INTRODUCTION

OVERVIEW

For a long time, the idea prevailed that a public authority might not be declared liable when it acted in a faulty manner, due to the principle of separation of powers in the State, interpreted very strictly. It was not conceivable that a judge could consider a public authority to be at fault. Besides, a public authority had a great degree of political freedom to make decisions and to act. Therefore, public authorities benefited from immunity. Non-contractual civil liability was however admitted as regards the acts of private management taken by the administration. Things changed at the beginning of the 1920s.

According to the Supreme Court now, the State is bound by legal rules and especially by the rules governing compensation for damage resulting from injuries to civil rights and legitimate interests as a result of fault. Further, considering that art 144, para 1 of the Belgian Constitution stipulates that all civil rights are under the protection of the judiciary, judges may and have to take cognizance of disputes concerning compensation of these injuries even when the tortfeasor is the State or another public body. The principle of separation of the powers of the State, which aims to ensure equilibrium between these powers, is not of such a nature that the State would be exempted from the legal obligation to compensate damage it may have caused.

It results from these considerations that art 1382 of the Civil Code, according to which ‘[e]very act whatever of man that causes damage to another, obliges him by whose fault it occurred to repair it’, is applicable to the State and all public bodies. Anyone who files a claim against the State or other public authority will have to prove that the latter committed a fault (through one of its organs or through a staff member) in a causal relationship with the damage for which compensation is claimed.