Is your business shot down due to government anti-epidemic measures? The first promising answers to the question of damage are provided by the anti-epidemic law.
The so-called anti-epidemic law (available here) was announced in a collection of laws. Its primary objective is to establish anti-epidemic powers for a number of state and local authorities, without the need to declare a state of emergency to use them. However, the law also addresses the much-anticipated issue of damage, which we will briefly summarize for you.
According to the law, the state is obliged to compensate for so-called real damage. These are mainly costs incurred in vain, ie costs which the company could not objectively avoid, but which, due to the limitation of its operations, did not lead to the achievement of any income. In practice, according to the anti-epidemic law, companies could, for example, claim compensation for employees' wages paid, rent for their premises or energy payments. However, the actual damage does not include lost profits, ie profits that the company would probably have made if its operations had not been restricted. We must point out that the amount of compensation is reduced by the amount of subsidies, non-repayable financial assistance or other support received by the company in connection with the pandemic (e.g. compensation packages). The costs of acquiring protective, washing or disinfecting agents are also not considered damage. However, the question remains whether the cost of testing employees can be considered as damage.
The claim has to be made to the Ministry of Finance within 12 months from the moment the company became aware of the damage, otherwise the claim expires. The application must contain an indication of the amount of the damage, a detailed description of how it occurred and which specific measure caused the damage, and, above all, the damage must be substantiated by reliable evidence. In addition, proof of the aid received must also be provided so that the Ministry can assess the amount of the claim.
If the applicant's legitimate and duly substantiated claim is not satisfied within six months of the application, the applicant may go to court. If successful, the state will be obliged to reimburse the costs of legal proceedings. If the state grants the request only in part, only the remaining part can be enforced in court. We expect that the state will defend itself by all means, and that its most common defense will be that the damage has not been sufficiently proven, that insufficient steps have been taken to prevent or mitigate the damage, or that the claimant has not exhausted all available compensation.
We must emphasize that under the anti-epidemic law, only damage caused by these specific measures is compensated. According to this law, it is not possible to claim compensation for damage caused in previous waves of the pandemic, nor on the basis of existing measures issued on the basis of a state of emergency declared by the government (however, we will see how the Constitutional Court assesses the current state of emergency). For damage caused by the government's existing crisis measures, the regime of the Crisis Act and the general liability of the state for damage apply.
If you want to assess what damage you are suffering and whether you are entitled to compensation, please contact us.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
