Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
- Industrial relations / Labor law
- Sanctions and remedies
Outcome of the decision
The claim concerned a prohibition on conducting business because of a Land (Regional) Ordinance, whose scope was to prevent the spread of Covid-19. The prohibition was included in the Corona Regional Ordinance - CoronaRegioVO of 30 June 2020 (GV. NRW. p. 464a). A claimant’s employee was found to be positive with Covid-19 and was ordered by the authority to remain in quarantine from May 5 to the 23, 2020. In the period until May 21, 2020, 78 employees out of 105 had tested positive for Covid-19. The claimant (employer) continued to pay the employee, according to the federal infection protection law. As a consequence the claimant sought compensation of the wages and social security paid to its employees and submitted a request to the competent authority which rejected its application. The claimant then submitted a claim to the competent administrative Court seeking compensation and the Court upheld the claim.
Facts of the case
The claimant operated a meat factory. In May 2020, an employee was infected with Covid-19, so the local District ordered the closure of the business from May 9, 2020 until May 17, 2020. In May 2020, the claimant submitted a claim to the Administrative Court and at the same time sought a temporary injunction concerning the closure order (Administrative Court of Münster 5 L400/20). The claim was rejected because the authority's order was lawful (Administrative Court of Münster 5 K938/20). On May 22, 2020, business operations were resumed on a limited basis under the supervision of the public health authority. In June 2020, the claimant processed the gross/net remuneration for May 2020 and took into account quarantine/compensation for the period from May 5 to the 23, 2020. The account statement showed the item "fictitious wage IfSG" and an amount of € 1,155.91 to be paid according to the Infection federal protection law: it also estimated social security contributions at € 576.34. In August 2020, the claimant filed an application to the competent authority for reimbursement of employer expenses because of an employee's loss of earnings due to the ordered quarantine measure and ban on activities. The Authority rejected the reimbursement request because the claimant had violated occupational health and safety regulations. For this reason, there was no loss of earnings within the meaning included in the federal infection protection law and no corresponding claim for reimbursement. The claimant filed an action against this decision.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Court began its reasoning by assessing the conditions for the compensation request , as provided by the federal infection protection law, which had been met by the claimant. According to this rule, anyone who is suspected of being infected, is subjected to prohibitions on the exercise of work, and suffers a loss of earnings should be compensated.
The employee suffered a loss of earnings due to his quarantine isolation, according to federal infection protection law, for the period from May 9 to May 23, 2020. This order was initially expressed orally and confirmed in writing two days later. In view of the type of work performed, a butcher at a meat factory, the quarantined employee could not perform their tasks from home.
The Court analyzed whether the claim was legally based on the German civil code: in case of employment contracts, the German civil code is based on the concept “no work, no pay.” This means finding another legal basis for remuneration when the employee does not perform work.
The Court ascertained that a different legal basis could not be found in the German civil code. According to the German Civil Code “the person obliged to render the service shall not lose the right to remuneration thereafter if he is prevented from rendering the service for a relatively insignificant period of time due to a reason related to his person without his fault” (Art. 616 BGB). This was not applicable to the case as the segregation period of 15 days of quarantine was considered significant.
For this reason, the Court examined the employer’s legal obligation to adopt safety measures: employees should have sufficient and appropriate instruction on safety and health protection at work during their working hours. An employer is liable to continue to pay wages, if it is predominantly held liable for the employee’s impediment to perform their work.
However, the Court recognized that the organizational precautionary measures to contain infections were inadequate and did not provide sufficient protection to prevent new infections and to interrupt chains of infection, as the employee's quarantine order was issued due to the suspicion of infection. Indeed, it was not clear upon which concrete circumstances and contacts the employee was suspected of being infected. It was not clarified whether the infection was due to contacts within the workplace, at home, on the way to work or other private contacts. Due to this lack of knowledge, the claimant was not considered solely liable for the spread of Covid-19.
According to the German civil code, the claimant was not obliged to continue to pay wages for the period of the employee's fifteen-day quarantine.
Further, legally speaking the rules provided by the Continuation of Remuneration law (Entgeltfortzahlungsgesetz) do not apply because in the claimant’s application the employee was not incapacitated due to work.
However, the Court ascertained that in this case the compensation provided by the federal infection protection law applied. According to the Court the loss of earnings was due to the ordered quarantine.
Under the specific rules of the German federal infection protection law (§ 56 InfSchG) the worker was entitled to compensation for lost days of work, even if the employer was not obliged to pay under labor law. In this case, the employer in turn receives the sum paid to the employee from the competent authority.
Accordingly, it was irrelevant that the establishment, where the employee carried out their duties, had been closed at the same time due to an order by the authority.
Conclusions of the deciding body
The Court concluded that the claimant had the right to be refunded for a loss of earnings which amounted to € 704.00. The loss of earnings was deemed to be the remuneration to which the employee was entitled at the regular working hours applicable to him or her after deduction of taxes and social security contributions to a reasonable extent, according to the federal infection protection law. The claimant was entitled to reimbursement of the social security contributions paid for the quarantine measure which amounted to € 346.47.
Fundamental Right(s) involved
- Freedom to conduct a business
- Right to an effective remedy
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Freedom to conduct a business, Art. 12, German Constitution
- Right to get compensation, Art. 34, German Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
Throughout the sentence the Court applied the rule of law: the Court examined the claimant's application according to the German civil code: this analysis led to a clarification of the relationship between the applicable rules of labor law (German Civil Code) and the special rule of the German federal infection protection law. The Court upheld the claimant's request based on the federal infection protection law and ruled to grant compensation for economic losses.
Impact on national case law
This sentence was a pilot case: similar claims are pending in front of the Courts of Münster and Minden.
This case is linked to the case of the Administrative Court of Appeal Nordrhein-Westfahlen NRW, 13 B 940/20.NE because the same events led to a lockdown of the cities near the premises of the corporation. The link is available as an additional resource.
The sentence which rejected the injunction request to suspend the closure order: Administrative Court of Münster 5 L400/20 is available through the link in the additional resources.
The sentence which rejected the claimant’s argument concerning the unlawfulness of the closure order, issued by the district authority: Administrative Court of Münster 5 K938/20 is available through the link in the additional resources.
The federal infection protection law is available through the link in the additional resources.