At the Christmas market, the role of appearance is strengthened: the Higher Regional Court (OVG) Bremen grants municipalities greater scope for design through access restrictions in market admissions.

Municipalities organising a Christmas market may exclude exhibitors whose offerings do not fit the concept on justified grounds.

The Higher Regional Court (OVG) Bremen has by order of 26. September 2025 (1 LA 400/24) rejected an exhibitor's application for admission of an appeal against the decision of the Regional Court (VG) Bremen. The decision concerns the disputed non-admission to the Bremen Christmas Market 2024 and clarifies the conditions under which organisers may exclude applicants from market operations.

The court makes clear: participation rights under § 70 GewO do not exist without limitation. The organiser of a designated market event has a broad discretionary power, which administrative courts may only review to a limited extent.

Participation right under § 70 GewO – merely a claim to discretion-free decision-making

According to § 70 Abs. 1 GewO, "anyone who belongs to the participant group" may take part in a designated event. However, this principle is restricted by § 70 Abs. 3 GewO: the organiser may exclude individual applicants on materially justified grounds.

In practice, this means:
An exhibitor or showman has no legal claim to participation, but merely a claim to error-free exercise of discretion. The authority or municipality may apply selection criteria such as quality, design, variety of offerings or safety aspects and lay them down in a admission guideline.

These principles apply not only on the basis of the Trade and Crafts Code, but also find application through municipal autonomy within the framework of municipal market regulations. The aim is always the preservation of a balanced and harmonious overall image of the event – a legitimate public interest that outweighs the individual interest of an applicant can outweigh.

The issue: Rejected application for the Christmas market with "Christmas pyramid" and "Christmas tree"

The claimant, a showman, applied for the Bremer Weihnachtsmarkt 2024 with three imposing structures: a 12 m high Christmas pyramid as well as two Christmas trees with 25 m and 40 m height.

The organizer – the City of Bremen – rejected the application because the planned structures did not fit the design concept of the market. The city pursues a concept that provides for single-storey and height-wise homogeneous bar establishments in order to ensure a uniform and historically appropriate market image.

Out of a total of 250 applications for the Bremer Weihnachtsmarkt 149 were admitted. According to the Zulassungsrichtlinie für Volksfeste und Marktveranstaltungen der Stadt Bremen the primary selection criterion was the quality of the businesses, specified by appearance, construction and integration into the historical environment.

The claimant felt himself arbitrarily disadvantaged and objected that the city had applied non-substantive criteria. Height or number of storeys was not a permissible selection criterion, especially since the city centre itself is characterized by multi-storey buildings. Furthermore, the equal treatment principle of Art. 3 Abs. 1 GG was violated because other tall structures – such as a Ferris wheel or the city's Christmas tree – had been admitted to the Christmas market.

The decision of the OVG Bremen: Design concept takes precedence

The Higher Regional Court of Bremen (OVG Bremen) did not follow this argument. It confirmed the view of the Administrative Court that the city had acted lawfully.

Broad design discretion under § 70 GewO

The organizer is granted under § 70 Abs. 1 and 3 GewO a broad assessment and design discretion. This encompasses the determination of selection criteria as well as the design of the overall and site concept. The court emphasized that this exercise of discretion is subject to judicial review only for discretionary errors – that is, for arbitrariness, irrelevant considerations or serious violations of equality.

Substantive selection criteria

The orientation towards a homogeneous appearance is according to the court substantively justified. The height and number of storeys of bar establishments may serve as a selection criterion if the objective is to create a uniform, attractive market image.

The OVG emphasized that the city did not focus on the number of storeys, but rather primarily on the absolute height of the establishments. This decision was comprehensible and served the preservation of the historic city image.

No breach of the equal treatment principle

Other structures such as fairground rides or the city's Christmas tree werenot comparable, as they served other purposes. The different treatment was thereforesubstantively justified.

Remedying formal defects

Even if the rejection notices were initially brief in their reasoning, the reasoning could be effectively supplemented during the court proceedings pursuant to§ 45 BremVwVfG. The objection that effective legal protection was lacking (Art. 19 Abs. 4 GG) also did not succeed, since the claimant had sufficient time to apply for interim legal protection.

Result: The appeal was not admitted. The decision of the VG Bremen isfinal and binding.

Legal assessment and classification

The decision fits into an established line of administrative court case law:
Previously, the OVG Bremen (Beschl. v. 15.08.2019 – 2 LA 296/18) had emphasized that organizersmay establish criteria in advance for the selection of market participants, provided that these arecomprehensible, transparent and applied without arbitrariness.

Thus the court strengthens the scope of discretion of the municipalities in the organization of a Christmas market and other public events. Thedesign freedom also encompasses aesthetic, urban planning and image-related aspects – such as the objective of preserving a traditional, "North German-historical" market appearance for the Christmas market.

Practice note for market and festival operators

For showmen, caterers and event organizers, the following applies:
Aright to participate in a Christmas market or folk festival exists onlyin the event of a decision free from discretionary errors. Anyone who applies should thereforeadhere closely to the admission guidelines and already in the application convincingly demonstrate that their own businessfits into the event's concept.

Recommendations from a legal perspective:

• Guideline analysis: Examine the currentadmission guidelines of the municipality carefully before applying.
• Adapt design: Pay attention to requirements regardingheight, façade design, lighting and material.
• Transparent communication: Inquire about criteria and concepts at an early stage to avoid later conflicts.
• Use legal remedies: Should the application be rejected, you shouldimmediately request access to the file and if necessaryseek interim legal protection. The experts atAVANTCORE Rechtsanwälte in Stuttgart are available to provide legal advice in the field ofadministrative law to the page.