BGH on fundamental questions of professional practice using the example of Lake Constance professional fishermen
The Federal Supreme Court (BGH) in Karlsruhe follows the arguments of the commercial law firm SNP Schlawien in the first case since the existence of the "Bregenz Agreement" of 5 July 1893, in which the Free State of Bavaria was sued for the grant of a patent on the high seas. Bavaria is the owner of the fishing rights on Lake Constance, which also borders Austria and Switzerland. The case now goes to the Bavarian Supreme Court in Munich.
The deep-sea patent entitling the plaintiff to engage in professional fishing on Lake Constance had been granted to him by the authorities every year since 1963 without further application, but was refused for 2018 and subsequent years. He was only offered the prospect of a restrictive so-called old-age patent, which, however, no longer allowed the professional fisherman to engage in any economically meaningful activity. The background to the restrictions to which the professional fisherman represented by SNP Schlawien was exposed was, among other things, an age limit of 70 years, which the International Plenipotentiary Conference for Lake Constance (IBKF) had decided in 2015 in order to reduce the number of permits, which in their view was too high.
Via the Regional Court in Kempten (Allgäu) and the Higher Regional Court of Munich in Augsburg, the case reached the Federal Supreme Court (BGH), which declared itself without jurisdiction in the matter, as legal norms are essentially applied that are contained in the law of Bavaria and thus the jurisdiction of the Bavarian Supreme Regional Court (BayObLG) as a court of appeal arises. However, in its decision of 29 July 2021 (Case No. III ZR 163/20), the plaintiff lists various substantive legal issues and complains about the violation of federal law norms and constitutional requirements with which the plaintiff had not yet been able to prevail in the lower courts. Moreover, since there has been no case law on Lake Constance law to date, this decision by the BGH represents a real milestone.
In addition to the question of whether the age limit of 70 also constitutes age discrimination, the case also deals with questions of equal treatment in contracts between the public sector as provider and a majority of employed persons on the one hand, and the fundamental question of a claim based on decades of practice on the other. Beyond the specific case, the BGH decision has significance for all self-employed persons who have pursued their professional activity over a long period of time and have so far received the necessary official permit without any problems. If the professional suitability and qualifications remain the same, the public authorities must take into account aspects of the protection of the self-employed person's legitimate expectations and their constitutionally protected freedom to exercise their profession more strongly when making changes to the licensing or granting practice and may not rely solely on the principle of freedom of contract.
Representative of the plaintiff
Michael R. Moser, SNP Schlawien/Stuttgart
Attorney at law before the BGH: Dr. Thomas von Plehwe,
Attorney at Law at the Federal Supreme Court, Karlsruhe
Michael R. Moser
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