Concept and significance of reliability in law
Reliability is a central concept in various areas of German law. It represents a person’s ability and willingness to comply with the applicable legal system and to act responsibly and reliably within the framework of statutory provisions. The assessment of reliability plays a particular role in areas where ensuring public safety and order, protection of especially sensitive legal interests, or public trust in certain persons or companies is of significant importance.
In German law, the term “Zuverlässigkeit” (reliability) is not defined uniformly but interpreted differently depending on context and legal field. For example, it is applied in trade law, weapons law, immigration law, driving license law, data protection law, and other special areas of law.
Reliability in trade law
General requirements
In trade law, the reliability of the business operator is a central prerequisite for the exercise of certain businesses requiring a permit. The legal basis is in particular the Trade Regulation Act (GewO). According to Section 35 (1) GewO, the competent authority can prohibit the exercise of the trade if there are facts that justify the assumption that the business operator does not possess the required reliability for operating the business.
Standard for the assessment of reliability
The assessment is carried out by way of a prognosis regarding the future conduct of the person concerned, based on their past behavior. In particular, it is determined whether there are facts that justify the assumption that the person concerned may in the future violate legal provisions intended to protect the general public or significant legal interests. Criminal convictions, administrative offenses, insolvency, or behavior resembling fraud may justify a presumption of lack of reliability.
Special provisions for specific trades
For specific trades, such as the security industry (§ 34a GewO), insurance mediation (§ 34d GewO), or the hospitality industry (§ 4 GastG), there are sometimes particularly stringent requirements for reliability. Here, more comprehensive standards and sometimes additional evidence, such as information from the Federal Central Criminal Register or the Trade Central Register, are required.
Reliability in weapons law
German weapons law, regulated by the Weapons Act (WaffG), imposes particularly high requirements on the reliability of applicants. According to Section 5 WaffG, a weapons permit is to be denied if facts justify the assumption that the person concerned, in particular due to a criminal record, substance abuse, psychological instability, or extremist tendencies, does not possess the required reliability. Statutory examples and regular grounds for unreliability are set out in detail in the law.
Regular and absolute unreliability
The Weapons Act distinguishes between “absolute” and “regular” unreliability:
- Absolute unreliability exists if there are mandatory reasons for refusal, for example in the case of a conviction to a prison sentence of at least one year.
- Regular unreliability is assumed if certain criminal or security-relevant facts exist within the last five years. Exceptions may be possible in individual cases but require specific justification.
The authorities are required to obtain comprehensive information from criminal, probation, and public prosecutor registers.
Reliability in driving license law
In the context of granting or revoking a driving license, the driver’s license authority examines the personal suitability and in particular the reliability according to §§ 2, 3 StVG, §§ 11 et seq. FeV. Facts from criminal and regulatory offense matters, medical-psychological reports, as well as findings from the driving suitability register, are included in the assessment of reliability. Lack of reliability may lead to the revocation or denial of the driver’s license.
Reliability in immigration law
Residence law
Reliability is also a key criterion in residence law. For the granting or extension of residence permits under the Residence Act (AufenthG), there must be no serious doubts about reliability, particularly regarding a clean criminal record and respect for public order.
Nationality law
For naturalization under the Nationality Act (StAG), reliability is also an essential requirement. Applicants must demonstrate a commitment to the free democratic basic order of the Basic Law and must not have committed acts contrary to the public interest.
Reliability in data protection law
According to Art. 28 GDPR and corresponding national provisions, processors and their staff must ensure confidentiality and reliability when processing personal data. This includes, in particular, responsible handling of data and appropriate security measures.
Reliability in other areas of law
In other areas as well, such as aviation law, explosives law, gambling law and the security industry, the assessment of reliability is an essential criterion for granting permits, licenses or approvals. The respective specialist laws contain specific regulations and standards for this purpose.
Procedure for the reliability assessment
Legal basis
The legal bases for the reliability assessment are found in various laws and ordinances. These set out which authority is responsible, what documents must be submitted, and which register information may or must be obtained.
Course of the assessment
The assessment is usually carried out on the basis of the file, supplemented by official investigations and, if necessary, a hearing of the person concerned. The scope of the assessment varies depending on the area of regulation but regularly includes:
- Enquiries from the Federal Central Criminal Register (criminal record check)
- Information from the Trade Central Register
- Requests to the Fitness to Drive Register
- Enquiries with the police authority and/or security services
- Assessment of other relevant facts (e.g., economic reliability, substance abuse issues)
The persons concerned are, in principle, entitled to be heard, may present their point of view and, if necessary, provide further evidence.
Legal consequences of lack of reliability
If the competent authority finds a lack of reliability, this may, depending on the legal area, lead to refusal, withdrawal, or revocation of a permit, title, or license. Examples:
- Revocation of the business license
- Refusal or revocation of the driver’s license
- Refusal of the firearms ownership card
- Denial of a residence permit or naturalization
As a rule, affected persons receive a written notice with reasons and instructions regarding the possibility of an objection or legal action.
