Due to a complicated legal entitlement, the German economy is actually entitled to compensation for the consequences of the war in Ukraine. But nobody makes use of it and the associations are silent. Why?
It could be so easy! In the current crisis, the German economy has a right to appropriate compensation from the federal government. Not alms, but a legal right. You would only have to assert it. Unfortunately, the business associations and the IHKs are silent on this. A total failure.
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The legal institution is called expropriating intervention. Lawyers call this area of law state liability law. It’s not particularly popular – it’s terribly complicated, hasn’t been tested in practice, and is politically uncomfortable in a democracy. However, according to the clear case law of the Federal Court of Justice, this so-called expropriating intervention grants all entrepreneurs a right to appropriate compensation under the following condition: the state acts lawfully, but its actions lead to a so-called special sacrifice for certain companies.
Prof. Dr. Viktor Winkler was the global Head of Global Standards Sanctions at Commerzbank and, as a sanctions expert, most recently spoke before the Finance Committee of the German Bundestag. His law firm in Frankfurt am Main, which specializes in legal crisis management, is currently advising numerous managing directors and board members on the Russia sanctions.
Funny term, but actually banal: If a community takes very tough, but necessary and correct measures in the public interest, then it has to compensate those who have been hit particularly hard by it accordingly. In the words of the Federal Court of Justice: A special victim is what “in relation to other persons who are also affected has a particular ‘seriousness’ or causes a violation of equality in relation to other persons who are not affected”.
This is exactly the current situation: We as a community decide to take measures against an illegal war of aggression – and we as a community (= the state) must compensate those who suffer particularly blatant disadvantages for this lawful action. A downright classic example of the expropriating intervention in the past were flood protection measures: the state is raising sea dikes. A claim from expropriating intervention exists for the resulting flood damage.
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The situation now is more than comparable. Berlin and Brussels are waging an economic war that is politically justified and legally justified, but the companies are – completely and without exception – innocent and impartial. The business associations are silent. All of them. They don’t want to be on the wrong side of this economic war, much less the actual war. But this concern is completely unjustified. Asserting a claim for expropriating intervention against the federal government is not only not a criticism of the policy of the federal government or the EU, but it is the strengthening of a German economy that is still politically impressively united against Putin and Putin’s war by means of the law – and by the way a legal institution, which is over 200 years old.
Of course, there is still no established case law that has already confirmed such claims specifically for the situation since February. This is one of the reasons why legal action must ultimately be taken instead of waiting for alms from the traffic lights, the amount of which is far below that of a legal claim for compensation. Every legal option needs to be discussed and attempted if it is true that many corporate livelihoods are already at stake.
It is therefore high time that the Chambers of Industry and Commerce and the trade associations counteract their image of creating slides as their main job and going to lunch with backbenchers and finally threaten the federal government with such complaints in a united, serious and emphatic manner. Otherwise we will lose the economic war with Russia before the actual war in Ukraine can be won.
