For decades, accident compensation in France and Germany has not only been a matter of tort law, but also of other legal mechanisms. Like in many other European countries, both private insurance and social security have led to a certain socialisation or collectivisation of the settlement of compensation claims. More recently, this ‘decline of individual liability’, well documented in the legal literature, has been accentuated by the appearance of compensation funds.
Despite their increasing number, compensation funds are still a Cinderella issue for many tort lawyers. Some French or German textbooks on tort law mention alternative compensation schemes in the sections on medical malpractice or in the chapter on traffic accidents, barely touching the technicalities of the subject. Others simply recognise the existence of compensation funds as a complement to the traditional tort law, designed to occasionally fill the gaps in the ordinary civil liability system.
Either one of these two approaches might have been adequate 20 years ago, when compensation funds played only a limited role. In recent years, the situation has become completely different because compensation funds have undergone a kind of ‘emancipatory movement’. Since the beginning of the twenty-first century, they have been considered more and more to be an autonomous legal compensatory instrument, halfway between private insurance and social security.
The following lines are intended to provide a brief overview of the situation of compensation funds under French and German law. It is obvious that this chapter cannot address all of the issues that arise during comprehensive research on compensation funds. First, those issues are far too numerous, and the author would like to refer the reader to more detailed studies. Second, it is not an easy task to organise the questions relating to compensation funds, because they touch on many legal areas, such as public budgetary law, social protection law and the law of proceedings.
With these caveats in mind, this chapter will concentrate on four sets of fundamental issues that may be divided into a dogmatic (Section 3), a practical (Section 4), a procedural (Section 5) and an organisational part (Section 6). To lay the groundwork for this overview, it is essential, however, to start by providing a survey of the diversity of compensation funds in both countries (Section 2).