Importance and dynamics of the concept of reliability
The concept of reliability in the individual areas of law is dynamic in nature. It is subject to ongoing adjustments by legislation and judicial interpretation. Evaluation is regularly carried out individually and in context. The requirements may vary depending on the interest to be protected or the danger situation and are sometimes specified and further developed by case law.
Conclusion
Reliability plays a key role in the German legal system whenever the legislator seeks to ensure trust in the lawful and responsible conduct of individuals or companies. The scope and standards for assessing reliability always remain linked to the protective purpose of the relevant legal area and the specific circumstances of each case. A negative result in the assessment can lead to serious legal consequences, including the withdrawal of rights essential for livelihood. Careful and foresighted compliance with the statutory requirements for reliability is therefore of the utmost importance for all parties affected.
Frequently asked questions
What legal requirements must be met to determine reliability in the security industry?
In the security industry, the trade law governing security services pursuant to § 34a GewO (Industrial Code) imposes strict requirements for reliability. The authority examines whether there are facts rendering the applicant unreliable. This regularly involves obtaining information from the Federal Central Register (certificate of conduct), the Trade Central Register, and, where appropriate, from the police, judicial authorities, and other authorities. Negative reliability criteria include, in particular, final criminal convictions, pending criminal investigations, violations of weapons law, insolvency offenses, substantial tax arrears, or breaches of duty related to earlier businesses. Threatened or repeated administrative offenses may also exclude reliability. In addition, the authority assesses the overall impression of the applicant, considering all relevant circumstances according to the discretion vested in it by law. If reliability is denied, a business license may be refused or revoked.
How is reliability assessed in hospitality law?
According to §§ 1, 4 GastG (Hospitality Act), the personal reliability of the applicant is an essential requirement for a hospitality license. The authority examines, similarly to commercial law, all relevant facts to determine whether the applicant can be relied upon to properly operate the business. Special attention is paid to previous convictions related to business management (such as for insolvency offenses, breach of trust, or drug offenses), but also to violations of food law, building regulations, or youth protection laws. Fiscal unreliability (e.g., tax and levy arrears) can also lead to refusal. The decision is made on the basis of an overall assessment of all circumstances, and ongoing proceedings or findings from reliability assessments in other trades may also be included.
What legal consequences arise from lack of reliability under the Weapons Act?
In weapons law, reliability under § 5 WaffG (Weapons Act) is a central criterion for the granting, continuation, and revocation of weapons permits (e.g., firearms ownership card, gun license). Persons are considered unreliable particularly if they have been convicted by final judgment for certain offenses, have repeatedly violated the Weapons Act or the Explosives Act, or if their behavior suggests that they might misuse weapons or ammunition recklessly or negligently. Unreliability may be presumed if facts justify the assumption that the applicant might carelessly breach protective regulations. If unreliability is established, the permit must be refused or revoked; there is no discretion for the authority in this regard. For the reliability assessment, numerous data are compared, including information from the police, public prosecutor’s office, entries in the central register of public prosecutor investigations, and the Federal Central Register.
How long does an established unreliability affect future professional activity?
The legal effects of established unreliability are regulated differently in the relevant specialist laws. In trade law (§ 35 GewO), a prohibition order can be maintained for as long as facts establish unreliability. It is regularly reviewed whether the situation has changed. In weapons law, the waiting period after a final withdrawal of a weapons permit is at least five years according to § 5 (2) No. 1a WaffG before a new permit can be applied for. In hospitality law, proven unreliability may also prevent the granting of a new permit as long as the causes persist. Regaining reliability usually requires all relevant entries to be deleted or limitation periods to have expired and for the person’s behavior to permit a positive prognosis.
Must the authority provide reasons for a finding of unreliability, and how can affected persons challenge it?
In accordance with constitutional requirements (Art. 19 (4) GG, right to legal protection), the authority is obliged to give a detailed and comprehensible justification for a negative decision due to lack of reliability. The notice must state the underlying facts and assess them legally so that the person affected can understand why reliability was denied. Legal remedies are available against a negative notification: holders of rights can, depending on the case (commercial, weapons, hospitality law, etc.), file an objection and, if necessary, bring an action before the Administrative Court. In administrative court proceedings, the exercise of discretion by the authority is reviewed for legality and especially for errors of judgment. If new decisive facts arise or circumstances change, a new application for the determination of reliability can also be submitted.
What role do time limits for deletion and prior convictions play in assessing reliability?
Previous convictions and other entries in official registers are decisive criteria in the reliability assessment. However, according to Section 51 of the Federal Central Register Act (BZRG), expunged entries may generally no longer be taken into account; they are deemed deleted and may not be used to the detriment of the person concerned during the assessment. For the duration of the retention period, the entries remain in the central register and may legally be considered within this timeframe. The length of these periods depends on the type and severity of the conviction. After the period expires, a legal prohibition on use applies, except in the case of particularly serious offenses for which special provisions allow consideration. In addition to previous convictions, ongoing criminal investigations, official surveillance, or serious administrative offenses committed during the retention period may also be taken into account in the reliability assessment.
