• Mehr als 3 Millionen Wörter Inhalt
  • |
  • info@itmedialaw.com
  • |
  • Tel: 03322 5078053
Rechtsanwalt Marian Härtel - ITMediaLaw

No products in the cart.

  • en English
  • de Deutsch
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Kurzberatung
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Rechtsanwalt Marian Härtel - ITMediaLaw

BGH: State not liable for Corona defaults

3. August 2023
in Other
Reading Time: 6 mins read
0 0
A A
0
bghurteil
Key Facts
  • The Federal Court of Justice ruled on whether the state is liable for the loss of income of professional musicians during the "first lockdown".
  • The plaintiff, a music producer in Bavaria, claimed compensation for event bans in the period from March to July 2020.
  • The Regional Court and the Higher Regional Court dismissed the claim for payment of € 8,326.48.
  • Event bans were not unlawful and served to protect the public during the SARS-CoV-2 pandemic.
  • The measures were proportionate and pursued legitimate purposes in accordance with constitutional principles.
  • The duration of the restrictions was only two and a half months, which was not unreasonable for the plaintiff.
  • The plaintiff's artistic freedom was taken into account, but assessed in the context of professional law.

The III Civil Senate of the German Federal Supreme Court today ruled on the question of whether the state is liable for a professional musician’s loss of income caused by temporary and graduated event bans and restrictions ordered to combat the SARS-CoV-2 virus in the period from March to July 2020 (“first lockdown”).

Content Hide
1. Facts:
2. Process history:
3. The decision of the Federal Supreme Court:
4. Lower courts:
4.1. Author: Marian Härtel

Facts:

The plaintiff, who is based in the Free State of Bavaria, operates a music and film production company and is the leader of a music group. More than 90 percent of his assignments consist of live performances. He is seeking compensation from the defendant state of Baden-Württemberg for loss of income that he incurred in the period from March to July 2020 because he and his music group were unable to perform at events due to government measures to combat the SARS-CoV-2 coronavirus and the COVID-19 disease caused by it.

The defendant state issued from March 17, 2020 on the basis of § 32 in conjunction with. § 28 para. 1 of the Infection Protection Act (IfSG) successively introduced several regulations to combat the coronavirus. The initially ordered general ban on meetings and events was subsequently relaxed. As of June 1, 2020, cultural events of any kind under 100 attendees were again permitted, subject to certain safeguards and sanitary measures. As of July 1, 2020, up to 250 attendees were allowed at events with fixed seating and a predetermined program.

Process history:

The Regional Court dismissed the action for payment of €8,326.48 plus interest. The plaintiff’s appeal was unsuccessful before the Higher Regional Court.

The decision of the Federal Supreme Court:

In the appeal proceedings, the plaintiff primarily pursued a claim for compensation under the judicial liability institute of expropriation-like intervention. The Third Civil Senate dismissed the plaintiff’s appeal.

A claim for compensation due to expropriation-like encroachment presupposes that there has been unlawful encroachment on a right protected by Art. 14 para. This is a direct interference with the legal position protected by Article 1 of the Basic Law and imposes on the beneficiary a special sacrifice for the general public that is not expected of others. These conditions are not met here. The event bans and restrictions ordered in the defendant county’s Corona ordinances were not unlawful. In particular, they are consistent with Art. 12 para. 1 and Art. 14 para. 1 GG compatible.

The event bans and restrictions did indeed interfere with the plaintiff’s business operations as property within the meaning of Article 14 of the German Basic Law, since the plaintiff was temporarily prevented or only able to a limited extent to use the existing operating resources as intended and – according to his submission, which is to be assumed under the law of review – to take advantage of performance opportunities that had already been contractually agreed.

However, the event bans and restrictions ordered were proportionate. They served a constitutionally legitimate purpose because they aimed to slow the further spread of the virus by reducing interpersonal contact and to break the exponential growth of infections in order to avoid overburdening the health care system and to ensure medical care for the population. In its daily situation reports, the Robert Koch Institute has just also described “social distancing” as an appropriate countermeasure to the spread of the virus and the overloading of the health care system.

The temporary and graduated event bans and restrictions were also necessary because equally suitable, milder means were not available. Taking into account the broad scope of assessment to which it was entitled, the defendant country was entitled to assume in mid-March 2020 that it was important to prevent social contacts as quickly and comprehensively as possible in order to effectively counter the danger of an uncontrolled spread of the SARS-CoV-2 coronavirus and the associated threats to the life and health of the population and the functioning of the healthcare system. Differentiating transitional and exemption regulations were not compatible with the primary goal of the fastest possible and most comprehensive contact restrictions. Rules of conduct for meetings and events did not constitute an equally effective means, even if fully observed. In addition, there is the risk of consciously or unconsciously incorrect application of the rules (especially at events such as weddings, company parties and concerts at which the plaintiff’s music group performs).

