Definition and significance of the prohibition of professional activity
The prohibition of professional activity refers to a sovereign measure by which a natural or legal person is wholly or partially prohibited from exercising a profession or occupation. The legal basis and requirements for such a measure are regulated in various laws. The aim of the prohibition is the protection of significant public interests, in particular the public, safety, health, or public trust in certain professions.
Legal basis for the prohibition of professional activity
Trade Regulation Act (GewO)
The Trade Regulation Act (§ 35 GewO) is one of the main legal foundations on which the prohibition of the exercise of a trade may be based. According to § 35 para. 1 GewO, the competent authority may prohibit a trader from exercising their activity if facts exist from which it can be concluded that the person does not possess the reliability required for operating a business. The same applies to persons authorized to represent legal entities.
Unreliability (reliability in terms of GewO)
For the assessment of reliability, factors such as criminal convictions, insolvency, tax and social security obligations, or violations of relevant professional duties are taken into account. The key focus of the authority’s discretionary decision is the prognosis as to whether future misconduct is to be expected.
Object and scope of the prohibition
The prohibition usually applies to the entire business, but it can also be limited to certain activities. It is also possible to prohibit third parties from employing the affected individual (so-called employment ban).
Professional regulations
Health professions
For members of the health professions (e.g. medical doctors, pharmacists, dentists), there are professional regulations containing distinct provisions for imposing a professional ban or a suspension of the license to practice, for example according to § 6 Federal Medical Code (BÄO), § 8 Pharmacy Act (ApoG), or § 71 Criminal Code (StGB).
Legal professions and security-relevant activities
In professional codes, such as those for tax advisors or auditors, comparable provisions exist that allow intervention in the event of serious breaches of duty or unreliability.
Specific grounds for prohibition
In special cases, the prohibition of professional activity may also be imposed due to infections, as provided by the Infection Protection Act (§ 31 IfSG), or for the protection of the welfare of children under the SGB VIII.
Criminal prohibition (§ 70 StGB)
Criminal law provides for a professional ban as a secondary penalty. According to § 70 StGB, the court may prohibit a convicted person from exercising a profession, trade, or activity if there is a risk that further significant crimes will be committed by practicing it. This prohibition may be imposed for a limited or unlimited period and is subject to strict requirements.
Requirements and procedure
Exercise of discretion and proportionality
When ordering the prohibition, the competent authority must make a discretionary decision and must in particular observe the principle of proportionality. The measure must be suitable, necessary, and appropriate to serve the intended protective purpose. A less severe measure, such as a partial prohibition or the imposition of conditions, takes precedence.
Hearing and the right to be heard
Before issuing a prohibition order, the affected person must be given the opportunity to comment (right to be heard, § 28 VwVfG). The procedure is subject to the requirements of the Administrative Procedure Act (VwVfG).
Legal remedies and protection of rights
The affected person has recourse to administrative courts against the order of a prohibition. The suspensive effect of an objection or a lawsuit may be excluded in individual cases depending on the legal situation (§ 80 para. 2 no. 4 VwGO), but can be restored by way of interim relief.
Consequences of a prohibition of professional activity
Legal consequences
A legally binding prohibition results in the affected person or company no longer being permitted to carry out the prohibited activity. Violations of a prohibition are punishable (§ 148 GewO). Circumventing the prohibition by use of intermediaries is also impermissible.
Impact on company and employment relationships
Companies may be obligated not to employ persons subject to a professional ban. In certain cases, the prohibition also extends to companies that are significantly influenced by unreliable persons.
Possibilities for reinstatement
Once the reasons for the prohibition have ceased to exist, an application for reinstatement of the license or permit can be filed. For this, reliability and other legal requirements must be demonstrated again.
Difference to other measures
Revocation, withdrawal and suspension of professional license
The prohibition of professional activity is to be distinguished from other intervention measures, such as the revocation or withdrawal of a permit or license, as well as from the order to suspend the license to practice. Whereas the prohibition is usually a limited or activity-restricted measure, revocation or withdrawal leads to the complete loss of authorization.
