So I live in Germany, and there is a restaurant about 10 minutes away from my house. I often order from there but now much less. Delivery times can vary from 1 hour to several hours… I just noticed on their website that they will cancel all orders that do not leave a tip at the time of placing the order… so you’re tipping for consistent late deliveries… on top of that you’re paying a delivery fee anyways. I don’t know but this seems very scammy to me. I usually leave a tip, but when I keep getting cold food at 22:15 when I placed the order at 18:30 I really don’t feel like I should be obligated to tip. Is this even allowed or acceptable in the German economy. (Bavaria)
1You are more likely to get a realistic answer if you post a link to that page. The exact wording is often important.– Mark JohnsonNov 9, 2022 at 7:17
8It's up to you to decide whether you want to support such an attitude towards customers with your money. For bonus points,make some noise on social media or let a local newspaper know. This sounds like they really need some negative publicity.– TooTeaNov 9, 2022 at 7:25
1@Traveller Customers cannot be forced to pay a tip. § 107 GewO - Gewerbeordnung (trade regulations): (3) The payment of regular wages cannot be ruled out in cases in which the employee receives a tip from third parties for his work. A tip is an amount of money paid by a third party without legal obligation to the employee in addition to a benefit owed to the employer.– Mark JohnsonNov 9, 2022 at 8:02
4It may very well be illegal but if you think that the Gewerbeamt would engage in a timely and efficient manner, you have way more trust in the German bureaucracy than I do. Much better recourses would be: a) stop ordering there. b) leave bad reviews and Yelp, TripAdvisor etc.– HilmarNov 9, 2022 at 12:32
2This is probably a question better suited to the Law site.– NotThatGuyNov 9, 2022 at 16:15
tl;dr: If you are not satisfied with the service provided by the restaurant, you should take your business elsewhere and write negative, but honest reviews of the establishment. That will over time solve the problem as well without legal intervention.
To answer your question if the restaurant can refuse service if you don't tip is actually a much more difficult question than it might sound. I can't find any case law on this subject, such practice is however perhaps more widespread than commonly expected and my interpretation of the law is that they in most cases actually can, at least if they demand payment up front as take-away services often do. It is for example a 'well known fact' that if you don't tip the waiters at the Oktoberfest, they will usually ignore you and don't take any further orders. It is a dirty and unfair way to conduct business, but not necessarily a violation of law.
Even if a tip indeed is legally defined as a voluntary donation by the customer, there is in German law also the concept of 'freedom of contract'. Contrary to popular belief, restaurants and other businesses in Germany are not obligated to serve or accept a customer as long as they don't violate other laws, e.g. anti-discrimantory laws and they don't even need any particular reason for doing so. If you want to enter a club or fancy establishment and the bouncer doesn't like your face, he will make use of this right, refuse you entry and be fully within his legal rights to do so. When you order food for take-away, your order must first be interpreted as a contract offer and the restaurant can, albeit with some restrictions, in most cases freely decide to accept your offer and enter a contract which binds them to deliver food, or they can simply refuse your offer and return any payment you may have done in advance.
Not tipping your server is also “dirty and unfair”. Nov 10, 2022 at 9:19
3@gnasher729 That depends very much on where you are. In some cultures, tipping is not only very uncommon, but can even be considered rude. The only culture where I can imagine that not tipping is 'dirty and unfair' is in the USA where staff is not paid properly by the employer, but must rely on tips as part of their salary. There, I am however nut sure if it is the employer, which is 'dirty and unfair' for not paying properly or if the non-tipping customer is at fault.– jarnbjoNov 10, 2022 at 11:42
I answer the question here on Travel because I think price surprises etc. often confuse travellers, and some commerces use pressure tactics to them (although the question as stated may be out of bounds).
German price information regulations (Preisangabenverordnung) require restaurants to indicate the total price of all items, inclusive of service charges.
§ 13 Gaststätten, Beherbergungsbetriebe
... (5) Die in den Preisverzeichnissen nach den Absätzen 1 bis 3 aufgeführten Preise müssen das Bedienungsgeld und alle sonstigen Zuschläge einschließen.
