Revocation of trade license within the meaning of Sec. 87 (1) (1) GewO

Jul 28, 2021 Benn-Ibler Rechtsanwälte

The Supreme Administrative Court of Austria (Verwaltungsgerichtshof, VwGH) clarifies that the preparation of a prognosis, which is to be made in the case of a questionable withdrawal of a trade license, depends on the circumstances of the individual case. Obtaining a psychological expert opinion is not mandatory.

In the case at hand, the authority concerned revoked the appellant's trade license pursuant to Sec. 87 (1) (1) of the Trade, Commerce and Industry Code (Gewerbeordnung, GewO) on the basis of three criminal convictions. The appeal filed against this decision was dismissed by the Administrative Court (Verwaltungsgericht, VwG).

The VwGH dismissed the appeal by decision, for according to its jurisprudence, it is necessary for the grounds for revocation under Sec. 87(1)(1) GewO that the trade authority makes a well-founded and comprehensible prognosis about the future conduct of a person on the basis of past conduct. The prognosis under section 87(1)(1) GewO therefore presupposes the determination of the offences on which the conviction was specifically based and on which the trade authority must base its prognosis in connection with the final conviction.

The findings of the VwG regarding the criminal convictions and the prognosis made regarding the future conduct of the appellant were not objectionable. There was no blatant misjudgment by the Administrative Court. If the nature of the offences on which the conviction is based gives rise to the fear of further misconduct, it is also not necessary to obtain a psychological expert opinion.

VwGH Ra 2021/04/0074, 21.04.2021