Germany Covid Vaccine NFCS

Introduction

The introduction of no-fault vaccine injury compensation in Germany followed a 1953 decision of the German Supreme Court relating to smallpox vaccination ruling that people suffering damage to health caused by compulsory vaccination were entitled to compensation (see Looker and Kelly 2011). Initially, laws were introduced regulating vaccine injury compensation at a state level. State regulations were replaced in 1961 by federal legislation (Bundesseuchengesetz - ‘German Federal Epidemic Act’).

The Federal Epidemic Act was in turn replaced in 2001 by the ‘Infektionsschutzgesetz’ (‘IfSG’), (‘German Infection Protection Act’) which, in conjunction with the Federal Law on War Pensions (‘Versorgung nach dem Bundesversorgungsgesetz’/‘BVG’), regulates the current no-fault compensation scheme for vaccine injuries in Germany. There is no specific COVID-19 start date, but it appears the scheme has covered COVID-19 vaccines since the start of the COVID-19 vaccination campaign in Germany.

Claims for compensation are filed with the Social Affairs Offices (Versorgungsämter). The Public Health Departments of the respective Federal States (Länder) are also responsible to produce reports assessing potential causal links between vaccination and damage to health, and can offer assistance with the initiation of compensation claims (see the section on vaccine injury on the Robert Koch Institute website, here).

The funding for the scheme comes from the relevant federal state (Land), according to Section 66 IfSG.

Vaccines Covered

This NFCS covers any publicly recommended vaccinations (which includes both compulsory and non-compulsory vaccines) – see Section 60 IfSG.

Although not specifically indicated in the law, it seems this scheme includes vaccines approved for emergency use and standard approvals.

Injuries Covered

This NFCS covers both temporary and permanent injuries.

Under this NFCS only eligible injuries are covered. Eligible injuries are defined as ‘...the health-related and economic consequences of a health impairment due to vaccination the degree of which exceeds that of a normal post-vaccinal reaction’ – see Section 2, 11 IfSG.

Charges for making a claim

There is no charge for making a claim under this scheme.

Claimants

Under this scheme the following categories of individuals are permitted to make a claim:

Injured vaccinated person;
Surviving dependants of an injured vaccinated person.

See Section 60 IfSG, paragraphs 1 to 4.

It is not known whether under this scheme the claimant is allowed to nominate a legal representative to make their claim.

Losses covered

This scheme pays the following:

Live vaccine recipient	Dependants of vaccine recipient	Estate of a deceased vaccine recipient
Only eligible economic losses are compensated	Compensation payments are for general categories and are not broken down into economic and non-economic losses.	No Compensation is specifically provided for the estate or legal heirs of injured vaccinated people.

Payments consist of a mixture of periodic payments and lump sum payments.

The main elements of compensation are listed in Section 9 of the BVG and further defined in following sections of the BGV. They include the following:

Medical expenses;
Disability pension and care allowance;
Funeral benefit and death benefit;
Survivor's pension.

Funeral expenses are available under this NFCS.

Compensation under this scheme calculated on an individual basis using tariffs/guidelines to assist with quantification.

Loss of earnings appear to be covered under this NFCS as occupational compensation (‘Berufsschadensausgleich’) is paid (see BGV, Section 30). They are quantified on an individualised basis.

The maximum quantum that can be awarded under this scheme depends on the nature of the injury and is determined by reference to tariffs/guidelines established by law.

Time limits for claims

The scheme does not set a time limit between vaccination and the adverse event occurring.

There is no specific time limit to file a claim under this compensation scheme.

Evaluating claims – standard of proof required

The standard of proof required by the scheme is that on the balance of probabilities.

In case of scientific uncertainty regarding the cause of an applicant's condition, compensation can still be awarded with the consent of the highest Land authority responsible for the compensation of war victims ('Kriegsopferversorgung') – see Section 61 IfSG.

Appeals and the right to litigate

There is a restricted right to litigate - If a person has opted to apply to the NFCS, this prevents them from starting a civil liability claim against third (non-state) parties. In this case, claims against third parties are assigned by law to the federal state liable to pay compensation. However, any claims which are not covered or exceed the compensation coverage provided by the relevant legislation (BVG) can still be asserted against third parties.

There is both an internal opposition process and an external review process where the social court reviews the Social Affairs Office decision.

Useful information and links

It is not known whether this scheme produces an annual report including data on claims & financial performance (claim numbers, payments, claim processing timeframes, administrative costs, etc).

Links to legislation:

‘Infektionsschutzgesetz’ (‘IfSG’): https://germanlawarchive.iuscomp.org/?p=2487 [English translation]

‘Versorgung nach dem Bundesversorgungsgesetz’ (‘BVG’): https://www.gesetze-im-internet.de/bvg/BJNR104530960.html [in German]

Academic literature:

Looker, C. and Kelly, H. No-fault compensation following adverse events attributed to vaccination: a review of international programmes. Bull World Health Organ 89:371–378 (2011). doi:10.2471/BLT.10.081901. Available at: https://apps.who.int/iris/bitstream/handle/10665/270902/PMC3089384.pdf?sequence=1&isAllowed=y.

Other resources:

Robert Koch Institute website: https://www.rki.de/DE/Content/Kommissionen/STIKO/Impfsicherheit/sicherheit_impfungen_node.html