However, they are often faced with the question of how they can remain competitive in comparison to newer and more "modern" festivals and markets. Organizers and traders often come to the conclusion that a new concept or "image" is the only way to maintain demand. The desired change of image almost inevitably entails a (partial) change of market participants. The organizer now has to decide which participants fit the new concept and which do not.
In any case, the individual stand operator is entitled to a discretionary selection of market participants. Case law regularly requires a two-stage procedure for this (e.g. VGH Munich, judgment of 31.03.2003 - 4 B 00.2823).
First step: Selection according to investment and personal criteria
In the first step, the number of applicants is reduced on the basis of investment and personal criteria, which must be specified in detail. The usual investment and personal criteria are
- Priority ("first come, first served")
- Well-known and proven
- Attractiveness for the public
- Local presence
However, these criteria are not always easy to apply. The question of whether a stand operator has proven itself in the past, for example, is subjective, as is the assessment of attractiveness to the public. In addition, retaining established applicants must not lead to the complete exclusion of new applicants(OVG Lüneburg, decision of 11.08.2015 - 7 ME 58/15). In some cases, case law even considers the criterion of local residency to be inadmissible(VG Minden, judgment of 13.08.2004 - 3 K 2206/04).
Second step: lottery procedure or rotation system
If there are still more applicants than stands after the application of the system and personal criteria, the lottery procedure and the rotation system help to make a lawful selection decision (for the lottery procedure, see OVG Lüneburg, judgment of 16.06.2005 - 7 LC201/03). Particularly when using a rotation system, however, it is necessary to establish fairness between the individual applicants in the long term. This is problematic if the group of participants is not constant (on the rotation system, see VG Lüneburg, judgment of 17.09.2003 - 5 A265/02).
Conclusion
The requirements for the legality of a selection decision by market participants are extremely high. Especially when developing a new concept for a market or a public festival, many (sometimes new) legal questions arise for the allocation of stands. Good pre-structuring with sufficient lead time and clarification of the legal and factual issues helps to avoid mistakes.
Dr. Fiete Kalscheuer