From the editors
The new German Prostitutes Protection Act
The new German Prostitutes Protection Act
The new Prostitutes Protection Act Prostituiertenschutzgesetz (ProstSchG) |(Guide in English)| came into force in Germany on 1 July 2017. In Article 2, it amends §3 of the Prostitution Act Prostitutionsgesetz (ProstG) of 20 December 2001, which is still in force, with the following wording:"(1) Instructions prescribing the whether, nature and extent of the provision of sexual services are inadmissible.
(2) In the case of prostitutes, the limited right to issue instructions within the framework of dependent activity shall not preclude the assumption of employment within the meaning of social security law."
At the same time, the new law entails a large number of stricter regulations in the prostitution sector. These include
1. Obligation for prostitutes to register:
(1) Anyone wishing to exercise an activity as a prostitute must notify the authority in whose area of responsibility the activity is to be exercised in person before taking up the activity.
(2) Insofar as a state has made a deviating regulation regarding the territorial validity of the registration certificate in accordance with § 5 paragraph 3 sentence 1, the activity in this state must also be registered with the competent authority there.
(3) The obligation to register exists irrespective of whether the activity is carried out independently or within the framework of an employment relationship.
2. Prostitution business permit:
Anyone wishing to operate a prostitution trade must obtain a permit from the competent authority. The permit can be limited in time. The permit must be extended upon application if the conditions for granting the permit continue to apply.
3. Health advice for prostitutes:
For persons who are active as prostitutes or who wish to take up such an activity, health counselling is offered by an authority responsible for the public health service. The Ferderal States may decide that another authority is responsible for providing health counselling.
4. Condom requirement & advertising ban:
Introduction of a condom obligation for prostitutes and their customers during sexual intercourse, followed by a ban on advertising for paid sexual intercourse without a condom.
For operators of prostitution facilities in North Rhine-Westphalia, there is a leaflet from the Ministry of Economic Affairs, Energy, Industry, SMEs and Crafts NRW, which provides information on the enforcement of the Prostitutes Protection Act under trade law.
"Information for operators of prostitution facilities in North Rhine-Westphalia:
The Prostitutes Protection Act (ProstSchG), which comes into force on July 1, 2017, requires the prostitution trade to obtain a permit. According to the wording of the Act, a prostitution trade is a trade in which a person commercially offers services in connection with the provision of sexual services by at least one other person or provides premises for such services by
1. operating a prostitution centre,
2. providing a prostitution vehicle,
3. organising or conducting a prostitution event, or
4. operating a prostitution agency.
This also includes housing prostitution.
Subject to the detailed statutory regulations, the following information is intended to give you an overview of the forthcoming new regulations. The explanations are only intended for the operators of prostitution facilities. The respective district authorities are responsible for the enforcement of the ProstSchG under commercial law.
1. obligation to obtain permission
If you want to run a prostitution business, you need the permission of the competent authority. The following documents are required for a permission:
(1) Operating concept
The operating concept shall describe the essential features of the enterprise and the precautions taken to comply with the obligations under the ProstSchG. This includes, for example, a description of the typical organizational processes and the framework conditions that the applicant creates for the provision of sexual services, measures to ensure that no persons under the age of 18 are employed in the prostitution business of the applicant for the provision of sexual services, as persons under the age of 21, are victims of trafficking in human beings by third parties for the purpose of taking up or continuing prostitution, measures to reduce the risk of transmission of sexually transmitted infections, other measures in the interest of the health of prostitutes and third parties, measures to ensure the safety of prostitutes and third parties and measures to prevent the presence of persons under the age of 18. In addition, all persons must be named in full and their personal details given, who are entrusted with the duties of deputy, plant management and supervision, tasks within the framework of compliance with the householder's right or house rules, admission control and guarding in the company, even if they are not in an employment relationship with them.
(2) Building permit/usage permit of the responsible building authority
(3) Ground plan drawings (3-fold)
(4) Rental agreement or proof of ownership (copy)
(5) Certificate of good conduct ("Certificate of good conduct for submission to an authority"; document type O), for legal entities for the legal representative(s)
A "Certificate of good conduct for submission to an authority" must also be submitted for persons who are intended to represent, manage or supervise the enterprise.
(6) Excerpt from the Central Register of Trades (document type 9), in the case of legal entities for the legal entity and the legal representative(s)
(7) Certificate of the tax office in tax matters, in case of legal entities for the legal entity and the legal representative(s)
(8) in the case of legal persons, an extract from the commercial register
(9) Partnership agreement, if the business is organised in a form of a private company. After examination of the application and acceptance of the business, permission may be granted subject to conditions and/or a time limit. The granting of a permit is subject to a fee. The fees are charged by the competent enforcement authority on a time and material basis. The reliability of the operator of a prostitution facility as well as that of the persons employed to represent, manage or supervise the business are reviewed again after three years at the latest.
2. minimum requirements for a prostitution establishment
As the operator, you must ensure that the protection of prostitutes, visitors, residents and the general public is guaranteed. This includes at least that the rooms used for sexual services are not visible from the outside, have an appropriate emergency call system and that the doors of the individual rooms can be opened from the inside at any time. The prostitution facility must be adequately equipped with sanitary facilities for prostitutes, employees and customers, suitable lounges and break rooms for prostitutes and employees and individually lockable storage facilities for personal belongings of prostitutes and employees. The rooms used for sexual services may not be used as bedrooms or living quarters by prostitutes. Transitional regulations exist for prostitution facilities that existed before 27 October 2016.
3. essential operator duties
Essential operator obligations are to allow only prostitutes with valid registration and/or Alias certificate in the prostitution trade and to draw their attention to the duty to register and the duty to recurrent health consultations, to enable the prostitutes at any time to receive the obligatory health consultations from the authority responsible for the public health service or to seek advice and examination offers, in particular the health authorities and other health or social counselling service during their business hours, to observe due diligence in the selection of prostitutes working in their business as well as the personnel they employ, to provide prostitutes with evidence in text form of the payments made by the prostitute to the operator; this also applies: to the operator's payments to the prostitute, to the omission of specifications regarding the nature and extent of the provision of sexual services, to observe recording and storage obligations, to draw attention to the obligation to use a condom by means of a clearly visible notice and to tolerate surveillance measures by the competent authority. There is a comprehensive ban on advertising, inter alia with regard to sexual intercourse without a condom or with pregnant women, as well as for the protection of the general public and young people. Violations of individual provisions of the Prostitutes Protection Act can be punished with fines of up to EUR 50,000.
4. transitional arrangements
Anyone who has operated a prostitution business before 1 July 2017 must report this to the competent authority by 1 October 2017 and submit an application for a licence by 31 December 2017 (with the documents listed under "1. Licence requirement"). A certificate will be issued for the notification and the application submitted. The continuation of the prostitution business is deemed to be permitted until a decision has been made on the application for a licence if the application deadline (31 December 2017) has been met.
Attention:
You must comply with your duty of care when selecting the prostitutes working in your business and the staff you appoint, with your obligations to check and notify, and with your obligations to record and retain records by 31 December 2017 at the latest! This general information is for general information purposes only. A concrete and binding inspection will be carried out by the responsible authorities on site.
April 2017
Ministry of Economics, Energy, Industry, SMEs and Crafts of the State of North Rhine-Westphalia, 40190 Düsseldorf".
Further information on the Prostitutes Protection Act:
https://www.prostituiertenschutzgesetz.info/en/
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