Admission to folk festival denied: VGH Munich confirms consideration of food law deficiencies in selection decision

No admission despite improvement: fulfilment of contract and reliability count – retrospectively as well!

The Bavarian Higher Administrative Court (VGH) has with Beschluss vom 08.04.2025 dismissed the appeal of a showwoman who sought to obtain Zulassung zum kommunalen Volksfest "Augsburger Frühjahrsplärrer 2025" in the interim relief proceedings. The decision contains fundamental statements on the assessment of the criteria "fulfilment of contract and reliability" in municipal selection decisions and on the relevance of food law objections.

Why was admission refused?

The applicant had applied with a confectionery sales stand for participation in the Augsburg Frühjahrsplärrer. Her application was rejected with reference to limited space conditions and a lower rating compared to other applicants. Under the criterion "fulfilment of contract and reliability" (Criterion O), she received only 5 out of 20 possible points, as significant food law deficiencies had been identified at an event in 2023. The applicant considered this assessment to be erroneous and sought admission via § 123 VwGO in interim relief proceedings.

Legal assessment by the court

The VGH confirmed the first instance decision of the VG Augsburg (Beschluss vom 11.03.2025 – Au 7 E 25.286) and stated that the application for the issue of an interim order was unfounded due to lack of an order claim. The selection discretion of the respondent had been exercised without error. The allocation decision was based on a points system covered by § 5 Abs. 3 Satz 2 of the municipal Plärrer Statute with 16 assessment criteria, whereby the criterion "fulfilment of contract and reliability" explicitly required evidence of good performance at previous events.

The Senate clarifies that the allocation of points is not a mere "counting criterion". The mere number of participations is not sufficient; rather, a flawless performance of previous events is required for a maximum rating. The interpretation of the assessment criteria by the City of Augsburg, which substantively distinguishes between the number of participations (criterion "folk festival experience") and conduct (criterion "fulfilment of contract and reliability"), is appropriate and in conformity with the law.beanstandungsfreier Ablauf of the previous events is required for a maximum rating.

The identification of food law deficiencies in 2023 was capable of raising doubts about reliability. The objection that the deficiencies have since been remedied is irrelevant. This is because what matters is not the current state, but the past conduct ("evidence of good performance"). The interpretation of the assessment criterion O is consistent with the principle of equal treatment under Art. 3 Abs. 1 GG and was not carried out arbitrarily or in an irrelevant manner.

The requirement for transparency was also met: the fact that the assessment discretion is not specified in every detail is inherent to the character of administrative provisions that guide discretion in the field of event allocation.

The decision is in particular also compatible with the fundamental right to freedom of profession (Art. 12 Abs. 1 GG), since the restriction is supported by objective reasons and is proportionate. The downgrading due to significant deficiencies relevant in the food law area is suitable, necessary and appropriate to ensure smooth and hygienic event operations.

Recommendation for event vendors

The decision illustrates that event organisers are entitled to auch einmalige, aber gravierende Verstöße gegen öffentlich-rechtliche Vorschriften consider in the selection of participants. What matters is the "evidence of good performance" in the sense of objection-free participation in the past. Remedied deficiencies may remain disregarded in the assessment, as long as the original breach is to be classified as serious.

Our advice

Showmen and business operators should not only rely on many years of participation experience, but in particular on nachvollziehbare Nachweise eines beanstandungsfreien Betriebs. Respond promptly to any fault reports and comprehensively document the remedying of objections. We are happy to support you in addressing administrative allegations, in communicating with event organisers and in pursuing your rights in court.

Contact AVANTCORE Rechtsanwälte – we will represent you competently in öffentlichen Veranstaltungs- und Gewerberecht.