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Czech Republic to Compensate for Harm Suffered as a Result of Covid-19 Vaccination

Czech Republic to Compensate for Harm Suffered as a Result of Covid-19 Vaccination

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In the Czech Republic, persons who undergo Covid-19 vaccination have been given the opportunity to claim financial compensation from the state if the vaccination (or, more precisely, the medicinal product containing a vaccine) causes harm. The Czech Parliament adopted Act No. 569/2020 Sb., on the Distribution of Medicinal Products Containing a Vaccine for Covid-19 Vaccination and on Compensation for Harm Caused to Those Vaccinated by These Medicinal Products (“Act No. 569/2020 Sb.”), which allows such compensation. According to the explanatory memorandum, this measure aims to “facilitate compensation of those who get vaccinated if they are harmed by the vaccination, thereby also indirectly promoting interest in Covid-19 vaccination.”

However, the state’s indemnification does not apply to all Covid-19 vaccines, but only to those purchased based on the European Commission decision.

Until now, the state has been obligated to compensate for harm caused by compulsory vaccination, on the basis of the relatively recent Act No. 116/2020 Sb. on Compensation for Harm caused by Compulsory Vaccination (“Act No 116/2020 Sb.”). This act was adopted following, among others, the judgment of the Constitutional Court no. Pl. ÚS 19/14, in which the Constitutional Court assessed the constitutionality of compulsory vaccination: the Constitutional Court did not find it unconstitutional, but noted that if the state introduces sanctions for persons who refuse compulsory vaccination, the state should also adequately address cases where the vaccinated person suffers harm as a result of the vaccination.

Covid-19 vaccination is not compulsory. However, Act No. 569/2020 Sb. sets out that harm caused by Covid-19 vaccination and the scope of the compensation shall be assessed analogically under the rules for compensation for harm caused by compulsory vaccination, namely under Act No. 116/2020 Sb. Covid-19 vaccination is therefore the first non-compulsory vaccination for which it will be possible to claim damages from the state.

An application for compensation for harm caused by the Covid-19 vaccination should be submitted to the Ministry of Health, as is the case for compulsory vaccination. If the injured party is not satisfied with the way the Ministry handles their application, they may seek damages in court. However, an action against the state can be brought only provided that the right to compensation is first exercised at the Ministry, which is a precondition for bringing such an action.

LEGAL PRESUMPTION OF CAUSALITY

To facilitate the legal position of a patient applying for compensation for harm caused by the compulsory vaccination, Act No. 116/2020 Sb. envisages that for some likely consequences caused by the vaccination, the injured person will not have to demonstrate a causal link between the vaccination and the harm caused, as a legal presumption of causality applies in such a case. The likely consequences of a given vaccination are to be determined by an implementing decree.

Its draft was published by the Ministry of Health in March 2020 already; therefore, it does not mention any likely consequences of Covid-19 vaccination. If, even in the final version of the decree, Covid-19 vaccination is not mentioned, the position of those harmed by Covid-19 vaccination will be more difficult as they will not be able to rely on the legal presumption of a causal link. In that case, it would largely be up to the Ministry of Health how it will assess the consequences of the vaccination and how willing it will be to satisfy any patients’ claims.

LIABILITY OF VACCINE MANUFACTURERS

This law naturally does not affect in any manner the potential liability of other parties. Vaccine manufacturers will remain liable for harm caused by defective vaccines under the relevant provisions of the Czech Civil Code, which implement the EU Directive on the approximation of the laws, regulations and administrative provisions of Member States concerning liability for defective products (the so-called Product Liability Directive).

However, it would be necessary in this case for the harm to be caused by a defect in the vaccine. In connection with vaccination, harm often arises because of the body’s response to the vaccine, but this will usually not be considered a defect in the vaccine. In this context, the Commission has undertaken to compensate manufacturers for the damage they would suffer from any civil litigation, which has attracted some controversy and has also been the subject of the European Parliament’s interpellation for the Commission (such as the question for written answer No. P-000192/2021).

Finally, individuals who have suffered harm because of vaccination will also be able to claim compensation from the health service provider who administered the vaccine should the provider breach their obligations in administering the vaccine (e.g. a breach of recognized standards of medical care) or if the provider administers a defective vaccine (for example, a vaccine that has not been stored in accordance with the manufacturer’s instructions, etc.).

By Vaclav Audes, Partner, Frantisek Neuwirth, Senior Associate, and Denisa Fuchsova, 
Junior Associate, Havel & Partners

Czech Republic Knowledge Partner

HAVEL & PARTNERS, attorneys-at-law, with offices in Prague, Brno, Bratislava, Pilsen, Olomouc, and Ostrava, has a team of 220 lawyers, tax advisors and 500 employees in total, is the largest independent law firm in Central Europe.

Our clients include large international companies, leading Czech and Slovak firms, including strategic state-owned companies and public sector authorities, as well as medium-size businesses, individual entrepreneurs, and investors. We advise approximately 100 of the Fortune 500 companies, and almost 50 of the Czech Top 100 companies. HAVEL & PARTNERS currently provides its services to a total of 2,000 clients. We have the most comprehensive international support available to both Czech and Slovak law firms. We provide legal and tax advice in 12 world languages in more than 90 countries around the globe. Up to 70 % of the transactions we deal with involve an international aspect.

HAVEL & PARTNERS was named the best law firm operating in the Czech Republic by the prestigious British rating agencies Chambers and Partners (2020) and Who’s Who Legal (2018, 2019). It is also the most successful law firm, providing the most comprehensive legal services in the Czech Republic and Slovakia, based on the total number of all nominations and awards in all years of the Law Firm of the Year awards. The firm became the absolute winner of this competition four times in the last six years, receiving the main award Domestic Law Firm of the Year in the Czech Republic (2015, 2017, 2018, 2020) and ranking as one of the most recommended law firms in all categories of law. Our company is also a three-time winner of the Law Firm of the Year award for Best Client Services (2015, 2016, 2019). In the field of M&A, HAVEL & PARTNERS is the best law firm in the Czech Republic based on the annual International Advisory Experts awards (2018, 2019). In Slovakia, it also won the prestigious global M&A Today Awards (2013–2018) for Mergers & Acquisitions six times in a row, and repeatedly won first place in the ranking by Lawyer International Legal 100 (2017, 2018). Prestigious international rating agencies EMIS DealWatch and Mergermarket have ranked HAVEL & PARTNERS among the leading law firms by the number of transactions completed in the entire CEE region since 2009. Based on annual awards of the Acquisition International magazine, HAVEL & PARTNERS has become the Law Firm of the Year 2019 in the M&A category in the CEE region.

Firm's website: https://www.havelpartners.cz/en/

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