Significance for the protection of the public and the rule of law
The prohibition of professional activity serves to protect the public and to maintain trust in the functioning of markets and state systems. It is an essential instrument to prevent substantial dangers, limit risks, and safeguard the public interest.
References (examples)
- Trade Regulation Act with commentary
- Federal Medical Code
- Federal Administrative Court: Decisions on § 35 GewO
- Criminal Code with explanations
Note: The legal requirements and consequences of a prohibition of professional activity depend on the specific legal provisions and the circumstances of the individual case. It is advisable to examine the situation in light of the current legal context and relevant case law.
Frequently Asked Questions
What legal requirements must be met for a prohibition of professional activity?
A prohibition of professional activity is a severe encroachment on the freedom of occupation under Article 12 of the Basic Law (GG) and is therefore subject to strict legal requirements. As a rule, it may only be imposed if, in the individual case, facts exist that show the person concerned is either personally unsuitable or not reliable for the exercise of the profession. The relevant provisions can be found in either federal or state regulations depending on the profession (e.g. Trade Regulation Act, professional regulations for health professions, Crafts Code, Lawyers’ Act). Generally, there must be a specific threat to important legal interests (such as health, property, or public safety and order). The prohibition is generally seen as a last resort, meaning that other, less severe measures (such as conditions or restrictions) must first be considered and exhausted.
Who decides on the prohibition of professional activity and how does the administrative procedure work?
The decision on the prohibition of professional activity is made by the respective competent administrative authority or, depending on the profession, the relevant chamber or supervisory authority (e.g. health authority, public order office, bar association, chamber of industry and commerce). The procedure is governed by the provisions of the Administrative Procedure Act (VwVfG) or the relevant special legislation. The person concerned must regularly be heard before a decision is made on the prohibition. All facts leading to the prohibition must be identified and documented on an individual basis. After delivery of the prohibition notice, there is the possibility to lodge legal remedies (e.g. appeal or administrative action) against the measure.
What are the legal consequences of the prohibition of professional activity for the affected person?
Once the prohibition order has been lawfully issued, the affected person may no longer carry out the relevant professional activity to the extent regulated. Breaching the prohibition may result in criminal sanctions or fines under the respective specialist laws (e.g. § 148 GewO, §§ 132a, 263 StGB for health professions). Furthermore, the prohibition may affect other professional or social law matters, such as revocation or withdrawal of licenses or authorizations.
Can a prohibition of professional activity be imposed for a fixed term or indefinitely?
A prohibition of professional activity may be imposed either for a fixed term or indefinitely. The precise arrangement depends on the applicable legal provisions and the circumstances of the individual case. An indefinite prohibition is generally only permissible if it must be expected that unreliability or lack of suitability will persist indefinitely. Otherwise, a time limitation, possibly with conditions, must be imposed. Moreover, the affected person may later apply for the lifting of the prohibition if renewed reliability or suitability is demonstrated.
What legal remedies are available against a prohibition of professional activity?
Against a prohibition of professional activity, the affected person may, depending on the administrative process, file an objection and bring an action for annulment before the competent administrative court. The action for annulment generally has suspensive effect unless immediate enforcement is ordered in the notice. In case of immediate enforcement, interim legal protection may be applied for pursuant to § 80 para. 5 VwGO. Judicial review extends to whether the legal requirements for the prohibition have been met, in particular whether a careful case-by-case assessment, balancing of interests, and proportionality have been observed.
Is it possible to resume professional activity after a prohibition?
Yes, affected persons may generally apply for readmission to professional activity if the reasons for the prohibition no longer exist. As a rule, proof must be provided that the original concerns (especially regarding reliability or suitability) no longer exist. The competent authority will decide on the application, taking into account the current situation and weighing all relevant circumstances. The authority may also order conditions or restrictions in the readmission procedure that appear suitable to further minimize existing risks.
