VfGH: Mere University Degree Insufficient to Run a Restaurant

Apr 12, 2023 Benn-Ibler Rechtsanwälte

The Austrian Constitutional Court (Verfassungsgerichtshof, hereinafter VfGH) has ruled that a university degree is not prerequisite to running a business in the hospitality industry. The corresponding provision of the Austrian Hospitality Ordinance (Gastgewerbe-Verordnung in Austrian Federal Law Gazette II No. 51/2003) was repealed ex officio as contrary to the principle of equal treatment.

The case was triggered by a company that registered a restaurant and submitted coursework certificates from two university programmes (which the restaurant manager had not completed) as proof of his qualifications. The local authorities and the administrative court prohibited the company from operating the business on the grounds of insufficient qualification, after which the company appealed to the VfGH. As a result, the VfGH expressed doubts as to the constitutionality of Section 1(1)(2) of the Gastgewerbe-Verordnung.

According to Section 1(1)(2) of the Gastgewerbe-Verordnung, the professional qualification for the establishment of a hotel and catering business is proven by ‘certificates of successful completion of a university course of study or a university course of study leading to the award of an internationally recognised master’s degree’. According to Section 16 (2) of the Austrian Trade Regulation Act (Gewerbe-Ordnung, GewO), a certificate of competence is proof of certain professional and commercial qualifications required for the independent performance of the activities specific to the trade concerned.

However, according to the VfGH, the activities specific to the hospitality industry are not limited to mere customer contact with completely different customer personalities, as argued by the Austrian Federal Minister of Labour and Economic Affairs.

Rather, the VfGH is unable to understand objectively to what extent the mere possession of a university degree that is not relevant to the hospitality industry can guarantee the necessary professional and commercial training standards and justify the granting of access to the hospitality industry without any proof of subject-specific knowledge, while subject-specific training content is required in all other cases.

The provision was therefore repealed as unlawful on the grounds of breach of the principle of equality.

VfGH V 362/2023-7 (28 February 2024)