In its ruling of 17 February 2022 (III ZR 79/21), the Federal Supreme Court (BGH) decided that in the case of business closure-related losses, traders are not entitled to compensation from the state. In the underlying facts, a restaurateur hoped to receive compensation for the loss of income caused by Covid-19-related closures under the compensation provisions §§ 56 or 65 of the Infection Protection Act (IfSG).
According to § 65 para. 1 IfSG only those who are themselves infected or suspected of being infected are compensated. The plaintiff did not belong to this group, so that his loss of earnings is not covered by the provision. § 65 para. 1 IfSG only provides for a claim in the case of measures to prevent contagious diseases. In the opinion of the Federal Supreme Court, restaurant closures are merely a matter of combating a disease that has already broken out, so that the requirements for a claim are not met.
In the absence of an unplanned regulatory gap due to the exhaustive enumeration, an analogy of § 65 IfSG is not possible. The purpose of the standards was to grant compensation only selectively. Furthermore, the IfSG as a lex specialis has a blocking effect, so that in practice there are no claims by tradespeople against the state.
Contrary to the court's interpretation, it can be objected that Covid-19 has not yet broken out in the restaurant owner's business. It is therefore not a matter of control, but merely of preventing the outbreak in the establishment, so that this interpretation results in a claim entitlement under § 65 I IfSG.