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Restaurant law, law relating to hotels and catering trade, horak Lawyers Germany

Hospitality industry and relating law: definitions

Paragraph §1 of the German Restaurant Act (GastG) that concerned the hospitality industry, regards:

  • Administration of beverages for consumption in situ (in bar, public houses or taverns)
  • Or prepared food for consumption in situ (restaurant management)
  • Or, as a self-employed trader in the itinerant industry, consumption on situ of prepared food for the duration of an event, and the service is accessible to anyone or just to a group of involved people.

Hospitality/Catering, related licenses

According to paragraph §2 GastG, anyone who wants to run a hospitality or catering business, will require a specific license. However, a permission is not required if only prepared food and non-alcoholic beverages are administered.

However, in both cases, the registration of the commencement of a commercial activity to a local trade office is compulsory.

The exemption also does not discharge from possible further compliances with commercial regulations. This license is personal, spatial and business-related. Therefore, if the operator changes, the new one should apply for a new license; if the business moves to another location or the business changes its purpose, a new license must be required.

In a commercial partnership, each of the executive partners requires a separate authorization. In a limited company (Ltd = GmbH), the permission is granted for the whole Ltd. If a third party assume the management of the business, according to para. §9 of the German GastG, a personal deputy permit is necessary.

Both the trader and the deputy must furnish proof of approval for:

  • Personal liability;
  • Professional suitability;
  • Object-specific requirements.

Personal Liability

Personal liability must be demonstrated with the following documents:

  • Statement from the Federal Central Register;
  • Statement from the trade register;
  • Clearance certificate from of competent taxation authorities;
  • Clearance certificate from the business taxation authorities.

The competent authority may require further evidences. Therefore, it is suggested to ask preemptively for information.

Professional reliability

The professional reliability must be demonstrated by attending an IHK Instruction on food-law regulations, according to § 4 of the GastG. If the permission of a limited company has been granted, all managing directors must have participated to one of these briefings (exceptions: people with a degree in hospitality or similar). They shall also present a certificate of the initial instruction issued by the Public Health Department under the Infection Protection Act, which may not be older than three months.

Object-related conditions

  • Rent, lease or purchase contract for the catering/hospitality premises
  • Proof that the premises are suitable for the use, in accordance with the regulation on national law.

Regulations for on-going companies

In the case of business or commercial offers of services to a final user, the prices shall include, the VAT or other price components, that are to be paid independently from a granting of discounts. The prices shall be in accordance with the general circulation and principles of price clarity and verity of prices. They shall be ambiguously assigned to the offers or advertisements, they shall be easily recognizable and readable or otherwise perceptible.

It is compulsory to have a list of prices for food and drinks in sufficient number on the tables, for instance, or instead been presented to each guest before the order, or upon request, before the payment of the bill.

Forms such as: “from 99$ “or “ca.50$” or “from 10 to 15$ “are not admitted. In addition to the one on the entrance of the restaurant, it is compulsory to have a list of prices that clearly shows the costs of the essential drinks and the regular menu, with the addiction of daily food´s offers and recognizable sample images. The prices on the list should include the service charge and other surcharges.

According to para. § 6 of GastG, business that have the license to sell alcoholic drinks shall always have also alcohol-free drinks. The same quantity of the cheapest alcoholic drink shall not be more expensive than an alcohol-free drink.

According to the Federal Food Safety and Hygiene regulation, every hospitality business is obliged to carry out appropriate measures, training courses and inspections in addiction to a responsible self-control of the business. This means that the operating company has to identify in his production area, all the possible points and processes that could have negative influences on the foodstuffs, and thereafter, the operator should regularly and routinely supervise these weak points. The monitoring activities shall be documented, so that the foodstuff-supervising authorities always have those available for a possible check of the production process of a business. The employer has to instruct his employees, once during the recruitment and then once a year, in accordance with Article 42 of the Law of recognition; nonetheless, he also has to keep evidence of the instruction and present those documents to the competent authorities upon request.

Many artificial additives require a particular labeling for commercial production, treatment and further circulation; for this reason, the operator must inform the customer of the presence of these additives.

Prohibition (GastG)

Liquor and mixed-spirits shall not be offered by automatic machines.

The selling of alcoholic-beverages to a person, whom you know or believe it is visibly drunk, it is not allowed.

Food and beverages should be offered and eventually be ordered by a client at the same time, and they should be part of the same bill; if ones decide not to order a drink with his/her meal, the business is not allowed to increase the price of the dishes.

In the same way, the administration of alcohol-free beverages may not depend on the ordination of alcoholic beverages, or on the price of alcohol-free drinks by non-ordering alcoholic beverages.

It is not allowed, to offer non-alcoholic beverages on the same counter of alcoholic beverages.

Observances on youth protection

It is against the law, to enter a pub/bar/tavern or similar under the age of 16 without being accompanied by a parental authority. After the 16th year of age, a person is allowed to be in one of the above-mentioned businesses till midnight without the accompaniment of a parental authority. Underage people, shall not entry business such as night-pubs, night-clubs or similar.

Liquors, spirits, mixed-spirits or foods that may contain an amount of liquors, shall not be issued to children and adolescents. Other milder alcoholic beverages may be purchased by over 16. A parent can decide if the child can take a sip/try another alcoholic beverage under his/her surveillance.

In case of doubt, the operator has the right to check the age of the guest by asking a personal ID; every operator shall know the regulation of the Youth Protection Legislation. In order to do so, the trader shall place a well visible notice in the business, for anyone to be seen and understood.

Fringe Benefits

According to §7 of the German GastG, business people in the hospitality and restoration industry are allowed to offer goods and supplies to the guests, also outside the statutory opening hours. These goods and services must be necessary and justified addition to the main service. They may only provide those goods to guests, who have also already enjoyed a major catering/hospitality/restoration service.

A classic bar/public house/tavern may also offer tobacco products, confectionery, fruit and postcards as additional services, for example. A Hotel should also offer newspapers, magazines, timetable, travel tickets, hairdressing services, washing and ironing services or shoes-cleaning services.

The taxation treatment of gastronomic sales is available on §12 para.2, no.1 sentences 2, 3 of the German UStG.

The supply of beverages and prepared meals for immediate consumption is subject to §12 I UStG according to the general tax rate. These include among others, sandwiches, chips, cakes, biscuits, meat and fish dishes, ice cream and French fries.

If the delivery is not intended for immediate consumption, the reduced tax rate of 7% in applied.

GEMA

The company for music performances (GEMA) is a collective society within the meaning of the copyright law. The public reproduction of copyrighted works, such as music, films or pictures, must be notified to GEMA in advance. For the correct and compulsory application, a payment may incure.

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