Obligatory tips may become a service charge, so technically, you may be able to denounce the restaurant to authorities for false advertising of prices, depending on how the demand is worded. But the authorities may choose to not care about it very much and it may not be effective to improve their services.
For tourists, the best course of action is probably to avoid restaurants requiring unclear tips, but keep in mind (e.g. at the end of meal for sit-down restaurants) if you do not want to pay tips (after understanding the local customs), you have the option not to pay.
The law in switzerland is more clear on this front.
Under the price indication regulations (Preisbekanntgabeverordnung), it is prohibited to demand tips over the indicated price, unless the tips are clearly indicated with in figures (e.g. it is allowed to say "15% service charges not included", but not "service charges/tips not included").
Requiring unspecified tips is considered false price indication and may be denounced to the commerce police.
This seems to me the relevant law. The more effective way than denouncing to authorities may be a competitor or a consumer protection association. Both can sue the restaurant to stop this practice. And they may have more incentive to do this than the authorities.– K-HBNov 10, 2022 at 9:48
You may be right that it is illegal for the restaurant to advertise 'we will not serve you if you don't tip', but as I explained in my answer, I am pretty sure that it is not illegal to actually do so.– jarnbjoNov 10, 2022 at 20:35
@jarnbjo Refusing a specific customer individually for not giving good tips in the past is probably not illegal (or essentially impossible to prove the basis) and falls under freedom of contract. But systematically refusing orders without tips is probably illegal. Imagine a low-cost airline systematically not accepting bookings without baggage addons or other premium products or some processing fee (while advertising a low fare). Of course, proving such pattern of behaviour for a small restaurant is probably quite difficult, although I wouldn't say impossible.– xngtngNov 10, 2022 at 22:23
@jarnbjo OTOH, if the restaurant does not advertise the policy, there will probably be some customers who would perceive their orders getting rejected for "no reason" and will not order there in the future (even if they may be willing to tip had they known such a policy). So prohibiting such advertisement alone probably achieve the public policy goal to certain extent.– xngtngNov 10, 2022 at 22:26
Is this even allowed or acceptable in the German economy.
No, it is not.
A Customer has no legal obligation to pay a tip.
The customer pays for a service (benefit) owed to the employer.
A tip (Trinkgeld) is not part of that service. If it was, it would be listed in the bill and subject to VAT.
Any term of contract that attempts to force the customer to pay a tip, would be null and void.
The tips belongs to the employee and are income tax free
I just noticed on their website that they will cancel all orders that do not leave a tip at the time of placing the order
Sending a report to the Gewerbeamt (commercial office), showing what is stated on the web site, would probably lead to an investigation of a violation of §107(3) GewO.
Should such an investigation also determin that the collected tips were used to pay the salary of the employees, the employer could be charged with fraud (§263 StGB - German Criminal Law).
(3) Die Zahlung eines regelmäßigen Arbeitsentgelts kann nicht für die Fälle ausgeschlossen werden, in denen der Arbeitnehmer für seine Tätigkeit von Dritten ein Trinkgeld erhält. Trinkgeld ist ein Geldbetrag, den ein Dritter ohne rechtliche Verpflichtung dem Arbeitnehmer zusätzlich zu einer dem Arbeitgeber geschuldeten Leistung zahlt.
(3) The payment of regular wages cannot be ruled out in cases in which the employee receives a tip from third parties for his work. A tip is an amount of money paid by a third party without legal obligation to the employee in addition to a benefit owed to the employer.
