Rejection of the interim writ against entry into effect of the “orderer principle”
> August 2015
The Federal Constitutional Court (BVerfG).
Problem:The “Act for limiting rent increases in areas with accommodation shortages with and to reinforce of the orderer principle in accommodation brokering” (MietNovG) entered into effect on 1 June 2015. Accordingly it is now stipulated that the broker should be paid by the party that engages him. Any other agreement is invalid. This applies for the brokering privately used accommodation.
Facts and circumstances:
Applications for interim injunctions were issued by two real estate brokers who felt that their commercial basis was jeopardised by the “orderer principle” and a tenant who complained against infringement of his right to freedom of contract. At the same time, several constitutional actions against MietNovG are pending.
Ruling of the BVerfG:
The Constitutional Court (BVerfG, ruling of 13 May 2015 – 1 BvQ 9/15) does not see any need for an injunction and rejected the application. The prerequisite for provisional settlement by means of an interim injunction is that this is urgently required for the protection against severe disadvantages, prevention of threatened violence or for another important reason. The disadvantages resulting from failure to issue to injunction and success of the main case must be balanced, on the one hand, and the disadvantages of issue of the injunction and the lack of success of the constitutional complaint. An existential risk for brokers was not sufficiently demonstrated by the applicants, as they are regularly not exclusively as accommodation of brokers in the sector regulated here (private). It is therefore not demonstrated that their existential threat to their commercial operation and thus also would not result in irreversible damages. The decisions above the constitutional complaints and are reserved to the main proceedings, BVerfG has not issued a ruling for this reason.
We must await the results of the pending constitutional actions.