INTRODUCTION

OVERVIEW

The German law of public authority liability (Staatshaft ung – State liability) is regulated in a rather complicated way. A first distinction has to be drawn between the personal liability of the civil servant and the liability of the respective public authority or the State for its servants. The second and even more important distinction is between lawful and unlawful acts of State servants or public authorities. The State can be liable for both kinds of acts though under different conditions. In general, liability requires an unlawful act, but exceptionally a lawful act may suffice.

Liability for unlawful State acts causing loss is based on different sources. First, there is the personal liability of persons acting as formal civil servants (Beamtenhaft ung). This is regulated by statute (§839 Bürgerliches Gesetzbuch, Civil Code – BGB). The provision applies irrespective of whether these persons acted in the public or private field of State activities (acta iure imperii and acta iure gestionis). Second, there is the liability of the State for acts causing loss in the private field: this is regulated by the general provisions of the BGB on liability for the acts of employees (§§31, 278, 831 BGB). Third, there is the liability of the State for unlawful acts of its servants in the public field: this is regulated by art 34 Grundgesetz (Basic Law, GG). Under this provision, which is of central importance for public authority liability, the personal liability of the servant for acta iure imperii is substituted by the liability of the State; the victim has no claim against the civil servant. However the State may claim redress against the servant if the latter acted with intent or grave negligence. Fourth, where the State has unlawfully impaired property rights of a citizen the courts have developed a right to compensation (Haft ung aus enteignungsgleichem Eingriff – liability for an expropriation-like intervention).