OGH: No Official Liability for Unlawful COVID Regulations

Sept 1, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that there is no official liability for unlawful COVID 19 regulations. The Minister of Health did not act in a culpable manner.

The plaintiff was a street paper vendor. During the first lockdown in 2020, an administrative fine was imposed on him for having entered a railway station, i.e. a public place, in breach of the Austrian COVID-19 Measures Ordinance (BGBl II 2020/98) in force at the time. In July 2000, the Austrian Constitutional Court (Verfassungsgerichtshof, hereinafter VfGH) ruled that this ordinance was illegal. According to the VfGH, Section 2 of the Austrian COVID-19 Measures Act authorised the Minister of Health to prohibit access to specifiable places. However, he prohibited entry to all public places (with very few exceptions).

The plaintiff is now claiming damages for loss of earnings for the period April to July 2020, inter alia, on the basis of official liability, since he did not exercise his activity as a street vendor for fear of fines. The associated financial risk would have been unreasonable, he argued.

The lower courts dismissed the case. The OGH confirmed these decisions, as follows:

Although the Minister of Health had issued an unlawful regulation, the way of handling it was justifiable in terms of public liability law. This was mainly due to the time pressure under which the decree had to be issued. The ordinance in question was issued on the same day as the promulgation of the COVID 19 Act and entered into force the following day. The wording of the law was also ambiguous. Section 2(1) of the COVID 19 Measures Act empowered the Minister of Health to prohibit ‘entry into specifiable places’. The term ‘specifiable’ can reasonably be understood to mean only ‘determinable’ and not ‘individual’ or ‘specific’.

OGH 1 Ob 88/23g (27 June 2023)