What is adequate compensation

Compensation for business closures

Is there any compensation for company closures?

"Catering establishments of any kind are prohibited." (Section 4 (2) of the 3rd BayIfSMV of May 1, 2020) - just one example of the numerous company closings as part of the “Corona Lockdown”.

This put many companies in serious jeopardy. This begs the question: Are the entrepreneurs then not entitled to appropriate compensation?

Were the company closings legal?

Were the prohibition measures legal or not? This question will continue to occupy the courts in the second half of the year.

So far, the court decisions have been limited to references to virological prognoses. Politicians had already holed up behind them in their decision-making. The Bavarian Administrative Court saw the 800 square meter rule for retail as a violation of constitutional law (more precisely: against Art. 3 GG, ruling of April 27, 2020 - 20 NE 20.793). However, he did not set the provision apart from enforcement.

The key point

Now, despite good arguments in favor of illegality, it is clear that politics must rule out any danger to the life and limb of the citizens as far as possible. So it's not so much a question of whether the protective measures were illegal or not.

Rather, what matters is that even if the business closings were legal, the companies affected by the business closings are entitled to compensation for the lost income. Economically speaking, they were the main victims of the lockdown.

Compensation claim - as a requirement of justice and the legal situation

The authorities see no basis for compensation in the Infection Protection Act (IfSG). The Thuringian Aufbaubank thinks:

"Important NOTE:
Other types of compensation - for example in the event of a loss of sales or the loss of orders - are not subject to compensation according to Section 56 (1) Infection Protection Act and can therefore not be regulated by the Thuringian State Administration Office!

The company closings ordered by the federal government, the state of Thuringia or municipalities (cities and municipalities) on the basis of decrees or general decrees are generally not quarantines or bans on activity i. S. d. Infection Protection Act and are generally not covered by the scope of Section 56 (1) Infection Protection Act. "

We, on the other hand, find that everyone who has been demanded by the state to make a special sacrifice for the general public is entitled to compensation. This is not just a requirement of justice. It also corresponds to the current legal situation.

The general right to sacrifice arises from the Basic Law

The general claim to sacrifice is recognized under customary law and follows directly from Article 14 of the Basic Law. If the administration prohibits the operation of a business, this interference in an established and exercised business enterprise must be compensated.

If the legislature has not yet sufficiently considered a constitutionally required compensation, then the norms of the IfSG cannot be conclusive.

The idea of ​​sacrifice is not just law. He is also fair in the best sense of the word. The public authorities only require certain companies to close their businesses. That may have been sensible and right to contain the virus. But so retailers, restaurateurs and hoteliers showed the community a solidarity service that they paid with billions in lost sales. It is only sensible and right not to let them sit on this damage.

This would pave the way for a claim for compensation

The compensation relates to the "Loss of earnings" of § 56 IfSG. Expectations of profits fall under Article 14 of the Basic Law if they are sufficiently specified. Evidence would be the last three BWA, totals and balance lists, etc.

Does that all sound complicated? Contact us! Together we will clear the way to clarify your compensation claims.