Year:    2021

Author:    Cornils, Matthias

Die Verwaltung, Vol. 54 (2021), Iss. 4 : pp. 477–513

Abstract

Financial solidarity for the economy, which has been severely affected by the pandemic, is appropriate and is constitutionally required in essence, but it is not a task of state liability. The necessary aid for hundreds of thousands of businesses far exceeds the functional limits and legitimacy of the general legal institutions of liability for lawful state action (“Aufopferungshaftung”). They are also not a subject of statutory protection against infection (“Infektionsschutzgesetz”). The state, which may be constitutionally obligated to take far-reaching and drastic protective measures in the event of an epidemic, must not be prevented from fulfilling this obligation by the burden of of legally determined financial compensation on a big scale. And the legislator of infection protection law cannot responsibly make such a regulation aimed at compensating ex ante incalculable economic losses. The thesis that is sometimes put forward of a right to compensation for the Corona losses of affected companies based in the fundamental rights also proves to be problematic. Shutdown measures against certain industries or types of trade that can plausibly justified by legitimate reasons – particular risk of infection, lesser need for the vital functions of society and the economy – do not violate the principle of equality. They are therefore not special sacrifices in the sense of compensation law. Furthermore the principle of proportionality is sufficiently elastic to justify pandemic-related restrictions without financial compensation. Fundamental rights do not really provide a more precise and stringent standard for the task incumbent on society of distributing the unequal Corona burdens than does the welfare state principle. The Corona pandemic and its economic consequences should therefore not be taken as an incentive to commercialize fundamental rights on a scale previously not thought possible for good reasons. Instead, in the face of the concrete situation of a pandemic, politically negotiated and parliamentarily accountable ad hoc aid programs of the legislature or the empowered governments are far better suited to meet the enormous challenge.