What compensation options are there?
In state compensation law, a distinction must be made between lawful and unlawful actions by the state.
It is obvious that the state must pay for damages that are based on negligently or intentionally unlawful administrative action. In addition, there is also the possibility of a claim for compensation in the case of fundamentally lawful administrative action. In this case, we speak of a so-called "special sacrifice" by the citizen. This is based on the legal idea that the interference with property or other legal interests affects the person affected unequally or particularly in comparison to others and forces them to make a sacrifice to the general public.
Unlawful measures - public authority liability
In the event of negligently or intentionally unlawful administrative action, the private individual is generally entitled to an official liability claim against the state in accordance with Section 839 para. 1 BGB in conjunction with Art. 34 GG. This applies, for example, if the authority has incorrectly exercised the discretion to which it is entitled. In the case of an event being canceled due to the COVID-19 pandemic, this means that the authority must have exercised the discretion granted to it in Section 28 para. 1 sentence 2 IfSG to ban a major event without error in order to avoid a possible claim. In this case, a claim for expropriation-like interference may also be considered, which does not require fault.
Compensation obligation for lawful measures
In addition to the official liability claim and the claim for expropriatory interference, there are also compensation regulations with regard to lawful measures taken by the authorities.
If the authorities prohibit major events in order to prevent the possibility of COVID-19 spreading, the provision of Section 65 IfSG can be considered as a possible compensation regulation.
With regard to the compensation regulation of Section 65 IfSG, the fourth variant in particular should be examined in more detail. According to this, compensation in money is to be paid if another not merely insignificant financial disadvantage is caused. In principle, this can also include the costs incurred due to an event being canceled.
However, the provision of Section 65 para. 1 sentence 1 alt. 4 IfSG only provides for compensation for such measures in accordance with Sections 16 and 17 IfSG. In the case of the event ban, however, not only Section 16 IfSG but also the provision of Section 28 IfSG can be considered as a possible basis for authorization.
While Section 16 IfSG only concerns general measures to prevent the spread of infectious diseases, Section 28 IfSG regulates specific protective measures. Among other things, Section 28 IfSG provides for the cancellation of events as such a protective measure.
The wording of Section 65 IfSG does not yet include such measures.
Analogous application of Section 65 IfSG to Section 28 IfSG?
An analogous application of Section 65 IfSG to measures under Section 28 IfSG is likely to fail due to the requirements for an analogy. It is not apparent that there is an unintended regulatory gap. The legislator deliberately intended to grant compensation only for such measures in accordance with Sections 16 and 17 IfSG. Consequently, the legislator did not intend to include Section 28 IfSG in the provisions of Section 65 IfSG. For this reason, circumventing the legislative intention by assuming an analogy is prohibited. This would also not do justice to the protective purpose of the IfSG, which primarily consists of protecting the general public from the spread of infectious diseases. On the other hand, the focus is not on making compensation payments to those affected, which should be limited to individual measures.
Claim under Section 56 IfSG?
A claim under Section 56 IfSG can only be considered in individual cases. This provision stipulates, among other things:
"(1) Anyone who, on the basis of this Act, as an excreter, suspected infectious person, suspected disease carrier or other carrier of pathogens within the meaning of § 31 S. 2 is subject to prohibitions in the exercise of his previous gainful employment and suffers a loss of earnings as a result, shall receive monetary compensation. [...]"
In order to receive compensation under Section 56 IfSG, the persons concerned must be excretors, suspected carriers, suspected carriers or other carriers of pathogens. According to Section 2 No. 5 IfSG, a suspected carrier in this sense is a person who has symptoms that suggest the presence of a specific communicable disease.According to Section 2 No. 6 IfSG, an excretor is 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. According to Section 2 No. 7 IfSG, a suspected infectious person is a person who is assumed to have ingested pathogens without being ill, suspected of being ill or an excretor.
According to its wording, the provision of Section 56 IfSG only grants personal compensation for loss of earnings. It is therefore questionable whether compensation under Section 56 IfSG must be paid at all if the person concerned is neither an excreter, suspected infectious agent, suspected infectious agent or other carrier of pathogens.
The details of Section 56 IfSG are expected to be clarified by the courts in the coming months.
Compensation obligation in the event of expropriatory intervention
In the case of lawful administrative action, a claim for compensation can be considered in accordance with the principles of expropriatory interference, which is derived from §§ 74, 75 EALR and common law (see BGH judgment of 29.03.1984 - III ZR 11/83).
An expropriating encroachment is understood to be a measure by an authority which is in itself lawful and which, as an unintended secondary consequence, has a direct effect on a legal position protected by Article 14 of the Basic Law. These are special sacrificial situations that usually arise as atypical and unforeseen secondary consequences of lawful sovereign conduct, but not as a result of expropriation by or on the basis of the law.
In the present case, a claim arising from an expropriating intervention is likely to fail because the event bans are based on a legal basis (Section 28 IfSG) and the associated business-related interference with the organizer's established and exercised business operations is not an atypical secondary consequence of lawful sovereign conduct.
Conclusion
After all this, it depends on the individual case whether compensation can be seriously considered in the event of an official ban on major events due to the COVID-19 pandemic. An in-depth legal examination is always necessary.
Dr. Ramona Claußen and Dr. Fiete Kalscheuer