According to the Federal Court of Justice, a claim for compensation can arise directly from an expropriating and an expropriation-like intervention. The BVerfG, on the other hand, only "recognizes" expropriation (requiring compensation) and the determination of content and limits (possibly requiring compensation). The decisive factor here is that the BVerfG - even in the case of a massive encroachment on the freedom of ownership - does not recognize a direct claim for compensation or compensation. Rather, according to the BVerfG, the legislator is called upon to act in this case. It - and not a court - must decide on the requirements and scope of the compensation or compensation obligation. The three leading decisions of the BVerfG on the content and limitation provisions requiring compensation are the mandatory copy, the monument protection and the nuclear phase-out decisions:
The Pflichtexemplar decision of July 14, 1981 states in para. 74 as follows:
"Insofar as the authorization exceeds the limits of what is permissible under constitutional law, the state legislature has - as can be seen from the regulations set out at the beginning - a number of possibilities to either reorganize the mandatory copy law as a whole or to adapt it in relation to the hardship cases to the existing interests there, taking into account the property guarantee."
In this decision from 1981, the BVerfG did not award compensation, but formulated a legislative mandate.
The BVerfG then explains this in more detail in the monument protection decision of March 2, 1999. Of particular interest here is para. 99 f.:
"Compensation regulations within the scope of application of Art. 14 para. 1 sentence 2 GG must meet the following requirements:
They require a statutory basis. Determining the content and limits of property is fundamentally a matter for the legislature. It is required to observe the constitutional limits of content-determining laws and, if it issues a mandatory prohibition, may not rely on the administration or the courts to avoid violations of the guarantee of property rights, if necessary by means of compensatory measures or monetary payments. If compensatory compensation claims are to be established, this can only be done by means of a law in any case, also with regard to the budgetary right of Parliament."
In the nuclear phase-out decision of 16.12.2016, the BVerfG states the following in para. 381 f:
"However, it is not the task of these constitutional complaint proceedings to examine in detail the question of whether and to what extent appropriate compensation is constitutionally required in the investment cases cited by the complainants.
It is within the legislator's discretion to determine the requirements and scope of such a compensation claim in more detail."
It can therefore be seen that - from a legal perspective - there are two ways to assert compensation claims in court. On the one hand, there is the route via the ordinary courts, which will ultimately end at the Federal Court of Justice. It is still not impossible that this route - which would lead to a direct claim for compensation - will be crowned with success. Even though the Heilbronn Regional Court was the first court to reject the claims under consideration in its ruling of 29.04.2020, the last word has not yet been spoken. Kyrill-A. Schwarz, Professor of Public Law in Würzburg, for example, believes that the Heilbronn Regional Court's decision
"characterized both by a not inconsiderable lack of depth in terms of state liability law and by a certain autism in terms of fundamental rights"
characterized.
The other path, which - as far as can be seen - has not yet been taken with regard to "corona compensation", would be the path directly to the Federal Constitutional Court: the constitutional appeal under Art. 93 para. 1 no. 4 a GG. The disadvantage of this route is obvious: the companies affected will not be granted a direct claim for compensation even if the ruling is successful. Instead, the BVerfG would formulate a legislative mandate - as in the mandatory copy, monument protection and nuclear phase-out decisions.
It is also questionable whether the direct route via the constitutional complaint is open at all. Would the BVerfG demand that the affected companies first assert a possible claim for compensation via the ordinary legal process? This seems possible, but would be inconsistent, as the BVerfG considers a direct claim for compensation without a legal basis to be inadmissible against the background of the principle of democracy.
It is also unlikely that the Federal Court of Justice would refer Sections 28 and 56 IfSG (which are incomplete and therefore unconstitutional due to the lack of a claim for compensation) to the Federal Constitutional Court by way of a concrete review of standards pursuant to Art. 100 para. 1 GG: From the BGH's point of view, the IfSG should not be incomplete and therefore unconstitutional; rather, in the absence of a legal basis for the BGH, the question arises as to whether a direct claim for compensation arises from expropriatory or equivalent interference. Furthermore, the constitutional complaint should not fail due to the requirement of being directly affected. A complainant is also directly affected if a preferential treatment ordered by the challenged provisions still requires an executive act, but the complainant is already excluded from the preferential treatment by the challenged provisions (Hellmann, in: Barczak, BVerfGG, § 90 para. 248 with further references). If one rejects an analogous application of Section 56 IfSG to "non-interferers" due to the lack of an unintended regulatory gap, directness in the aforementioned sense can be established in the present case.
Nothing should therefore stand in the way of a direct constitutional complaint; it is not necessary to first take the route via the ordinary courts. The one-year time limit also does not prevent a constitutional complaint, as Sections 28 and 56 IfSG were recently amended by the parliamentary legislature.
Dr. Fiete Kalscheuer