{"id":13365,"date":"2026-04-10T10:51:19","date_gmt":"2026-04-10T10:51:19","guid":{"rendered":"https:\/\/www.mth-partner.de\/?p=13365"},"modified":"2026-04-10T11:08:06","modified_gmt":"2026-04-10T11:08:06","slug":"konkurrenzschutz-und-betriebspflicht","status":"publish","type":"post","link":"https:\/\/www.mth-partner.de\/en\/competition-protection-and-operational-duty\/","title":{"rendered":"Protection from competition and obligation to operate \u2013 tenant rights in shopping centres and retail units"},"content":{"rendered":"

Why the Federal Court of Justice declared a frequently used clause combination invalid and what this means for commercial tenants. As of: April 2026<\/span><\/i><\/p>\n

Note: <\/b>This article is for general information purposes and does not replace individual legal advice. Commercial lease agreements are individual; the scope of non-competition protection always depends on the specific contract and the specific situation.<\/span><\/i><\/p>\n

Your business is doing well. Then, two shop units down, a competitor opens with an almost identical product range. The landlord has rented the premises to them. Your sales drop. And your lease agreement states: obligation to trade. You must remain open, are not allowed to change your product range, but can do nothing about the competition.<\/span><\/p>\n

This is the reality for many commercial tenants in shopping centres and office buildings. With its landmark ruling of 26 February 2020 (XII ZR 51\/19), the Federal Court of Justice has declared precisely this situation to be invalid. This article explains what this means for existing contracts, what rights you have as a tenant, and when rent reduction or termination may be considered.<\/span><\/p>\n

The case of the BGH:<\/b> In a shopping centre, a tenant had leased a fast-food restaurant whose core offering was potato dishes. Their standard contract included a duty to trade and a binding product range, while simultaneously excluding competition, product range, and trade protection. Over the course of the lease, other providers of potato dishes opened in close proximity. The tenant terminated the lease with immediate effect. The Federal Court of Justice (BGH) ultimately ruled in their favour: the combination of clauses is invalid.<\/span><\/p>\n

Here is an overview of further typical errors in commercial lease agreements in our article on <\/span>Most common errors and risks in commercial lease agreements<\/span><\/a>.<\/span><\/p>\n

\"Late<\/p>\n

<\/span>What is non-competition protection in commercial tenancy law?<\/b><\/span><\/h1>\n

Non-competition protection means: the landlord is not allowed to rent out premises on the same property or in the immediate vicinity to a direct competitor of the tenant. The idea behind this is that someone who rents premises for business purposes can expect the landlord not to poach their customers.<\/span><\/p>\n

This protection exists in two forms:<\/span><\/p>\n

<\/span>Contractual protection against competition<\/b><\/span><\/h2>\n

Even without an express agreement in the lease, there is competition protection. This is derived from the landlord's duty to provide the rented property in a condition suitable for contractual use (\u00a7 535 BGB). The Federal Court of Justice recognised this early on (BGH, NJW 1979, 1404): Whoever rents out rooms for the operation of a specific business is not permitted to allow a competing business in other rooms of the same building or on immediately adjacent properties.<\/span><\/p>\n

Requirement<\/b> A specific business purpose must have become the subject of the contract. If the lease merely names \u201ebusiness premises\u201c without a more precise purpose, the protection inherent in the contract is weaker. The more precisely the contractual purpose is defined (\u201eoperation of a chiropody practice\u201c, \u201eretail sale of sports equipment\u201c), the stronger the protection.<\/span><\/p>\n

<\/span>Contractual non-compete agreement<\/b><\/span><\/h2>\n

The protection against competition can be explicitly agreed upon in the rental agreement. Then, the specific provisions of the contract apply: which product ranges are protected, which areas the protection extends to, and whether certain exceptions apply. Contractual protection against competition often extends beyond the protection inherent in the contract in its scope.<\/span><\/p>\n

Likewise, competition protection can be contractually agreed. <\/span>excluded<\/b> develop. And this is precisely where the problem begins.<\/span><\/p>\n\n\n\n\n\n\n\n
<\/td>\nInherent in the contract<\/b><\/td>\nContractually agreed<\/b><\/td>\n<\/tr>\n
Basis<\/span><\/td>\n\u00a7 Section 535 BGB, BGH case law<\/span><\/td>\nExpress clause in the rental agreement<\/span><\/td>\n<\/tr>\n
Prerequisite<\/span><\/td>\nThe purpose of the business must be the subject of the contract<\/span><\/td>\nNo special requirements<\/span><\/td>\n<\/tr>\n
Range<\/span><\/td>\nSame plot of land and directly adjoining plots of the landlord<\/span><\/td>\nAs defined in the contract (may be extended)<\/span><\/td>\n<\/tr>\n
Exclusion possible?<\/span><\/td>\nYes, also through general terms and conditions (but not in combination with an obligation to operate + product range restrictions)<\/span><\/td>\nYes, through individual agreement or general terms and conditions (with limits)<\/span><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

<\/span>Operating obligation: What it means and when it applies<\/b><\/span><\/h1>\n

There is no statutory obligation to actually operate a rented shop. The tenant has a right to use the premises but no obligation to use them. An operating obligation only exists if it has been contractually agreed upon (Federal Court of Justice, 04.04.1979, VIII ZR 118\/78).<\/span><\/p>\n

In shopping centres, the obligation to trade is standard. The tenant undertakes to keep their shop open during the centre's core opening hours and to offer a range of goods that complies with the contract. Typical wording: \u201eThe tenant is obliged to operate and keep the rented premises open from Monday to Saturday from 9 am to 8 pm within the framework of the agreed business purpose.\u201c<\/span><\/p>\n

<\/span>Why Landlords Insist on the Duty to Operate<\/b><\/span><\/h2>\n

The landlord has a legitimate interest in shop premises being open. Any vacancies reduce the attractiveness of the entire shopping centre. Less footfall means lower turnover for all tenants. In shopping centres with turnover-based rent, the landlord also loses out directly.<\/span><\/p>\n

<\/span>Consequences of violation<\/b><\/span><\/h2>\n

A breach of the duty to operate is a breach of contract. The landlord can:<\/span><\/p>\n