Sven Jan Arndt

Thebackground:
Veterinarian Susanne Arndt ran three small animal practices in the Karlsruhe area in the usual legal form for freelancers - the one-man company. As the business grew, she wanted to convert it into a limited liability company (GmbH). However, the transformation law requires a registered legal form for this (even if it is only a registered merchant). However, the latter is not possible for a freelancer, as he is not a merchant. Ergo, the only way was to found a partnership company consisting of freelancers (in this case: a veterinarian and a business economist). The partnership was founded and registered by the Mannheim District Court.

The case:
The Baden-Württemberg Chamber of Veterinary Surgeons applied for the deletion of this company on the basis of § 21a BO, as according to its professional regulations a partnership company is only possible among veterinarians. Parodoxically, at the same time it pointed out to the two partners that they could implement their plan in the form of a limited liability company!

The decision of the BGH of 15.02.2022 - II ZB 6/21 - OLG Karlsruhe / AG Mannheim:
"A partnership between a veterinarian and a business economist is permissible under the Heilberufekammergesetz of the state of Baden-Württemberg."

The BGH's reasons:

The professional code of conduct of the LTK BW is not a formal state law, which is why the BGH was able to decide without consulting the BVerfG.

§21a BO violates the precedence of §30a para. 1 sentence 2 of the Baden-Württemberg Chamber of Health Professions Act (hereinafter: HBKG BW), according to which veterinarians can run a practice together with persons who belong to a state training profession in the health sector, a natural science profession or a social education profession, pursuant to §2 para. 1 no. 3 HBKG BW.

The interprofessional associations of chamber members permitted by the HBKG BW cannot be restricted by the statutes of the chambers.

Accordingly, there are also no public welfare concerns that preclude interprofessional cooperation with a business economist (inter alia because of Art. 12 para. 1 GG - free exercise of profession, but also §30a HBKG BW is not to be understood conclusively).

Such cooperation is also not contrary to the purpose of the HBKG BW, because "the definition of the permitted forms of professional practice is intended to ensure that compliance with professional duties can be enforced in all legal forms of health professional activities".

At this point, however, the reasons for the judgement become exciting, because it goes on to say:

"The legislator wanted to exclude commercial activities as a health professional. Commercial activities are carried out by commercial partnerships and legal persons, but not by members of the liberal professions... to which a business economist... belongs. It is only for the health professional activity in legal entities that the legislator has therefore established detailed requirements in § 30a, para. 2 HBKG BW in order to exclude a commercial health professional activity."

And that is particularly exciting if you take a closer look at this paragraph:

§ 30a (2) HBKG BW:
The health professional activity for a legal person under private law requires that

1. The object of the company is the exclusive performance of health care activities,

2. all shareholders are persons pursuant to paragraph 1 sentence 2,

3. the majority of the shares in the company and the voting rights are held by members of the Chamber pursuant to § 2 paragraph 1 numbers 1 to 3 or number 5 and shares in the company are not held for the account of third parties,

4. at least half of the persons authorised to manage the business are members of the Chamber pursuant to § 2 paragraph 1 numbers 1 to 3 or number 5,

5. a third party does not participate in the profits of the company,

6. there is sufficient professional liability insurance for the legal entity under private law and the professionals working there, and

7. it is ensured that the health professional activity is carried out by the members of the Chamber in accordance with § 2 paragraph 1 numbers 1 to 3 or number 5 on their own responsibility, independently and non-commercially.

Further details are regulated by the respective professional code of conduct."

If one now follows this passage of the HBKG BW, to which the BGH explicitly refers - what does this mean for chains like Evidensia or Anicura in Baden-Württemberg? Wouldn't the State Veterinary Chamber of Baden-Württemberg have to intervene immediately and ban them?

The BGH's comments on the veterinarian's duty of confidentiality are also extremely interesting:

"Finally, a veterinary surgeon (§ 2 para. 1 no. 3 HBKG BW) - unlike the members of the chamber further covered by § 30a para. 1 sentence 2 ... has no right to refuse to testify pursuant to § 53 para. 1 no. 3 StPO. In contrast to the other members of the chamber ... a veterinary surgeon does not have a special relationship of trust with his client, which includes and requires the protection of confidentiality interests worthy of protection (cf. BVerfGE 38, 312, 323 f.)."

Conclusion from our point of view:

• Not everything that state veterinary associations write in their professional regulations is sacrosanct.
• With the clear reference to § 30a para. 2 HBKG BW, the State Veterinary Chamber of Baden-Württemberg has been given a clear mandate to check the chains operated by financial investors here and to intervene accordingly.
• We are curious to see whether this will happen and thus ensure legal certainty!