Effective March 16, 2020, at 6:00 a.m. all retail establishments and all service providers within the Slovak Republic are closed, with the exception of the types of establishments exhaustively listed in the measure of the Public Health Authority of the Slovak Republic regarding threats to public health dated March 15, 2020, or the expanded list of business types effective March 30, 2020, as set forth in the measure dated March 29, 2020.
The measures listed above are examples of necessary measures adopted by government authorities in response to the spread of the COVID-19 coronavirus. The legal system of the Slovak Republic does not contain a provision governing the right to compensation for damages caused to legal entities and natural persons in causal connection with the aforementioned measures, or with the consequences of the declaration of a state of emergency or a state of emergency. An example of such specific legal regulation can be found in the Czech Republic, where, pursuant to Section 36 of Act No. 240/2000 Coll. on Crisis Management and on Amendments to Certain Acts, the state is obligated to compensate for damage caused in causal connection with crisis measures and exercises pursuant to Section 39(4) of this Act.
Is it even possible to assert a claim for damages in this situation? In this context, it is appropriate to mention the general prerequisites for the establishment of liability for damages, which are an unlawful act, the existence of damage, a causal link between the unlawful act and the damage (the so-called causal nexus), and fault. In the situation at hand, “damage” refers to the actual damage incurred and what the affected party has lost (lost profits), the existence of which is beyond doubt. Since the causal nexus and fault can only be assessed after identifying the unlawful act or breach of a legal duty, the key lies precisely in identifying this breached legal duty. Searching for an unlawful act that directly caused the onset of COVID-19 would likely be futile. It seems far more rational to look for breaches of duty resulting in the spread of COVID-19 to such an extent that it was necessary to adopt the aforementioned safety measures, which in turn caused the damages in question. A breach of such a duty could include, for example, the failure to adopt appropriate measures to restrict cross-border movement (and the resulting greater introduction of COVID-19 into our territory), insufficient stockpiling of necessary medical supplies in state material reserves, and so on. Since the outbreak of the pandemic in the Slovak Republic occurred a considerable time after the outbreak in the first affected countries and even later than in neighboring states, the competent state authorities undoubtedly could and should have anticipated the current development of the situation.
Article 46(3) of the Constitution of the Slovak Republic guarantees “the right to compensation for damage caused by an unlawful decision of a court, another state authority, or a public administration body, or by an incorrect official procedure.” The state’s liability for damage caused by public authorities in the exercise of public power is governed by Act No. 514/2003 Coll. on Liability for Damage Caused in the Exercise of Public Power and on Amendments to Certain Acts (hereinafter the “Act on Liability for Damage Caused in the Exercise of Public Power”), and this Act is a special legal regulation in relation to the Civil Code.
According to Section 415 of the Civil Code (hereinafter referred to as the “CC”), everyone is “obliged to act in such a way as to prevent damage to health, property, nature, and the environment.” The aforementioned provision, which is a so-called duty of care, applies if there has been no breach of another statutory duty or a contractual duty, the breach of which gives rise to general liability under Section 420 of the CC. According to Resolution II. ÚS 431/2013-21 of the Constitutional Court of the Slovak Republic, dated September 12, 2013 “The state is also materially liable to compensate for damage caused in the exercise of public authority even in cases where the direct executor of public authority acted improperly by failing to act in accordance with the duty of prevention arising from the provisions of Section 415 of the Civil Code.” It follows from the above that public authorities are also subject to the duty of care under Section 415 of the Civil Code. For an improper official procedure to constitute a breach of the duty of care resulting in liability for damages, it must be the immediate cause of the damage. The judgment of the Regional Court in Prešov dated June 26, 2008, Case No. 9 Co 23/2008, states that in the given case, a causal link exists even if “this consequence would have occurred even without the issuance of a decision by a public authority.”
On the issue of the exclusivity of the causal link between the breach of a legal duty (in our case, the breach of a duty of care) and the resulting damage, the Supreme Court of the Slovak Republic, in its resolution of January 31, 2012, Case No. 6 M Cdo 11/2010 (which was, however, overturned by a ruling of the Constitutional Court of the Slovak Republic dated February 12, 2013, Case No. III. ÚS 307/2012, but not on the grounds of a constitutionally inconsistent interpretation of the term “causal connection”) that an unlawful act “need not be the sole cause of the damage (cumulative causation); it suffices that it is one of the causes, and that it is an important, substantial, and significant cause.
