There have been a flurry of regulations and measures imposed by governments worldwide to mitigate the adverse effects of the COVID-19 Pandemic. Some governments have introduced soft (relatively relaxed) measures and some have adopted strict rules to fight the Pandemic.
The potential liability of governments in the light of such measures and regulations may be discussed within two aspects: Firstly, state liability may be assessed with regard to negligence and omissions for addressing the threat of the COVID-19 Pandemic in a timely manner or with regard to a state’s failure to protect health and human beings. Secondly, the liability of governments can also be considered regarding damages caused by the measures to fight the COVID–19 Pandemic while requesting the closure of cafes and restaurants, ordering lockdowns of businesses and schools. This article discuss the second aspect of this issue.
In response to the COVID–19 pandemic, the Polish government implemented many legal regulations that seriously limited constitutional rights. However, the Polish government did not introduce a constitutional state of emergency, which is associated with specific regulations regarding the State’s liability for damages suffered by third parties. Instead, the government introduced an epidemic status on the basis of the Act on preventing and combating infections and infectious diseases in humans of December 5, 2008 (Journal of Laws No. 234, item 1570 as amended), effective from 20/03/2020. On the basis of the Act, many restrictions on constitutional rights were introduced by means of government ordinances. Therefore, the government’s liability for damages inflicted upon third parties in connection with the restriction of constitutional rights is based on the general principles set out within the Polish Civil Code.
The applicable law provides for the responsibility of public authorities for so-called legal damages, and therefore for the lawful actions of state or local government authorities that caused property damage. This liability is exceptional and requires each time to identify the specific legal basis of the claim, which guarantees compensation for the damage in a specific case. Due to the prevailing pandemic, the primary source of damage should be seen as imposing numerous restrictions. This group of restrictions includes, in particular, all bans and restrictions on running a business (restrictions on working in shopping malls, closing gastronomic or hairdresser’s premises, etc.), referring doctors to work in a contagious hospital or introducing obligatory expenses for persons and companies conducting business services (purchase of safety measures).
Generally, according to Article No. 361 § 2 of the Polish Civil Code, the obligation to repair damage covers two forms of damage: real damage (damnum emergens) and lost benefits (lucrum cessans) unless the law or contractual provision provides otherwise. Real damage (damnum emergens) referrs to a loss of property and should be understood as a decrease in assets or an increase in liabilities, while lost benefits (lucrum cessans) are hypothetical benefits that a legal entity expected and failed to achieve due to the fact someone did not fulfill his obligation and thereby caused damage preventing the legal entity from obtaining these benefits. For example, lost benefits may be lost profits by entities whose activities have been banned under the regulations introduced by the government, while real damage may be expenses incurred to provide protection measures as directed by the government (such as purchase of additional protective measures due to an obligation resulting from a legal provision.)
However, even if it is possible to determine the source of the damage, the damage itself and its amount, it is currently difficult to clearly indicate the actual legal basis of the State’s liability for damages arising during a pandemic. Currently, the State’s responsibility for the damage caused by limitations of constitutional rights and freedoms connected with the regulations introduced in the aftermath of the epidemic can be based mostly on the general provisions of the Civil Code, i.e. Articles 417-4172 of the Polish Civil Code.
Article No. 417 § 1 and 2 of the Polish Civil code indicate the responsibility of the State or local government unit or other legal person exercising public authority under the law for all unlawful acts or omissions connected with exercising public authority. This basis of liability may relate to the issuance by the public authorities of orders that do not constitute a normative act.
The provision mentioned above does not apply to damage related to issuing a normative act (which also includes ordinances issued by the government) which, pursuant to Article No. 4171 § 1 of the Polish Civil Code, can be claimed after establishing in the appropriate proceedings that this particular normative act does not comply with the Polish Constitution, a ratified international agreement or an Act (Polish: “ustawa” – a general normative act issued by the Parliament). Considering the above, unless the Polish Constitutional Court decides that a particular normative Act has been issued in violation of the law, it is unfounded to claim damages, although many representatives of the doctrine and some judgments are of opinion that common courts may consider a specific normative act issued in violation of the law unconstitutional under the so-called 'distributed constitutional review’. It should be noted that pursuant to the Supreme Court’s judgment of 28 November 2008, V CSK 271/08, judgments of the European Court of Human Rights also have a prejudicial meaning. If a certain act or omission of the government had already been judged as contrary to the European Charter on Human Rights by the European Court of Human Rights, it is not necessary to wait for the Polish Constitutional Tribunal’s judgement. Nevertheless, there are many indications that some regulations restricting the conduct of specific types of business activities (e.g. hotel, hairdressing or cosmetics) are unconstitutional and could be considered unconstitutional by the Polish Constitutional Court. First of all numerous restrictions on constitutional rights and freedoms were introduced by means of ordinary government ordinances,, which is contrary to Article 31 section 3 of the Polish Constitution, which states that limiting constitutional rights is possible only in an Act (issued by the parliament). The government would be entitled to limiting constitutional rights via ordinary ordinances if an emergency state would be imposed, which never happened. Moreover, some limitations of constitutional rights implemented by ordinances were introduced in excess of the authorization given by Acts issued in accordance with the Covid-19 pandemic.
Another basis of the State’s reliability is stated in Article No. 4172 of the Polish Civil Code, which also allows a claim for personal injuries even for the lawful operation of a public authority, if it is justified by considerations of equity. The provision is appliable, when the State cannot be charged with unlawful conduct while exercising public authority and it would be wrong for the effects of the damage to be borne solely by the injured party. However the provision concerns only personal injuries and it needs to me emphasized that according to the Polish jurisprudence the provision should be applied exceptionally.
In conclusion, it seems that the Polish law system may justify actions for damages involving damage related to the government’s limitations of constitutional rights implemented by Covi –19 regulations although a constitutional state of emergency was not introduced. However, it needs to be emphasized that before filing a lawsuit it is necessary to analyze every case thoroughly in the context of the jurisprudence of Polish courts and the judgments of the European Court of Human Rights.
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