Definition and Legal Classification of a Schankwirtschaft (drinks-serving establishment)
A Schankwirtschaft is a type of commercial establishment, characterized primarily by the serving of beverages for consumption on the premises. The legal basis for Schankwirtschaften is derived mainly from hospitality law, particularly the Gaststättengesetz (GastG), state hospitality laws, and related regulations such as those concerning hygiene, construction, and taxation. In this context, a Schankwirtschaft differs significantly from other types of hospitality businesses such as food establishments, canteens, or nightclubs.
Definition of a Schankwirtschaft
According to § 1 (1) GastG, a Schankwirtschaft exists when beverages are served commercially for consumption on the premises. The distinction from a food-serving business is relevant: In Schankwirtschaften, prepared food is typically not, or only to a subordinate extent, offered, with the focus being on beverages. The term Schankwirtschaft does not include purely retail outlets for take-away drinks (such as ‘Stehbierhalle’ or kiosk).
Legal Framework of the Schankwirtschaft
Regulatory Requirements for Hospitality Establishments
Licensing Requirement under the Gaststättengesetz
Operating a Schankwirtschaft generally requires a permit under § 2 GastG if alcoholic beverages are served. The hospitality license (often referred to as a ‘concession’) is linked to certain personal and professional requirements. These include:
- Reliability of the operator (verified by criminal record certificate and extract from the central trade register)
- Proof of training regarding food law regulations at the Chamber of Commerce and Industry
- Proof of spatial requirements (e.g., sanitary facilities, escape routes, soundproofing)
Anyone serving only non-alcoholic beverages does not generally require a permit according to § 2 (2) GastG—unless the respective state law provides otherwise.
Distinction from Food-Serving Establishments and Special Types
Businesses that offer only or predominantly beverages are considered pure Schankwirtschaften. As soon as food becomes the main focus of the offer, it is considered a food-serving business, which must be legally assessed individually. Hybrid forms (‘Schank- und Speisewirtschaft’) are subject to the same statutory requirements as pure Schankwirtschaften.
Duties and Conditions for Operating a Schankwirtschaft
Hygiene and Food Law
Operators are required to comply with food and hygiene law requirements. These include, in particular, the provisions of the Food Hygiene Regulation (LMHV), regular staff training, and inspections by the competent health authority.
Regulations on Opening Hours
The regulation of opening hours is largely the responsibility of the federal states and municipalities. The Gaststättengesetz allows the authorities to impose restrictions for reasons of noise protection, public safety, or order.
Protection of Minors
The applicable provisions are those of the Youth Protection Act (JuSchG). The sale of alcoholic beverages to minors is prohibited, and violations can lead to fines or revocation of the license. Operators of Schankwirtschaften are required to monitor compliance.
Tax Aspects of Schankwirtschaften
Schankwirtschaften are subject to trade tax and value-added tax (VAT), with beverages usually taxed at the regular rate of 19%. Additionally, revenues from Schankwirtschaften must be declared as income from business operations for tax purposes. Ongoing business operations require proper bookkeeping and, if necessary, the use of a certified, tamper-proof electronic cash register.
Building Law Requirements
To open and operate a Schankwirtschaft, the building regulations – in particular, state building codes, fire protection, ensuring barrier-free access, and requirements for sanitary facilities – must be observed. Often, a change of use must be applied for the respective premises.
Noise Protection and Neighbor Rights
The operation of a Schankwirtschaft is often associated with increased noise levels. According to the Federal Immission Control Act (BImSchG) and the corresponding state and municipal regulations, a Schankwirt can be obliged to prevent, reduce, or limit unreasonable noise emissions. Neighbors have a right to the observance of relevant noise limits.
Liability and Insurance
Operators of a Schankwirtschaft are liable for damages that may arise from the operation, such as accidents on the premises or alcohol abuse as a result of improper service. It is therefore advisable to take out hospitality liability insurance.
Special Business Types: Temporary Schankwirtschaften and Event Catering
Schankwirtschaften can also be operated on a temporary basis—for example, at fairs, Christmas markets, or club events. Such ‘temporary Schankwirtschaften’ may be subject to simplified or different licensing requirements. The legal situation is usually regulated by special municipal regulations.
Supervision and Sanctions
Supervision of Schankwirtschaften generally falls under the jurisdiction of the regulatory authorities, health departments, and in certain cases the police. Violations of hospitality, hygiene, or tax regulations can result in revocation of the license, heavy fines, or in individual cases even (temporary) closure.
Summary
The Schankwirtschaft, as a special form of commercial operation, is a major focus in German hospitality law. Key features include the commercial serving of beverages for on-site consumption and distinct legal treatment regarding licensing, supervision, and control mechanisms. In addition, operators must comply with extensive requirements from various areas of law such as hygiene, building law, environmental protection, and tax law.
With its diverse and legally demanding framework, the Schankwirtschaft remains an independent and, in practical implementation, often complex form of hospitality business.
Frequently Asked Questions
What permits are required to open a Schankwirtschaft?
