in cases of repeated legal violations, criminal offenses, irregularities in business transactions, or the delay of insolvency filings.
Protection of Significant Legal Interests
An important case for application is endangerment of the common good. This includes the protection of health, life, property, or other significant legal interests of third parties or the public. In a professional context, this is especially relevant for occupations with special responsibility, such as health professions, the security industry, or the transport sector.
Criminal Probation Conditions
The Criminal Code further provides that courts may impose a professional ban as a legal consequence of a conviction if there is a risk that the person concerned may commit further serious offenses while practicing their profession (§ 70 StGB).
Examples by Professional Groups
Tradespeople
The GewO allows authorities to issue a prohibitive order in cases of unreliability, repeated administrative offenses, criminal acts, or serious deficiencies in business operations.
Health Professions
Within the scope of medical professions, the relevant state health laws may provide for prohibitions, for instance, due to gross breaches of duty, repeated misconduct, addiction issues, or other unfitness for professional practice. The same applies to pharmacists, dentists, and other health professionals.
Liberal Professions
For members of certain liberal professions (e.g., architects, tax advisors, notaries), there are their own professional codes and chamber laws governing bans or prohibitions on professional practice.
Craft Professions
Members of crafts that require a license may, in the case of serious breaches of duty and in accordance with the Crafts and Trades Regulation Code, be excluded from practicing certain activities.
Procedure for Prohibition of Professional Practice
The prohibition of professional practice is issued in administrative proceedings or, in the case of criminal professional bans, by judicial decision.
Administrative Procedure
As a rule, the measure is ordered by the competent administrative authority. Before issuing the prohibition, affected persons must be heard to provide a statement and, if necessary, evidence of their reliability or aptitude (§ 28 Administrative Procedure Act – VwVfG).
The procedure ends with a reasoned administrative act. Such an act may be subject to objection and, subsequently, to an action before the administrative court under administrative procedural law.
Judicial Procedure
Professional bans under criminal law are imposed in the judgment and are ancillary penalties. Here, too, the person concerned has legal remedies through the criminal courts.
Consequences and Effect of the Prohibition
The prohibition takes immediate effect and means that the individual may no longer exercise their profession or the relevant activity. Violations often constitute an administrative offense or even a criminal act.
Additional Consequences
The prohibition is often associated with further professional law measures or entries in official registers. In addition, the authorization to use certain professional titles or membership in a professional association often lapses automatically.
Revocation and Time Limits
Prohibitions are usually limited in time or may be revoked upon request if the reasons for their imposition have lapsed. A right to review generally exists after a minimum period has elapsed or if circumstances have changed.
Legal Protection for Affected Persons
As with all unfavorable administrative acts, affected persons have comprehensive legal remedies. This includes an objection, action for annulment, and applications for interim legal protection before administrative courts. In criminal law, the prohibition can be reviewed by appeal or revision.
Prohibition of Professional Practice in the International Context
Similar regulations exist in some EU countries to ensure reliability, or at least mechanisms for mutual information-sharing about prohibitions on professional activities, to increase consumer protection and the integrity of the single market (e.g., EU databases).
Literature and Further Information
- Trade Regulation Act (GewO)
- Professional Laws of the Federal States and the Federation
- Administrative Procedure Act (VwVfG)
- Criminal Code (StGB)
- Crafts and Trades Regulation Code (HwO)
- Synopsis: [Link to statutes and administrative regulations, where permitted]
The prohibition of professional practice thus constitutes a fundamental pillar for ensuring high-quality, safe, and responsible professional activity in the public interest. It is clearly defined in law, subject to strict preconditions, and can be comprehensively reviewed through extensive legal remedies.
Frequently Asked Questions
When can a prohibition of professional practice be legally imposed?
A prohibition of professional practice can only be imposed under specific legal conditions. As a rule, it occurs when a person, due to their behavior or personal circumstances, is deemed unreliable within the meaning of the regulations applying to the given profession. This may be the case, for example, if serious criminal offenses are committed directly related to the professional activity, or if breaches of professional duties are established, such as endangering the public, violating requirements, or persistent breaches of duty. The exact legal basis is usually found in trade or professional law special statutes, for example, § 35 GewO for tradespeople or § 70 StBerG for tax advisors. An administrative act prohibiting professional practice is issued in a formal procedure, often only after a prior hearing of the person concerned.
Who is responsible for ordering the prohibition of professional practice?
As a rule, the competent supervisory or regulatory authorities are responsible for ordering a prohibition. This may vary by profession: for tradespeople, it is usually the local trade office or regulatory authority; for professional chamber occupations such as doctors, lawyers, pharmacists, or tax advisors, it is the relevant chambers or state authorities. Competence is determined by the relevant legal provisions and can also differ within federal states.
What are the legal consequences of a prohibition of professional practice for those affected?
Upon imposition of the prohibition of professional practice, affected persons may no longer exercise their professional activity—if clearly covered by the prohibition decision—either independently or in a managerial position. This generally includes both direct practice and indirect exercise, for example through representatives or third parties. Violations frequently constitute an administrative offense or even a criminal act and can be punished by substantial fines or imprisonment. Furthermore, the prohibition may affect other licenses and permits, such as medical licenses or business permits.
Is there a legal remedy available against the prohibition of professional practice?
Affected individuals generally have legal remedies against a prohibition of professional practice. The usual legal route is to file an objection and, if necessary, a subsequent action at the competent administrative court. In particularly urgent cases, an application for interim legal protection can be filed to restore the suspensive effect of the objection or action (§ 80(5) VwGO). A successful challenge requires, in particular, that unreliability has not been sufficiently proven or that the authority’s discretion was exercised improperly.
Under what conditions can the prohibition of professional practice be revoked?
Revocation of a prohibition of professional practice is generally possible if the reasons that led to the prohibition no longer exist, in particular if the ‘unreliability’ of the affected person has ceased to apply. The affected person must prove that there is no longer a risk to the public or a risk of professional misconduct. The competent authority will review the facts and legal situation again upon application and decide whether the prohibition should be lifted. In most cases, extensive evidence of changed circumstances is required, such as certificates of good conduct, qualified reports, or proof of completed rehabilitation.
What rights does the affected person have in the administrative procedure before the prohibition is imposed?
Before a prohibition of professional practice is imposed, the affected person is entitled under the principles of administrative procedure law, especially § 28 VwVfG, to the right to be heard. The authority must inform the person about the intended measures and give them the opportunity to comment on the facts relevant to the decision. This also includes the right to submit evidence, name witnesses, or provide written statements. The right to a hearing is an important procedural safeguard, and its violation can lead to the illegality of the prohibition notice.
Is the prohibition of professional practice valid nationwide or only regionally?
Whether a prohibition of professional practice applies nationwide or is limited to a specific area (such as a federal state) depends on the applicable legal provisions and the specific content of the prohibition notice. For many liberal professions and chamber professions (such as doctors, lawyers, pharmacists), the prohibition generally applies nationwide because the professional license is valid nationwide. In trade law prohibitions, limitation to the respective federal state is often stipulated, but this may affect authorization in other states, as unreliability is generally examined there as well. It is advisable to carefully review the wording of the notice and the relevant provisions.
