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Coronavirus & Public Law: The most important questions about official measures and compensation claims

The increasing spread of the SARS-CoV-2 virus (hereinafter: coronavirus) raises questions from a public law perspective, which measures the competent infection control authority can order, what legal limits exist for corresponding measures, whether those affected have defense options and whether claims for compensation can be asserted or state aid can be used.

The article deals with a highly topical topic because of the constantly changing crisis situation. Changes to the factual and legal situation can occur very quickly after publication. Our author gives the factual and legal situation known to him as of April 7th, 2020.

1. What measures can the infection control authority order?

The legal basis for measures taken by the competent infection protection authority are the provisions of the Infection Protection Act (IfSG). In the event of the fight against communicable diseases, Section 28 (1) IfSG is the authoritative basis. This provision has the following wording in extracts:

1 If sick people, suspects of illness, suspected contagion or excretors are identified (...), the competent authority shall take the necessary protective measures, in particular those mentioned in Sections 29 to 31, insofar as and for as long as it is necessary to prevent the spread of communicable diseases; In particular, it can oblige people not to leave the place where they are or only under certain conditions or not to enter places or public places specified by it or only under certain conditions. 2 Under the conditions of sentence 1, the competent authority can restrict or prohibit events or other gatherings of people and close bathing establishments (...). "

The authorization to intervene in Section 28 (1) sentence 1 IfSG is very broad and allows the competent authority to issue an order all necessary protective measures. These measures can be addressed not only to the sick and the other persons named in the regulation (hereinafter referred to as troublemakers in accordance with the diction of hazard prevention law), but also third parties (hereinafter: non-interferers), i.e. persons who do not pose a threat themselves (see Federal Administrative Court, judgment of March 22, 2012, Az .: 3 C 16/11, NJW 2012, 2823, 2825 marginal number 25).

The measures mentioned in Section 28 Paragraph 1 Clause 1, Second Part Clause and Clause 2 IfSG (prohibitions to leave and enter, prohibition of events or other gatherings of people) are only examples of necessary protective measures i. S. v. Section 28 (1) sentence 1 IfSG (see Bundestag printed matter 8/2468, page 27 f.). The same applies to the measures provided for in Sections 29 to 31 IfSG with regard to interferers, such as observation and isolation (e.g. quarantine in a hospital) and the ordering of professional activity bans.

Since § 28 Paragraph 1 Sentence 1 IfSG thus represents the general provision and this also enables protective measures against third parties, all measures mentioned here can also be addressed to the general publicif this appears necessary to combat the further spread of the coronavirus. According to this, not only bans on visits - which have already been implemented in the federal states - are conceivable. of bars, clubs, discos, fitness studios, sports and leisure facilities as well as the operation of non-systemically important retail stores. Rather, the arrangement of “curfews”, which has already taken place in Austria and the Free State of Bavaria, for example, comes into consideration, i.e. the general ban on leaving one's own home. The same applies to the arrangement of bans on contact or minimum distances to be observed between several people.

The need for corresponding orders can be justified by the fact that the spread of the infection process has to be slowed down in time and, in particular, has to be decoupled from the ongoing wave of influenza. In addition, the authorities aim to ensure that the medical supply systems are used over a longer period of time and are therefore not excessively burdened by a large number of people who are sick at the same time. Finally, reference is made to the protection of members of risk groups. These arguments are based on, for example, previous orders that prohibit events with more than 1,000 participants as well as the return of travelers from risk areas to certain public institutions and order curfews in the Free State of Bavaria.

It should be noted that a violation of infection control authority orders not only Enforcement Actions (e.g. setting of fines or even the application of direct coercion by the police), but also the offense of a Administrative offense or even Offense Fulfills. If the competent authority bases its measure on section 28 (1) sentence 2 IfSG, a violation is a criminal offense (section 75 (1) no.1 IfSG), otherwise, i.e. if the measure is based on section 28 (1) sentence 1 IfSG becomes, an administrative offense according to § 73 Abs. 1a Nr. 6 IfSG.

