INTRODUCTION

OVERVIEW

In Austria, liability of the State (in the broader sense) for harm caused in the course of the exercise of public authority is referred to by the German term Amtshaftung, which comes very close to ‘public authority liability’ as used here. Even if the component word Amt can also designate a public office, institution or entity, as used in this composite word it rather stands for the authority conveyed by the State to such an institution. Instead, the exact translation of State liability (Staatshaftung) is commonly used to designate (only) the liability of the (federal) State for breach of EU law.

Further to terminology, the individual acting for a public authority is commonly referred to as the latter's Organ (organ), which is why this term will be used throughout as well when speaking of the actor who is claimed to have caused the victim's loss through her conduct on behalf of the authority. In Austrian doctrine, the question of what behaviour is attributable to a public authority that triggers the latter's liability is commonly discussed with a focus on who is an organ within the meaning of the Amtshaftungsgesetz (Liability of Public Bodies Act, AHG) and thereby on which functions one must exercise on behalf of a public entity rather than directly addressing its authority as such.

Not surprisingly, public authority liability in the civil law jurisdiction of Austria is based upon statutory (including constitutional) law. While judge-made law is formally not recognised in Austria, previous court decisions may be deemed persuasive by subsequent judges and thereby contribute to the organic development of court practice in this field.

Despite the fact that the addressee of public authority liability claims is the State, their basis is nevertheless considered to be a part of private rather than public law. In the absence of specific rules as compiled in the AHG or other statutes, general principles of tort liability apply.