The state’s responsibility towards entrepreneurs in the Czech Republic for the measures adopted in relation to the epidemic of coronavirus

Abstract

This paper briefly analyses the legislation of the state’s liability for the measures adopted in relation to the epidemic of coronavirus in the period of the state of emergency, it especially deals with the state’s liability for damage accrued upon entrepreneurs in a casual relation to the restriction of the right to engage in enterprise. The aim of the paper is to carry out a legal analysis of liability for damage according to the Crisis Act on one hand, and of liability for damage caused by the terminated measures of the state according to the Act referring to the protection of public health, on the other hand. The paper provides a practical guideline for claiming damages and draws attention to the limits of such claims.

Liability for Damage to Health Due to Limited Access to Health Care during Emergency of the Covid-19 Pandemic

“…For the purposes of this paper, it is therefore important to conclude that crisis measures are the package of all measures adopted by various competent public authorities in the context of an emergency. The form of crisis measures may be a government resolution, a law, a decree, a general measure, an administrative decision, or any actual measures adopted by public authorities [13]. The Crisis Act Section 5 provides an exhaustive list of specific measures that may be imposed by the Government.…”

“…The right to compensation shall be vested in the person who has suffered damage as a result of maladministration." [20] Since the Ministry of Health adopted emergency measures regulating the availability of health care under the Act on the Protection of Public Health, note that those are so-called general measures [13]. The Ministry of Health's measures concerning the limitations of health care were not repealed by a court decision, but only after they had been concluded as irrelevant in view of the epidemic development in June 2021.…”

“…Bílek et al [13] concludes in their analysis that "Liability of the state for damages caused by crisis measures is objective, therefore the claim arises regardless of the fault, and the prerequisite for liability is not the illegality or incorrectness of an adopted crisis measure, but vice versa its faultlessness. It is therefore not appropriate to require the annulment of a measure taken.…”

“…The author is also inclined to the conclusions of Melzer [22] and refers to his findings [13] that compensation for damages under the Crisis Management Act is based on the principle that it is compensation for damages caused by the due course of law, namely by a proper crisis measure. The prerequisite for liability is therefore not illegality, but rather a duly adopted measure of the state.…”

“…At the same time, the author points out that the term "damages" used in the Crisis Management Act could lead to the conclusion that only material damage is subject to compensation, but this has already been refuted by Bílek et al [13] and Melzer [22]. The Crisis Management Act originated at a time when the Civil Code did not differentiate between the terms of material and immaterial damages.…”