The event bans and restrictions ordered by the defendant state in the period from March to July 2020 were also proportionate in the strict sense. For the period under review, the public authorities found a constitutional balance between the plaintiff’s impairment of his fundamental rights and the protection of particularly important public interests pursued by the ban on events. The measures ordered, including the ban on events, were limited in time from the beginning. From the outset, the legislator had an “exit strategy” in mind and pursued a gradual opening concept. A further mitigation of the interference in Art. 14 para. 1 sentence 1 GG brought about generous state aid programs. This included the “Corona emergency aid for microenterprises and solo self-employed” approved by the federal cabinet on March 23, 2020, which was available from March 25, 2020, under which companies with up to five employees that had experienced economic difficulties threatening their existence as a result of the Corona pandemic could receive financial support of up to €9,000, and which resulted in more than 240,000 approvals in Baden-Württemberg with a total volume of more than two billion euros. In addition, the Free State of Bavaria granted financial benefits of between €5,000 and €50,000 to companies, solo self-employed persons and members of the liberal professions based there, which was also available to the plaintiff, whose company headquarters are in Bavaria.

Insofar as the ordered event bans and restrictions at the same time infringe the plaintiff’s fundamental right under Article 12 para. 1 GG has been interfered with, nothing else applies. This does not change even if one takes into account the provisions of Art. 5 para. 3 GG additionally takes into account the freedom of art. In cases involving compensation for loss of income due to event bans and restrictions under infection control law, artistic freedom is affected not in its immaterial but in its pecuniary dimension, so that Art. 12 para. 1 GG is decisive.

The legislator of the Infection Protection Act was not constitutionally obligated to provide for burdens such as those imposed on the plaintiff by the content and restriction provisions contained in the event prohibitions and restrictions within the meaning of Art. 14 Para. 1 sentence 2 of the Basic Law to regulate compensation claims. The period during which the ban on events ordered by the defendant state had the de facto effect of a ban on operations for the plaintiff was only two and a half months. Thereafter, it was again possible for him to provide the services he offered to a limited extent. Such a period was not unreasonable for the plaintiff’s business operations, taking into account the entrepreneurial risk generally borne by the business owner.

Lower courts:

Stuttgart Regional Court – Judgment of February 26, 2021 – 7 O 285/20

Stuttgart Higher Regional Court – Judgment of February 23, 2022 – 4 U 70/21

The governing regulations are:

Art. 12 GG – Freedom of occupation

(1) All Germans shall have the right freely to choose their occupation, place of work and place of training. 2The practice of the profession may be regulated by or on the basis of a law.

Art. 14 GG – Property, Right of Inheritance and Expropriation

Ownership and inheritance rights are guaranteed. 2The content and limits shall be determined by the laws.

§ 28 IfSG – Protective measures

(1) If sick persons, persons suspected of being sick, persons suspected of being infected or excretors are detected or if it emerges that a deceased person was sick, suspected of being sick or excretors, the competent authority shall take the necessary protective measures, in particular those specified in Sections 28a, 28b and 29 to 31, to the extent and for as long as necessary to prevent the spread of communicable diseases; in particular, it may oblige persons not to leave the place where they are or only to leave it under certain conditions or not to enter places or public places designated by it or only to enter them under certain conditions. Under the conditions of sentence 1, the competent authority may restrict or prohibit events or other gatherings of people and close bathing establishments or communal facilities referred to in § 33 or parts thereof.

§ Section 32 IfSG – Issuance of legal ordinances

The governments of the Länder shall be authorized, subject to the conditions governing measures under Sections 28 to 28b and 29 to 31, also to enact by ordinances corresponding requirements and prohibitions for the control of communicable diseases. 2The state governments may amend the authorization by statutory order.

Marian Härtel
Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.

Tags: BghDamagesFederal court

Weitere spannende Blogposts

DSGVO, data protection and data scraping: Case analysis LG Offenburg and Facebook

DSGVO, data protection and data scraping: Case analysis LG Offenburg and Facebook
23. May 2023

Introduction In the era of digital advancement, data scraping is a widespread practice that raises privacy concerns. But what exactly...

Read moreDetails

ECJ: Framing of content can be copyright infringement!

Lego brick still protected as a design patent
7. November 2022

The ECJ is doing a roll backwards in its legal interpretation when it comes to framing. For more on the...

Read moreDetails

Agencies: Attention, ideas not protected!

Agencies: Attention, ideas not protected!
31. May 2019

For this reason, I would like to draw attention today to a problem that repeatedly falls on the feet of...

