Compensation claims for business closures in the course of the Covid-19 measures

Compensation claim according to § 56 para. 1 sentence 1 IfSG

The Infection Protection Act itself has its own compensation claim in Section 56 (1) sentence 1 IfSG.

§ Section 56 Compensation "(1) Anyone who, on the basis of this Act, is or becomes subject to prohibitions in the exercise of their previous gainful employment as an excreter, suspected infectious person, suspected disease carrier or other carrier of pathogens within the meaning of Section 31 sentence 2 and suffers a loss of earnings as a result shall receive monetary compensation. The same applies to persons who have been or will be isolated as excretors or suspected infectious persons, but in the case of excretors only if they are unable to comply with other protective measures."

The terms used, such as excreters etc., are defined by the Infection Protection Act itself: Excretor according to § 2 No. 6 IfSG: A person who excretes pathogens and can therefore be a source of infection for the general public without being ill or suspected of being ill. Suspected infectious person according to § 2 No. 7 IfSG: A person who is assumed to have ingested pathogens without being ill, suspected of being ill or excreting pathogens. Suspected carrier according to § 2 No. 5 IfSG: A person who has symptoms that suggest the presence of a specific communicable disease. Other carriers of pathogens according to § 31 S. 2 IfSG: Persons who carry pathogens in or on themselves in such a way that there is a risk of further spread in individual cases. The compensation regulation in Section 56 IfSG is therefore linked to individual case-related measures against specific persons. Specifically, this means that a company or a self-employed person or freelancer who has to close their business due to a statutory order on the basis of Section 32 (1) IfSG in conjunction with Section 28 IfSG is obliged to do so. § Section 28 IfSG without an order being issued in individual cases due to suspicion of illness, etc., does not belong to the group of persons entitled to compensation according to the wording of Section 56 IfSG.

Entitlement to compensation in accordance with Section 65 (1) IfSG

The Infection Protection Act also contains a further compensation provision for official measures in Section 65 (1) IfSG.

§ Section 56 Compensation for official measures "(1) If, as a result of a measure pursuant to Sections 16 and 17, objects are destroyed, damaged or otherwise diminished in value or another not merely insignificant financial disadvantage is caused, compensation shall be paid in money; however, compensation shall not be paid to the person whose objects are contaminated with pathogens or with pests of health as suspected carriers of such pathogens or are suspected of being so. § Section 254 of the German Civil Code shall apply accordingly. "

The decisive factor in this respect is that the ordering of business closures can be seen as "another not insignificant financial disadvantage". The wording of the standard initially supports this. However, case law also differentiates further here: the scope of application of Section 65 IfSG only applies if official measures are ordered to prevent an infection; this is precisely what is regulated in Sections 16 and 17 IfSG referred to in Section 65 (1) IfSG. However, the measures now ordered on the basis of Section 32 IfSG in conjunction with Sections 28 (1) sentence 1, 31 IfSG are orders to combat an infection in accordance with Sections 24 et seq. IfSG, in particular the bans on events and gatherings expressly mentioned in Section 28 IfSG. If case law sticks to these principles, which were admittedly established in completely different contexts, it will in all likelihood not be possible to realize claims for compensation on this basis.

Compensation claims under the police laws of the federal states

The law on averting danger is traditionally referred to as police law. In addition to individual case-related measures, police law at state level also provides for action by the police authorities - e.g. cities and municipalities as local police authorities - by way of general orders or ordinances. As a statutory order under Section 32 IfSG also ultimately serves to avert a threat to public safety and order, it constitutes a "police measure", which means nothing other than a hazard prevention measure. If such a measure affects someone who has not themselves caused the danger that is to be combated, this is referred to as a measure against the so-called non-disturber.

According to § 55 of the Police Act for Baden-Württemberg (PolG) in conjunction with § 9 Para. 1 PolG, the non-disturber affected by a security measure can demand appropriate compensation for the damage suffered as a result. The content and scope of this claim for compensation must be examined in detail on a case-by-case basis: to what extent is the individual required to make a special "sacrifice" compared to the other affected parties? What damage or other losses are caused directly by the official measure and not due to other circumstances of a general economic nature, such as a general reluctance on the part of customers?

Compensation claims under state liability law The General Land Law for the Prussian States of 1794 (known as the "ALR") already provided for individual citizens to claim compensation for state measures. Sections 74 and 75 of the ALR stipulated that individuals who were affected by a coercive measure imposed by the state that required them to make a particular sacrifice could claim compensation for this. The Federal Court of Justice has also adopted these principles for state liability and grants the person affected by a so-called expropriation-like intervention compensation for the special sacrifice demanded of him in favor of the general public. It must be taken into account here that the right to continue a commercial enterprise to the previous extent after the operational measures already taken falls within the scope of protection of the fundamental right to property under Article 14 of the Basic Law. In this respect, the measures based on the respective measures adopted by the federal states to combat the COVID-19 pandemic may constitute expropriation-like interventions in the respective commercial enterprise if the continuation of the previous business is prevented by the measures. A claim for compensation also presupposes a special sacrifice on the part of the affected party: the claim must be made in a special way beyond the extent of the losses etc. that the general public has to accept. The boundary between the (still) tolerable interference and a special sacrifice (to be compensated) is not easy to draw and depends on various factors. Suitable comparison groups must be formed and the effects of the respective measures on them must be considered. Not all traders and not all facilities are affected to the same extent by the measures taken by the federal states. Accordingly, the criterion of special victim has sometimes been applied generously in previous case law, for example in the case of the owner of an apartment who must tolerate the extensive damage to the apartment caused by a police task force during the arrest of his tenant, but can demand compensation for this as a special victim.

Priority of primary legal protection

When considering compensation claims, it should also be noted that state liability is subsidiary in principle. Only if the damage cannot be prevented or at least minimized in any other way can a claim be made against the public authorities. It is therefore always important to check the extent to which there are options for action against individual measures. The legal ordinances of the federal states provide various opening clauses for this purpose, which are intended to take account of the circumstances of the individual case. If these options for action are not taken into consideration, in many cases the question of a claim for compensation no longer arises.

We will be happy to provide you with comprehensive advice on the options for action within the framework of the country-specific measures to combat the COVID-19 pandemic.