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Germany – Arcades win out in Freiburg over order to close

By - 4 February 2022

German law firm BENESCH & PARTNER said it has successfully defended the interests of numerous arcade operators in the city of Freiburg against the public order office of the city of Freiburg. 

In a ‘campaign’ by the city of Freiburg that was unique in Baden-Württemberg, all arcade operators in the city area had to close in January.

Contrary to promises previously made, the Office for Public Order of the City of Freiburg decided just a few days before Christmas Eve to not rule on the applications of the arcade operators. With most of the permits granted expired on December 31, 2021, this was ‘particularly explosive.’ Many of the operators were therefore faced with a legally threatening situation shortly before the holidays.

After consultation with the regional council, the city of Freiburg decided not to rule on the applications that had already been received from the arcade operators. Instead, the decision on the applications and the upcoming selection decisions should not be made until spring 2022.

Lawyer Mirko Benesch said: “In doing so, the city was most likely pursuing the goal of taking advantage of the worrying case law of the VGH Baden-Württemberg, which was introduced this year. After various resolutions in recent months, previous operators had to demonstrate what is known as seamless continued operation to protect them from child and youth facilities. However, if an operator’s license expires and there is uncertainty as to whether he can continue to operate, the VGH Baden-Württemberg has recently seen it as his duty to initiate preliminary legal protection proceedings independently and at an early stage.”

“If the operators did not file an application for urgent legal protection with the administrative court shortly before or during the public holidays, the city would exclude the old operator from a selection decision and reject it because of a children’s and youth facility within a radius of 500 meters.”

“The action taken by the city of Freiburg can be described as disturbing insofar as we were told with an open and transparent selection process in the middle of the year and last autumn. One could therefore assume that the procedure would be completed properly and promptly by the city before the permits expired, especially since we were promised a decision on the applications by December 20, 2021 at the beginning of December,” Mr. Benesch added.

The BENESCH & PARTNER law firm was therefore forced to submit numerous urgent applications to the administrative court before the turn of the year between the public holidays. Nevertheless, the arcade operators had to close their hall on January 1, 2022, as a decision on the urgent applications had not yet been made.

“The city was obliged by the administrative court to temporarily tolerate the continued operation of arcades, with the exception of network arcades,” Mr. Benesch added.

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