Bonn Kiosk Operator Permitted to Offer Services on Sundays and Holidays
North Rhine-Westphalia’s Administrative Court Reverses Decision
The Higher Administrative Court (OVG) of North Rhine-Westphalia in Münster has ruled in an expedited proceeding that the operator of a so-called vending machine kiosk in Bonn may also offer services on Sundays and holidays. This decision overturns a previous ruling by the Administrative Court of Cologne.
According to the OVG’s provisional assessment, a vending machine kiosk that operates around the clock without personnel on Sundays and holidays does not fall under the regulations of the Shop Opening Hours Act (LadÖG) in North Rhine-Westphalia. The ruling is not open to appeal (Ref.: 4 B 976/24).
The provider operates a vending machine kiosk in Bonn in a business premises with 15 individual machines, each offering 40 to 50 items. No sales personnel are employed. The city had previously prohibited operation on Sundays and holidays. In the lower court, the supervisory authority had prevailed.
However, the OVG sees no reason for this. In the expedited proceedings, the judges ruled that vending machines operated without personnel outside of general shop opening hours do not fall under the law because multiple machines are set up in one business premises. According to the OVG, such machines have been permitted to be used on all days of the week since 1962 and were no longer covered by the nationwide Shop Closing Act (LadSchlG).
According to the OVG, this has not changed in the North Rhine-Westphalia Shop Opening Hours Act, which was enacted after the federal reform of 2006. The OVG in Münster stated that the legislature intended to allow greater flexibility for entrepreneurs with these automated vending facilities. The court emphasized that the widespread assumption that only classic or individual vending machines are exempt from adhering to shop closing times is incorrect.
OVG’s Rationale
The OVG supported its decision with the following arguments:
- The Shop Opening Hours Act in North Rhine-Westphalia only applies to shops and salesrooms.
- According to the Federal Court of Justice (BGH), a vending machine kiosk is not a shop or salesroom in the legal sense.
- The kiosk in question is a self-service facility that is operated without personnel.
- Vending machines have been exempted from the Shop Closing Act since 1962.
- The Shop Opening Hours Act in North Rhine-Westphalia did not change this.
- The legislature intended to grant entrepreneurs more flexibility for automated vending facilities.
Implications
The OVG’s decision has implications for the operation of vending machine kiosks in North Rhine-Westphalia and potentially other federal states. Operators of such facilities may now potentially offer services on Sundays and holidays without violating the Shop Opening Hours Act.
The ruling also highlights the distinction between traditional shops, vending machines, and automated vending facilities. It is important to note that the exemption from shop closing times only applies to automated vending facilities that operate without personnel.