Read moreDetails

BGH to decide on Yelp reviews in January

No more free tissues at the pharmacy?
20. November 2019

Facts The applicant claims that Yelp is injunctive relief, determination and damages for its assessment representations. As many will know,...

Read moreDetails

Online retailers: Alcohol sales online only from 18/16!

Attention: Vouchers to existing customers can be advertising!
14. March 2019

At the end of January this year, the Regional Court of Bochum ruled that the age restriction for alcoholic beverages...

Read moreDetails

Cathy Hummels, surreptitious advertising as an influencer?

#ad as hashtag for advertising not sufficient!
7. November 2022

Today, there was actually supposed to be an interesting decision at the Munich Regional Court that shed light on the...

Read moreDetails

Eiermann tables and copyright

Eiermann tables and copyright
5. December 2022

Since I know quite a few fans of Eiermann tables in the office, especially in the startup sector, I just...

Read moreDetails

Consumer’s right of withdrawal for teak trees in Costa Rica with a Swiss company

BGH considers Uber Black to be anti-competitive
17. May 2024

On the right of withdrawal of a consumer residing in Germany when concluding "purchase and service contracts" for teak trees...

Read moreDetails

Manufacturer’s information when applying for electrical appliances

Manufacturer’s information when applying for electrical appliances
14. January 2019

In a judgment of the end of last year, the Landgericht Dortmund agreed with the unanimous case law of, for...

Read moreDetails
Startup ohne Entwickler?
Gloss / Opinion

Startup ohne Entwickler?

8. July 2025

Es ist spätabends, der Kaffee neben dem Laptop ist längst kalt, doch ich lächle zufrieden: In wenigen Stunden habe ich...

Read moreDetails
Keine stillschweigende AGB-Änderung – Schweigen gilt nicht als Zustimnung

Keine stillschweigende AGB-Änderung – Schweigen gilt nicht als Zustimnung

7. July 2025
So langsam nimmt der Shop Form an

So langsam nimmt der Shop Form an

3. July 2025
Dark Patterns: UX-Tricks im Visier von Gesetzgeber und Gerichten

Dark Patterns: UX-Tricks im Visier von Gesetzgeber und Gerichten

2. July 2025
Altersverifikation im Internet: Pflichten für Anbieter in Deutschland und Europa

Altersverifikation im Internet: Pflichten für Anbieter in Deutschland und Europa

30. June 2025

Podcastfolge

KI im Recht: Chancen, Risiken und Regulierung – der IT Media Law Podcast Episode 3

KI im Recht: Chancen, Risiken und Regulierung – der IT Media Law Podcast Episode 3

28. August 2024

Willkommen zur dritten Episode unseres Podcasts "IT Media Law"! In dieser Folge tauchen wir ein in die faszinierende Welt der...

Read moreDetails
“Digitales Recht Entschlüsselt” mit Rechtsanwalt Marian Härtel

“Digitales Recht Entschlüsselt” mit Rechtsanwalt Marian Härtel

25. September 2024
Digitale Souveränität: Europas Weg in eine selbstbestimmte digitale Zukunft

Digitale Souveränität: Europas Weg in eine selbstbestimmte digitale Zukunft

12. November 2024
Rechtliche Herausforderungen im Gaming-Universum: Ein Leitfaden für Entwickler, Esportler und Gamer

Was wird 2025 für Startups juristisch bringen? Chancen? Risiken?

24. January 2025
Web3, Blockchain und Recht – Eine kritische Bestandsaufnahme

Web3, Blockchain und Recht – Eine kritische Bestandsaufnahme

25. September 2024

Video

Mein transparente Abrechnung

Mein transparente Abrechnung

10. February 2025

In diesem Video rede ich ein wenig über transparente Abrechnung und wie ich kommuniziere, was es kostet, wenn man mit...

Read moreDetails
Faszination zwischen und Recht und Technologie

Faszination zwischen und Recht und Technologie

10. February 2025
Meine zwei größten Herausforderungen sind?

Meine zwei größten Herausforderungen sind?

10. February 2025
Was mich wirklich freut

Was mich wirklich freut

10. February 2025
Was ich an meinem Job liebe!

Was ich an meinem Job liebe!

10. February 2025
  • Privacy policy
  • Imprint
  • Contact
  • About lawyer Marian Härtel
Marian Härtel, Rathenaustr. 58a, 14612 Falkensee, info@itmedialaw.com

Marian Härtel - Rechtsanwalt für IT-Recht, Medienrecht und Startups, mit einem Fokus auf innovative Geschäftsmodelle, Games, KI und Finanzierungsberatung.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
  • en English
  • de Deutsch
Kostenlose Kurzberatung