Liability for Damage Caused by Normative Restrictions in the State of Epidemic

A State of Epidemic is a key anti-epidemic emergency regime under Polish law. It is defined as a legal situation introduced in a particular area in connection with an epidemic in order to undertake anti-epidemic and preventive measures specified in the Act to minimize the effects of the epidemic. This article explores a problem of liability for damages caused by illegal or unconstitutional governmental regulations issued by Minister of Health and Council of Ministers as a reaction on COVID crisis and when the State of Epeidemic had been formaly announced. The analysis demonstrates that certain restrictions introduced by the Goverment, in particularly those as intrusive as the ban on leaving the home, must be directly and comprehensively authorised by the Parliament. Governmental regulations must not, without comprehensive statutory authorisation, encroach upon spheres of personal and bussines interests. However, claims for damages for normative restrictions—on the basis of the provisions of art. 417(1) § 1 of the c.c. and art. 77 of the Constitution—depends on a preliminary ruling of unconstitutionality or illegality of a particular restriction. If the Constitutional Tribunal is not finding the restriction unconstitutional or illegal, it is impossible to get compensation. However, there is only one first-instance judgment that has been issued in such cases so far. The court dismissed the entrepreneur’s claim for payment of compensation by the State Treasury for profits lost by him in connection with the introduction of the ban on conducting business activity.