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Refusal / Withdrawal
A refusal of the employee license or the withdrawal by the Federal Employment Agency (BAfA) is possible in various cases. A refusal is always due to the lack of reliability of the applicant, which can be due to personal reasons (criminal offenses, poor financial circumstances, tax debts). The prognosis is always decisive: Does past behavior suggest future misconduct?
In addition, difficulties regularly arise if the applicant does not have sufficient expertise. After all, without sustained knowledge of the AÜG regulations, proper application of the tariff cannot be guaranteed. Often, the permit is withdrawn for this reason after the first examination at the latest. I.d.S. it can be useful to provide evidence of several days of training on the law of employee leasing.
If the financial capacity is not given or if there are tax or social contribution debts, it is often sufficient here to settle existing payment arrears.
Even if the applicant – or, for example, the managing director of another company – has already had his leasing license revoked, this can hinder the granting of the license. Of course, this depends on the individual case and the severity of the past violations.
Previous criminal convictions of the applicant or unreliability under trade law also have a negative effect, although here, too, one-time failures generally do not justify refusal of the license.
Previous criminal offenses
What do administrative practice and the courts say about the refusal of an ANU license in the case of previous criminal offenses?
A special legal form of the general reliability regulation exists in § 35 GewO (OVG Hamburg v. 05.04.2005 – 1 Bs 64/05). If facts exist that suggest the unreliability of the trader or a person who manages the trade with regard to this specific trade, the competent authority must prohibit the exercise of the trade in whole or in part if this is necessary for the protection of the general public or the employees of the business.
However, it also follows from Section 35 (3) GewO that it is not sufficient for the assumption of unreliability that only one criminal offense has been committed. Instead, further criminal acts would be required. As early as 1966, the Federal Administrative Court (BVerwG) ruled (in its judgment of March 29, 1966 – I C 62.65) that previous conduct by the entrepreneur may be punished solely on the basis of administrative offenses and criminal offenses and not, for example, by refusing to grant the trade license. Whether or not the applicant is to be classified as reliable thus depends solely on the repetition(-risk) of the realization of corresponding criminal offenses.