2. Who is the competent infection control authority?

As a rule, an authority at the municipal level (district, independent city) is responsible for the implementation of the Infection Protection Act, namely the locally responsible health department. The respective state government can, however, ensure a nationwide uniform procedure against the coronavirus by issuing instructions or by assuming the relevant responsibility or making use of the authorization to issue ordinances under Section 32 IfSG. The same applies after the disaster is declared. In contrast, the federal government has no enforcement powers in the area of ​​infection protection law. He can therefore neither make orders himself nor issue binding instructions to the federal states or even to the municipal health authorities. The Robert Koch Institute also has no corresponding responsibilities.

3. What are the legal limits for orders issued by the authorities to protect against infection?

The precondition for the legality of all measures ordered by the infection protection authority is their Proportionality. This means that the measure must be suitable, necessary and appropriate to achieve the desired objective. The authority must therefore in particular check whether a milder means (e.g. in the case of a ban on the operation of fitness studios, limitation of the number of people exercising at the same time, regular disinfection of all sports equipment, minimum distances between sports equipment, etc.) is available with which the Coronavirus can be fought equally well. When assessing the necessity, however, it must be taken into account that the courts regularly inform the competent authorities great discretion to approve. This is all the more true as leading medical professionals recommend appropriate measures, which also speaks in favor of their necessity. In addition, a measure i. S. v. Section 28 (1) IfSG is only lawful if the weighting of disease control outweighs the conflicting rights of the citizens concerned (proportionality in the narrower sense). To this extent, in particular, the circumstance must be taken into account whether an official measure the economic existence endangered by the person concerned. In this context, it is also important whether a threat to existence is prevented by compensatory state measures (see point 4).

The fact that measures taken by the authorities to protect against infection go hand in hand with far-reaching encroachments on fundamental rights does not conflict with their legality per se. Because § 28 Abs. 1 Satz 4 IfSG explicitly restricts various basic rights, namely the freedom of the person, the freedom of assembly and the inviolability of the home. This satisfies the constitutional requirements of the so-called quotation requirement (Article 19, Paragraph 1, Clause 2 of the Basic Law [GG]). Concerns about the specificity of the legal basis for authorization should not penetrate either. Because the exemplary list of various possible measures in Section 28 (1) Sentence 2 and Sections 29 to 31 IfSG makes it sufficiently clear which type of encroachments on fundamental rights are permissible and, above all, how serious they may be. A judicial order is only possible in the case of compulsory placement in a locked hospital or other closed facility (Section 30 (2) IfSG).

4. Are there any legal defenses?

The legal defense options depend on the legal nature of the orders issued by the authorities to protect against infection. Such orders are often administrative acts. In view of the large number of addressees, these are usually not individualized, but as so-called. General decrees enact. These are administrative acts that are aimed at a group of people who are determined or determinable according to general characteristics (see, for example, Section 35 (1) sentence 2 of the Federal Administrative Procedure Act). Such general decrees can be made public (e.g. by posting or publication on the Internet) and are not sent individually. The Citizens must therefore keep themselves informed about this on an ongoing basiswhich orders the authority responsible for him has made.

Corresponding administrative acts are to be submitted within one month - depending on the state law structure - Opposition and / or action for annulment permissible. Details can be found in the information on legal remedies, which must be attached to every administrative act. However, the above remedies do not have suspensive effect at least if the measure is based on the general clause of Section 28 (1) IfSG (Sections 28 (3), 16 (6) IfSG). This means that the respective order must continue to be observed even in the event of legal action. This can only be changed through successful urgent administrative court proceedings.

Some federal states also have in the meantime Ordinances to combat the corona pandemic. The legal basis for this is Section 32 IfSG, which enables the federal states to issue corresponding bids and prohibitions by means of statutory ordinances, subject to the requirements of Sections 28 to 31 IfSG. If the respective state law provides for this, corresponding Ordinances within the framework of a norm control procedure according to § 47 of the administrative court code be challenged before the competent higher administrative court. A period of one year applies to the initiation of such a procedure. If state law does not allow the administrative judicial review of norms, the collection of a Action for declaratory judgment according to Section 43 of the Administrative Court Code come into consideration before the competent administrative court.

