DE: Is the state liable in case of a corona-related business closure?

May 13, 2022 Benn-Ibler Rechtsanwälte

The German Federal Supreme Court (Bundesgerichtshof, BGH) decided: A restaurateur is neither entitled to compensation nor to damages against the state due to a corona-related area-wide temporary business closure.

In the case at hand, a restaurateur had claimed compensation from the State of Brandenburg for loss of income suffered due to the closure of his hotel and restaurant business in the period from March 23 to April 7, 2022. Although he had received EUR 60,000 under a state Corona emergency aid programme, he nevertheless claimed that this amount was insufficient to cover his operating costs, employer contributions and insurance.

The BGH ruled out the applicability of both the compensation provision of Section 56 para 1 of the Infection Protection Act (Infektionsschutzgesetz, IfSG) and Sec. 65 IfSG. A claim for compensation under Sec. 56 of the IfSG requires a disruptive capacity under infection control law as a disruptor of infection. However, tradespeople are so-called "non-disruptors" (“Nichtstörer”) under infection control law. A claim under Sec. 65 IfSG is also excluded. According to this, compensation is only possible in the case of measures to prevent a transmissible disease. However, the Corona Containment Regulation (Corona-Eindämmungsverordnung) was issued to prevent the spread of the already existing virus.

Likewise, an analogous application of the IfSG compensation standards by way of a constitutional interpretation is excluded. The wording of the standards reveals the legislator's intention to consider compensation for disruptors under infection law as permissible only in certain exceptional cases. Claims for compensation based on general police and regulatory law or expropriatory intervention are excluded by the fact that the compensation provisions for lawful infection control measures contained in the IfSG constitute a final special legal regulation with blocking effect. The BGH also rejected compensation based on official liability and expropriation-like intervention. There were no doubts about the legality of the closures based on the Corona Containment Regulation.

In general, assistance as a result of pandemics is by no means a task of liability law. The obligation of the state to share the particular burden that has arisen in the economic sectors results from the principle of the welfare state and he associated task of the state in the public interest. The Corona aid programmes created are an expression of this task.

BGH, III ZR 79/21 (17.03.2022)