Possible Liability of the State Treasury for the Restriction of Economic Activities During the Pandemic of COVID-19

In connection with numerous restrictions on civil rights and freedoms, in particular on the freedom to conduct business activity during the SARS-CoV-2 virus, the question arises whether entrepreneurs who suffered damage due to these restrictions may seek compensation from the State Treasury. Thus, the subject of this study is an attempt to answer the question of the possibility to effectively pursue claims for compensation from the State Treasury for damage caused to entrepreneurs as a result of the implementation of bans or restrictions in certain areas of economic activity in connection with the COVID-19 pandemic. Lawsuits for compensation for such damage are currently being announced in the public space, and their legal basis is provided by the provisions of Article 417 et seq. Polish Civil Code. The study analyses two possible bases for the State Treasury’s liability for damages. The first of them is Article 4171 §1 of the Polish Civil Code concerning—as it is accepted in the literature—normative (legislative) unlawfulness. This regulation is applicable in the case of claims by entrepreneurs based on the allegation of illegality of regulations introducing bans or restrictions on business activity during the COVID-19 pandemic, while the second one is the provision of Article 4171 § 4 of the Polish Civil Code regulating liability for damage caused due to the so-called legislative omission. This norm, in turn, can be the basis for claims in a situation where entrepreneurs do not question the legality of restrictions or prohibitions. However, they argue that their introduction should be a consequence of the proclamation of a state of emergency, which is a universal instrument for combating threats in the form of a statute issued on the basis of the provisions of Chapter XI of the Constitution of the Republic of Poland—the Act of 18.4.2002 concerning the state of natural disaster. The author’s intention was to structure this chapter in such a way that the reader would obtain an answer to the questions: 1) whether it is possible for entrepreneurs to pursue compensation claims in Poland and 2) whether the anti-covid law has in practice limited or even prevented the application of compensation provisions for so-called “legislative unlawfulness” (Polish: “bezprawie legislacyjne”)?