51 Trinkgelder, die anlässlich einer Arbeitsleistung dem Arbeitnehmer von Dritten freiwillig und ohne dass ein Rechtsanspruch auf sie besteht, zusätzlich zu dem Betrag gegeben werden, der für diese Arbeitsleistung zu zahlen ist;
51 Tips that are given to the employee by third parties voluntarily and without legal entitlement to them on the occasion of a work performance in addition to the amount that is to be paid for this work performance;
2010-12-09: Rheinland-Pfalz - 10 Sa 483/10 | Landesarbeitsgericht Rheinland-Pfalz 10. Kammer | Urteil | Außerordentliche Kündigung eines Kellners wegen Verstoßes gegen eine Trinkgeldregelung
22 Nach der Legaldefinition in § 107 Abs. 3 Satz 2 GewO ist Trinkgeld ein Geldbetrag, den ein Dritter ohne rechtliche Verpflichtung dem Arbeitnehmer zusätzlich zu einer dem Arbeitgeber geschuldeten Leistung zahlt. Nach § 3 Nr. 51 EStG in der seit 2002 geltenden Fassung (Gesetz zur Steuerfreistellung von Arbeitnehmertrinkgeldern vom 08.08.2002, BGBl I 2002, 3111) sind Trinkgelder in unbegrenzter Höhe steuerfrei, die anlässlich einer Arbeitsleistung dem Arbeitnehmer von Dritten freiwillig und ohne dass ein Rechtsanspruch auf sie besteht, zusätzlich zu dem Betrag gegeben werden, der für diese Arbeitsleistung zu zahlen ist. Erhält das Bedienungspersonal vom Gast neben dem Rechnungsbetrag freiwillig ein Trinkgeld, so steht ihm dieses unmittelbar zu (vgl. ErfK/ Preis, 11. Aufl., § 611 BGB Rn. 511). Der Beklagte ist deshalb nicht berechtigt, einseitig zu bestimmen, dass das Trinkgeld von der Geschäftsleitung zu kassieren und anschließend unter dem Personal zu verteilen ist.
Extraordinary termination of a waiter for violating a tipping rule
22 According to the legal definition in Section 107 Paragraph 3 Clause 2 GewO, a tip is an amount of money that a third party pays to the employee without any legal obligation in addition to a service owed to the employer. According to § 3 No. 51 EStG in the version applicable since 2002 (law on the tax exemption of employee tips from August 8th, 2002, Federal Law Gazette I 2002, 3111), unlimited tips are tax-free, which are given to the employee by third parties voluntarily and without a legal right to be given in addition to the amount payable for that work. If the serving staff voluntarily receives a tip from the guest in addition to the invoice amount, they are entitled to this directly (cf. ErfK/Price, 11th edition, § 611 BGB marginal number 511). The defendant is therefore not entitled to determine unilaterally that the tip is to be collected by the management and then distributed among the staff.
In cases where the employer uses the tips as the source for payments to the employee, then this is considered to be fraud (§263 StGB), not only because of the legal definition in §107(3) Clause 2 GewO, but also because of the common usage of the term Trinkgeld: the customer assumes that it is in addition to the paid salary.
7I can easily believe what they're doing might be illegal, but the law you're quoting relates to whether employers can reduce/stop paying wages to employees who receive tips. This is not the same thing as refusing to do business with customers who don't leave a tip. Nov 9, 2022 at 9:00
1@ChrisH The second sentance defines what a tip is and that it is not part of the service of the employer. A tip is soley a matter between the customer and the employee. Nov 9, 2022 at 9:03
11I've had discussions about your esoteric legal interpretations before and they're always entirely fruitless, so I'm not going to engage further. Your translation of the "Abrechnung des Arbeitsentgelts" (settlement of wages) section of law is perfectly fine, others can judge its relevance for themselves. To me it's extremely clear that this has everything to do with employer-employee relations and is not the appropriate place to look for guidance on reasons a business can legally refuse somebody service. Nov 9, 2022 at 9:14
@ChrisH Your personal opinion notwithstanding, §107(3) sentance 2 GewO is the legal definition of what tips are (and that they are not part of the service) and used/quoted in commercial, employment and tax laws and their commentaries. Nov 9, 2022 at 9:55
10Then by all means go ahead and add reference to such commentary into the answer. The question is about a business's right to refuse service to a customer who doesn't tip, and you're citing a section of law that deals with whether employers can pay reduced wages to employees who receive tips. I fully agree that what they're doing is likely illegal, I just don't believe that what you've cited is the reason. If you can provide a respectable source for the connection, that would make it a very good answer and I'd happily upvote it. Nov 9, 2022 at 10:26