To open a Schankwirtschaft in Germany, a so-called hospitality license is generally required. This is issued under the Gaststättengesetz (GastG) and becomes mandatory once alcoholic beverages are served on the premises. The permit is granted upon application by the competent authority, usually the regulatory office. Various documents must be submitted as part of the approval process, including an extract from the central trade register, a police clearance certificate, proof of instruction at the Chamber of Commerce and Industry (IHK), and sometimes proof of the structural suitability of the premises (building permit, fire protection). Additionally, proof of personal reliability, such as a tax clearance certificate, may be required. Requirements vary by federal state and municipality, so early coordination with the relevant authority is essential. In addition to complying with hospitality laws, regulations relating to the protection of minors, environmental protection, and potentially hygiene regulations (e.g., under the Infection Protection Act) must also be observed.
When is a Schankwirtschaft exempt from licensing?
A Schankwirtschaft is only exempt from licensing if exclusively non-alcoholic beverages are served. According to § 2 GastG, a hospitality license is only required if alcoholic beverages are served. If service is limited to non-alcoholic drinks, free samples, or exclusively closed private gatherings, the licensing requirement does not apply. However, even license-exempt Schankwirtschaften must be properly registered as a business (§ 14 Trade Regulation Act). Further statutory requirements also apply regardless of licensing, in particular with regard to youth protection, hygiene, and, if applicable, regulations on noise protection and building codes. It is also crucial that no alcoholic beverages are stocked or served; otherwise, the operation becomes subject to licensing.
What conditions may be associated with a Schankwirtschaft permit?
When granting a Schankwirtschaft permit, the competent authority may impose extensive conditions (§ 5 GastG). These may relate to protecting neighbors from noise and other disturbances, specify special opening and closing times, require specific hygiene measures, or set requirements for ensuring the protection of minors. Structural or operational modifications may also be ordered, such as the installation of a ventilation system, noise protection measures, or the creation of barrier-free access. Restrictions on certain types of beverages or special provisions for outdoor areas (e.g., beer gardens) may also be imposed in individual cases. Failure to comply with such conditions can result in official measures such as business closure, fines, or even the revocation of the license.
What are the legal obligations regarding youth protection in a Schankwirtschaft?
In a Schankwirtschaft, the operator is subject to the provisions of the Youth Protection Act (JuSchG). Particularly relevant are the regulations concerning the serving and sale of alcoholic beverages: Spirits and spirit-based drinks may not be given to children and adolescents under 18 years of age, while beer, wine, and sparkling wine may only be served to adolescents from the age of 16. Moreover, it must be ensured that minors do not remain on the premises at certain times without being accompanied by a person with parental authority or a responsible adult (§ 4 JuSchG). Compliance with these rules must be ensured by appropriate measures, such as posting notices and, where necessary, conducting age checks when serving. Violations may result in substantial fines and, in the event of repeated offences, the revocation of the Schankwirtschaft license.
What tax and business aspects need to be considered for a Schankwirtschaft?
The opening and operation of a Schankwirtschaft are relevant under both tax and commercial law. The commencement of business activity must first be reported to the trade office in accordance with § 14 Trade Regulation Act. Tax-wise, income from a Schankwirtschaft is in principle subject to income tax; depending on turnover thresholds, value-added tax and, where applicable, trade tax may also apply. Operators are required to keep proper records of sales and profits. In addition, there are specific tax law requirements such as those of the Cash Register Security Ordinance, for example concerning electronic cash registers and the obligation to issue receipts. Local beverage taxes (‘Schanklizenzsteuer’) may also be levied on the sale of alcoholic beverages, depending on the municipality. Expert tax advice is strongly recommended.
What special hygiene regulations apply to Schankwirtschaften?
Schankwirtschaften are subject to food hygiene law, especially the Food Hygiene Regulation (LMHV) and EU Regulation (EC) No. 852/2004 on food hygiene. Operators are responsible for the safety and harmlessness of the food and drinks offered. Staff must be regularly trained in hygiene (instruction under § 43 Infection Protection Act), and rooms as well as serving and storage facilities must meet hygiene requirements (e.g., cleaning, disinfection, storage, pest prevention). In particular, operators are obliged to implement a self-monitoring system such as HACCP principles (Hazard Analysis Critical Control Points). Compliance with the regulations is regularly inspected by the food control authorities of the federal states; violations may result in fines or closure.
What must be observed at events, festivals, or with a temporary Schankwirtschaft?
If a Schankwirtschaft is operated only temporarily, for example as part of a street festival, fair, or club event, the Gaststättengesetz still applies. However, a so-called ‘Gestattung’ (special permit) under § 12 GastG is required, which is granted for a single occasion and for a limited period. The requirements for such a permit are similar to those for a regular license, with the focus on verifying personal reliability and meeting event-specific requirements (such as hygiene, youth protection, noise protection). The permit must be applied for in good time, usually several weeks before the event. The applicable regulations on environmental protection, traffic safety, and labor law (e.g., for employed waitstaff) also apply to temporary operations. In the event of violations, the event may be prohibited or substantial fines may be imposed.
