Turnaround in the Ischgl case: is there compensation?
It was the corona hotspot in Europe at the beginning of the infection process of the corona pandemic in spring 2020: the popular Austrian ski resort of Ischgl in Tyrol. Photo: KI Photography/stock.adobe.com
It was at the very beginning of the European pandemic when more and more people in Ischgl contracted the corona virus. Now the OLG Vienna includes that the state has not reacted properly – and could therefore be liable.
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In the so-called Ischgl proceedings, the Higher Regional Court (OLG) in Vienna gives numerous plaintiffs new hope that they may still be able to receive compensation from the state of Austria. The court referred the case back to the lower court for review.
The Ischgl proceedings are based on a serious allegation. According to this, thousands are said to have been infected with the corona virus in Austria’s ski resorts, especially in Ischgl, in March 2020 – because Austria as a state did not act properly. Shortly after the events became known, the Austrian Consumer Protection Association (VSV) created the possibility of registering for a class action lawsuit. He wanted to take action on both a criminal and civil level because of what happened.
The criminal investigations were then taken up by the public prosecutor’s office, but were later discontinued. For this purpose, the first model lawsuits for damages were filed at civil law level in autumn 2020, and one year later negotiations began before the regional court in Vienna for civil law matters.
One of the plaintiffs was a German traveling to Ischgl on March 7, 2020. He contracted the corona virus and even today the craftsman is so limited due to the course of his illness with Long Covid that he among other things, can no longer perform under his profession. He therefore demands 100,000 euros from the Republic of Austria: compensation for pain and suffering, healing and care costs and lost earnings.
State Liability for False Press Releases?
However, the German skier and the other lawsuits were successful before the regional court. The state is generally liable for damage that state organs “have culpably caused to anyone in the execution of the law through illegal behavior,” the court explained in one of the Ischgl judgments. The protective purpose of the Epidemics Act is the protection of the general public and not the protection of the individual. No official duties towards the individual are standardized, so that the individual has no right to compensation.
The Higher Regional Court of Vienna confirmed these statements of the regional court, but also based on another duty of the state, which may now justify claims for damages. According to this, the right to life and physical integrity entails the claim of the individual against the state that state information about imminent dangers must be complete and correct.
However, that is exactly what the state of Tyrol did not do on March 5, 2020. It announced that two Icelandic ski guests were only infected on the flight and not in Ischgl – which was not the case and, according to the OLG, was known with a delay on March 6, 2020. The country would then have had to correct the press information, which was not done. Then, among other things, the German skier would no longer have traveled to Ischgl on March 7, 2020. The Higher Regional Court therefore referred the case back to the Regional Court for reassessment.
Hope for liability claims
The Austrian administrative and constitutional lawyer Prof. Dr. Peter Bussjäger sees a liability claim as justified: the supreme court has recognized that press releases from a state organ are to be classified as sovereign action. “A warning from the Financial Market Authority about a product also triggers a liability claim,” explains Bußjäger in the Viennese newspaper.
The consumer advocates from the VSV like to show themselves. “The court of first instance must now examine the official liability claims in a well-founded manner. We therefore trust that the Republic of Austria will ultimately pay damages to the victims of Ischgl,” said Peter Kolba from VSV dpa.
With materials from the dpa