5. Are there any claims for compensation?

The Infection Protection Act itself only contains very rudimentary compensation regulations in the form of Sections 56 ff. Section 56 (1) sentences 1 and 2 IfSG justifies claims for compensation in favor of interferers, but not with regard to outside third parties who do not pose any health risks themselves. The norm is therefore primarily relevant for people who are carriers of pathogens. These must Claims for compensation within three months (for details, section 56 (11) sentence 1 IfSG). The provision could be applicable to other - including legal - persons if they are to be classified as so-called disruptors from whom a danger emanates, or if Section 56 IfSG would apply analogously to non-disruptors and also to legal persons. Due to the incomplete nature of the compensation provisions of the Infection Protection Act, both of these do not appear to be excluded. In addition, Section 65 (1) Sentence 1 IfSG contains a compensation regulation, which, however, relates solely to orders according to Sections 16, 17 IfSG. These provisions enable measures to be taken to prevent communicable diseases, but not - as in Section 28 IfSG - to combat them. A claim for compensation can therefore only be based on Section 65 Paragraph 1 Clause 1 IfSG if the competent authority in turn invokes Section 16 or Section 17 IfSG as a basis for authorization or if Section 65 IfSG is to be interpreted in an expanded manner.

Since the infection protection law is qualified as a special law to avert danger, the general police and regulatory requirements can be used (see Engels, DÖV 2014, 464, 465 with further details). In particular, the compensation regulations of the Infection Protection Act are not legally final (see Bundestag printed matter 3/1888, page 27). The then applicable regulations of the various federal states (in Hamburg about § 10 para. 3 of the law for the protection of public safety and order [SOG HH]) contain compensation regulations in favor of non-disruptors. If a non-disruptor is used to ward off a danger, he is to be paid adequate compensation in cash on request (cf. for Hamburg § 10 Paragraph 3 Clause 1 SOG HH). The entitlement does not exist if the person can be expected to bear the disadvantage himself (Section 10 (3) sentence 2 SOG HH). There is much to suggest that the regulations in question are applicable insofar as non-interferers are the addressees of orders from the authorities to protect against infection. This should at least apply in the case of an economic threat to the existence of the person concerned, even if the usually assumed special sacrifice of the person concerned is missing.

In general, neither the claims for compensation under the Infection Protection Act nor those under general police and regulatory law are a matter of principle Contestation of the incriminating measure presuppose. The person concerned can therefore in principle demand a claim for compensation regardless of whether he has defended himself against the incriminating measure by means of an objection, action for rescission or legal control action. In view of the so-called priority of primary legal protection, something else could apply if the prohibition order should prove to be unlawful. In this case, courts could take the position that compensation can only be claimed by those who opposed the prohibition that affected them. For this reason, the respective prohibition order should also be challenged as a precaution if claims for compensation are to be asserted.

The assertion of a claim for damages based on the violation of official duties will not be considered (§ 839 BGB in conjunction with Art. 34 GG). A prerequisite for such a claim is culpability, i.e. intentional or negligent incorrect behavior on the part of the competent authority, which cannot be proven given the current risk situation.

Irrespective of the claims discussed above, various unwritten claims for compensation are recognized in the case law. These include claims for compensation due to an expropriation or an encroachment equivalent to expropriation as well as the so-called general right to sacrifice. The first-mentioned claims serve to protect property protected by the constitution. The claim for expropriating interference presupposes damage to property through atypical, unforeseeable side effects of lawful sovereign action, which would not be given here. In addition, a special sacrifice is required in both cases, i.e. a special burden that does not apply to the majority of those subject to the standard. Such a special sacrifice also presupposes the general claim to sacrifice. A special sacrifice is unlikely to be fulfilled in the case of equal claims made by different victims.

Coronavirus: the legal situation

You can find further articles on the legal situation relating to Corona in our Coronavirus dossier

Prof. Dr. Christian Winterhoff

  • Lawyer in the partnership GvW Graf von Westphalen, exclusive activity in the field of public law
  • Extraordinary professor at the Georg-August-Universität Göttingen: Lectures on various parts of public law
  • Co-editor of juris - the monthly magazine

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