Content Listing

Summary

INTRODUCTION

OVERVIEW

Public authority liability law in Norway is integrated in the general civil law system. Thus the public authority is treated in the same way as private parties in civil litigation. The general principles of tort law have applied, but with certain special adaptations in some areas. These adaptations are partly generated by statements in the preparatory works of the Compensation for Damage Act 13 June 1969 no 26 (Skadeserstatningsloven 13 June 1969 no 26, skl), and partly generated by statements of the Supreme Court. These adaptations are mainly connected to the application of the rule of liability for culpable acts as a part of the Norwegian version of respondeat superior, see skl §2–1 (1). The fact that the public authority exercises special public functions has had the effect that the culpa standard has been applied in a more lenient manner than it normally is. A more precise outline of this general rule will be given below in no 25 ff.

In other respects there are no special rules concerning liability for public authorities. The fact that questions of liability have been addressed by applying respondeat superior means that the most important discussions have concerned the culpa standard in various types of cases. However, there has also been a special debate on whether there is strict liability or only fault liability for void administrative decisions. While the Supreme Court decisions are ambiguous in answering this question, theorists are divided. Some theorists hold that culpability is required for liability to be established, whereas others maintain that there is strict liability for loss stemming from void administrative decisions. Further details on this point are explained below in no 14 ff.

HISTORICAL EVOLUTION

In the 19th century the prevailing view was that the state had no responsibility at all and could not be liable. This was a legacy from the age of autocracy. In the last part of the century this view came under pressure. As public activities increased, there was a corresponding need for liability rules for damage resulting from public activity.

Summary

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.

Summary

INTRODUCTION

OVERVIEW

In most respects, but not without exception, the State and its emanations are subject to the ‘rule of law’ which, as interpreted by the 19th-century constitutional historian AV Dicey, entails their equal subjection – in common with persons generally – to the ordinary law administered by the ordinary courts. The principle applies to every public body and every public official. Generally speaking, public bodies and public officials are therefore subject to the same tortious liabilities as private persons. They are not liable without more for causing damage in breach of their duties or in wrongful exercise of their powers. The circumstances must be such as to make out the elements of a recognised ‘tort’ or to trigger the obligation to provide just satisfaction for violation of the Human Rights Act 1998 (HRA). As regards liability in tort, the principles applied have for the most part been developed through judicial decision, though statute has also played a role – for example, in establishing additional liabilities and removing certain common law restrictions on liability. Fault is almost always required. In terms of practical significance, the three most important bases of claim against a public authority in tort are negligence, breach of statutory duty and misfeasance in public office.

Dicey's idea of equality before the law – though it holds good to a considerable extent – is subject to a number of exceptions: (a) there is one tort, misfeasance in public office, that applies only to public officials; (b) particular public officials (eg judges) benefit from a general immunity from tortious liability; (c) various conceptual devices restrict the tortious liability of other emanations of the State (justiciability, discretion, the policy sphere); (d) the courts tend to be more willing to negate a duty of care for reasons of public policy where a public defendant is involved; (e) punitive (or exemplary) damages may be awarded for ‘oppressive, arbitrary or unconstitutional action by the servants of the government’ in circumstances where no such award would be possible against a private person; and (f) the liability to compensate under the HRA is exclusive to public authorities. These points of distinction are elaborated further in the analysis below.

Summary

INTRODUCTION

OVERVIEW

Although public authority (State) liability has expanded in the past few years mainly as a result of the introduction of a Bill of Rights into South African law, the basic approach remains the same. Under South African law, State liability is primarily judge-made private law. The State and its organs are vicariously liable for any wrong committed by its servants acting in their capacity and within the scope of their authority. The vicarious liability of the State is regulated by ordinary principles of delict and the ordinary compensatory delictual remedies are therefore available. Other appropriate relief may also be obtained for an infringement of a fundamental right by the State. The requirements for vicarious liability are the existence of an employer-employee relationship (where it is important that the State should have a right of control over the official); the commission of a delict by the official (where all the requirements of a delict, especially wrongfulness and fault, should be satisfied, where the bonafide and rational exercise of a State official's discretion will not be wrongful, and where the mere negligent statutory breach and consequent economic loss is not sufficient to hold State officials delictually liable for the improper performance of an administrative function); and the delictual conduct of the official must have taken place within the course and scope of his employment (where intentional conduct on the part of the official will, in the absence of a sufficiently close link between the official's act and the business of the State, not found vicarious liability). There is as yet no indication that the legislature as organ of State may be delictually liable. Although the judiciary is not an organ of State, the State can be vicariously liable for malicious conduct on the part of members of the judiciary. Otherwise the range of vicarious liability covers the national, provincial and local governments.

