According to the judges, there is no compensation for those affected by the first lockdown.
(Photo: dpa)
Berlin Groundbreaking judgment of the Federal Court of Justice (BGH) on corona lockdowns: Those affected by the lockdowns are not entitled to state compensation or damages for their loss of income. On Thursday, the judges in Karlsruhe dismissed the lawsuit brought by a restaurateur and hotelier against the state of Brandenburg in a pilot case (Az. III ZR 79/21).
Aid for economic sectors badly hit by the pandemic is not a task of state liability, said the presiding judge Ulrich Herrmann at the verdict. From the principle of the welfare state, there is only an obligation to make domestic adjustments. The details are left to the legislature. During the pandemic, the state complied with this obligation by launching aid programs – the “corona aid”.
The procedure is thus legally concluded. The only option would be to lodge a complaint with the Federal Constitutional Court.
The pilot procedure from Brandenburg is of very fundamental importance. Many similar cases are pending in the courts nationwide. And as a rule, the regional and higher regional courts orientate themselves on the BGH judgments.
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In the specific case, a family of hoteliers from Brandenburg had sued. Like many others, you were affected when the federal and state governments took drastic measures to shut down public life in the first wave of the pandemic in March 2020 to prevent the spread of the new corona virus. The catering trade also had to close for weeks, food and drinks could only be sold to take away. Hotels were no longer allowed to accept tourists.
This also affected Schloss Diedersdorf, a family-run business with a hotel, several restaurants and a large beer garden south of Berlin. Owner Thomas Worm and his daughter Salina estimate their losses at 5438 euros a day – due to lost profits and running costs. The family received 60,000 euros in emergency aid. But this sum covers just eleven days, as her lawyer calculated in the BGH hearing of the case on March 3rd.
The Worms wanted the state of Brandenburg to pay them compensation. The process was initially about a claim of around 27,000 euros. The exact amount of damage should have been determined later if the family had been right.
The Infection Protection Act provides for financial compensation in certain cases – but only for someone who has lost earnings “as an excretor, suspect of infection, suspect of illness or as other carrier of pathogens”.
The Worms, who according to their own statements have not had a corona case in their company, find this unfair. “We acted in accordance with the law and invested a lot of money in hygiene measures,” says Salina Worm. The 21-year-old recently became managing director. “We were shut down anyway, and there’s no compensation.”
The lawsuit was unsuccessful at the Potsdam district court and at the higher regional court (OLG) Brandenburg. On June 1, 2021, the Higher Regional Court ruled that the corona pandemic was “a major damage event that hit and is affecting the whole of society and large parts of the economy.” The “socially acceptable distribution of the unequal burdens caused by the pandemic” is therefore “primarily a challenge for the welfare state “. There is no claim for state liability.
In an interview with the Handelsblatt, the former President of the Federal Constitutional Court, Hans-Jürgen Papier, explained that the closures represented “very serious infringements of fundamental rights”. A special sacrifice was demanded of those affected for the public good. It corresponds to his concept of justice “that the legislature regulates certain compensation and compensation claims that cushion this special sacrifice to an appropriate degree.”
The state financial aid is “voluntary services at the discretion of the state and according to the existing budgetary situation,” the paper clarified. Legal claims that can be enforced in a court of law have not been created.
The Federal Court of Justice saw things differently.
More: Home office, mask requirement, 3G: Which measures apply after March 20th – and which do not