15 May 2020
First court decisions have been made on compensation payments for Corona-related plant closures. One verdict gives hope to those affected.
While the first summary court proceedings initially dealt with the question of the legality of measures taken as a result of the COVID-19 pandemic, the question of compensation is now increasingly coming into the judicial focus.
A first disagreeable rush decision on compensation claims was made by the Heilbronn Regional Court (decision of 29 April 2020, I 4 O 82/20). The court comes to the sobering conclusion that the claimant, a hairdressing salon operator, would not be entitled to compensation. Therefore, she could not claim the advance payment requested in summary proceedings.
She had "fortunately" not had to close the hairdressing salon as a dropout, suspect of infection, suspect of illness or other carrier of diseases within the meaning of the Protection Against Infection Act (IfSG). Therefore § 56 of the IfSG would not apply. Since the IfSG is a special statutory and conclusive regulation of the law of averting danger, one may not fall back on general bases for claims under the law of averting danger. An analogous application of the IfSG was also not absolutely necessary in view of the emergency relief measures. And because it was not an encroachment on the guarantee of property (Article 14 of the Constitution), the common-law basis of the claim of the expropriating/equitable encroachment could not help either.
The Heilbronn Regional Court did not go substantially beyond these findings in substantiating the claim. Moreover, the case to be judged must be described as insufficient to set a precedent. The hairdressing salon operator demanded payment by way of interim legal protection. Experience shows that the courts are extremely reluctant to grant such claims. In addition, she was unable to present the threat to her livelihood demanded in the interim injunction because she had made use of immediate federal aid. However, precisely because numerous cases involve the existence of a business, one can expect the courts to deal with compensation issues in greater detail in future proceedings, and also expect quite different results.
Also for legal reasons, the courts will have to deal with the question of compensation claims in more detail in the future. For it is not only in legal advice that views other than those of the Heilbronn District Court are held. The Lüneburg Higher Administrative Court (OVG Lüneburg) has stated following in a decision (decision of 23.04. 2020, 13 MN 96/20) with an obiter dictum - without any compelling significance of this question for the specific case: "Also, the applicant, provided that she is not entitled to compensation under § 56 IfSG, and provided that she is not the beneficiary of one of the packages of measures of the Federal Government and the Land of Lower Saxony, should be able to claim a claim for compensation under general principles of police and regulatory law as a non-disturbing party (cf. § 80 et seq. NPOG).” The OVG Lüneburg therefore does not see a fundamental blocking effect of the Infection Protection Act in relation to the general risk defence law.
In this case a zoo had filed a complaint against an ordinance which prohibited it from operating. The court upheld the prohibition, but in this context it referred to the fact that the zoo was entitled to compensation. The OVG Lüneburg is not the competent court for compensation disputes in Lower Saxony. However, such a statement by the OVG Lüneburg carries a lot of weight due to its competence as a court of second instance.
Therefore, the following still applies: Claims for compensation cannot and will not exist in every case. However, especially in the case of operating prohibitions that lead to major damage without compensation, it should be worthwhile to assert claims for compensation.