(No) Christmas market? Market determination failed – requirements for private organisers strengthened

The key legal issues of the OVG NRW decision on market determination

The Higher Regional Court of North Rhine-Westphalia (OVG NRW) hasOrder of 17.11.2025 (4 B 1206/25) made a decision important for both municipalities and private organisers regarding market determination pursuant to §§ 69, 69a GewO. The focus is the question of whether applicants seeking toorganise a (Christmas) market have a claim to participate in a fair selection process – and what requirements a request for market determination must necessarily meet. Particularly relevant for practice: the obligation to demonstrate the availability of all intended event spaces at the time the application is filed.

The exact facts: Christmas market on ecclesiastical land – but without usage rights

The City of M. does not itself carry out theorganisation of "its" Christmas market for the years 2025 to 2029, but merely determines a market pursuant to § 69 GewO on application by private third parties, who then execute it. The applicant and a marketing company that had already organised the market in previous years competed for thismarket determination.

The applicant planned aChristmas market incorporating several non-municipal spaces – in particular a church square – and stated that usage had been "pre-arranged". However, there was in fact an ongoing permission agreement between the parish and the competing intervener, which retained thesole usage right there. The applicant could not produce written evidence of this.

The city rejected her application for market determination and intended to determine the market in favour of the intervener. Against this, the applicant applied for interim injunctive relief.

Legal considerations: no claim to a selection process without a viable application for market determination

The Higher Regional Court (OVG) confirms the decision of the Regional Court (VG) and dismisses the appeal. The applicant has alreadyfailed to make credible her claim to a determination order. The decisive point is:

• A claim to a selection process under Art. 12(1) in conjunction with Art. 3(1) of the German Constitution exists only if the applicant has submittedan application capable of being determined in the first place.
• No such application was made here because the planned market was also to take place on spaceswhich the applicant was not actually entitled to dispose of.
• The determination of a market obligates, pursuant to § 69(2) GewO, performance – including on all spaces applied for. Anyone who cannot fulfil this obligation due to lack of power of disposal does not submit an application capable of being approved.

The court emphasises that it is the responsibility of applicants toensure in advance space availability. As long as the municipality does not operate the market asits own public facility, public procurement law standards do not apply. Even partial municipal involvement in the intervener changes nothing: it remains a legally independent private entity which operates the market in its own responsibility.

The court therefore reaches the clear conclusion:

Anyone applying for the determination of a private market mustfully demonstrate at the time the application is filed that all intended spaces are available. If this evidence is lacking, the application must be rejected on grounds of public interest alone (§ 69a(1) No. 3 GewO).

Practice recommendations for municipalities and private organisers

For municipalities:

Make clear whether a market is operated as apublic facility or – as here – is implemented solely through application by private organisers for market determination. Only in the former case do procurement law transparency and equal treatment requirements apply. In the case of purely private market determination, responsibility remains with the applicant.

For private organisers:

Secure in good time contractual usage rights to all intended spaces. Without credible evidence of availability, the application for market determination is fundamentally deficient – and there isno claim to participation in the selection process. In particular with attractive non-municipal spaces (church squares, private land, shopping centres) a written usage permission is mandatory.

Specific recommendation from our firm:

Anyone wishing to operate a market, city festival or other event capable of determination should before filing the application develop a comprehensivespace strategy. This includes clarifying all ownership relationships, usage rights and contractual obligations. We recommend having an application for market determination reviewed legally in order to avoid rejections and at the same time fully exhaust themunicipal requirements. The experts atAVANTCORE Attorneys in Stuttgart support you with legal advice in administrative law in formally complete, legally sound applications and to secure your market opportunities in competition.