Summary

E, cycling on a winding public cycle path crossing private property, comes around a sharp bend, only to find that the path suddenly narrows and that there is a cyclist coming the other way. Neither cyclist is able to see the other until the last moment because of a wall at the side of the cycle path. To avoid a collision, E rides off the path onto rough ground, goes over a concealed hole, is thrown from her bike and suffers serious injuries. Previously, a warning that the cycle path narrows suddenly into one lane was painted on its surface just before the bend, but this had been covered by tarmac following repair works, and F, the responsible public authority, had failed to re-paint the warning notwithstanding the lapse of several months and its admitted knowledge that this section of the cycle path was potentially dangerous. It now defends its inaction on the basis of a drastic cut in its public funding, in consequence of which it resolved to defer all spending on cycle paths so as to concentrate on higher spending priorities. E sues F (and/or the State) for damages, alleging that F ought to have re-painted the warning and that she would have slowed down and avoided the accident if this had been done.

AUSTRIA

Austrian case law holds that the failure to erect mere warning signs are not acts of authority, but rather concern a private law duty of the road owner to safeguard traffic, as they do not order some kind of specific conduct of the road users, but merely inform them of dangers. Consequently, public authority liability under the AHG cannot arise. This does not necessarily leave victims uncompensated, however: they may still be indemnified under §1319a ABGB, which provides for a special liability of the keeper of a road, but only if he or his auxiliaries acted with at least gross negligence. If the road is owned and/or maintained by a public law entity, it may also be held liable under said provision for failure to maintain its roads or the signs erected upon them, but only with respect to its private law duties as a road owner (or keeper) and irrespective of any authority attributed to it.

In recent decades, the liability of public authorities has been one of the main areas of development in and at the edges of tort law in Europe, with major reforms implemented or considered at a national level, and a steady stream of major court decisions. During the same period, 'Member State liability' has also been recognised in the law of the EU, and the interplay of principles of national and EU law - and additionally the 'just satisfaction' jurisprudence of the European Court of Human Rights - evidently warrants close attention.In this context, the aims of the present study are to contribute to the understanding of the law of extra-contractual liability as it applies to public authorities in the legal systems of Europe (and selected non-European jurisdictions), to facilitate its enhancement where necessary or desirable, and to consider the possibilities for harmonisation in the area - specifically, through the extension and adaptation of the Principles of European Tort Law to cover public authority liability.With contributions by:Bjarte Askeland, Ewa Baginska, Jonathan Cardi, Giovanni Comand�, Eugenia Dacoronia, Jef de Mot, Isabelle Durant, Duncan Fairgrieve, Michael Faure, Israel Gilead, Michael D Green, Anne Keirse, Bernhard A Koch, Fran�ois Lich�re, Piotr Machnikowski, Ulrich Magnus, Miquel Mart�n-Casals, Johann Neethling, Luca Nocco, Ken Oliphant, Maria Jos� Reis Rangel de Mesquita, Jordi Ribot, Lubo� Tich�, Vibe Ulfbeck, Pierre Widmer, B�n�dict Winiger.About the editor:Ken Oliphant is a Professor of Tort Law at the University of Bristol, United Kingdom.

Summary

Under fire from a dangerous armed robber, Police Officer P (employed by Police Authority Q) reasonably concludes that he must fire back in order to preserve his own life and the innocent bystanders around him, and lawfully does so. P's bullet hits another innocent party, R, who out of pure misfortune comes round the corner of the building where the armed robber is sheltering at precisely the wrong moment. A second bullet that P fires hits and damages a motor vehicle belonging to S. In the confusion, the armed robber makes off and is never traced. R and S seek damages from P and/or Q (and/or the State) for their gunshot injury and property damage respectively.

AUSTRIA

R and S are eligible to claim compensation from the federal state, which has to indemnify their losses according to the Polizeibefugnis-Entschädigungs gesetz (PolBEG), assuming that P used a firearm falling under the Waffen ge brauchs - gesetz. R's claim is reduced by whatever he can claim under the Verbrechensopfergesetz (VOG). To the extent R and S have first-party insurance cover for losses of the kind sustained, claims under the PolBEG are barred.

The facts do not imply that R or S in any way triggered the police action or contributed to their own losses in a blameworthy manner, either of which would exclude or at least reduce their claims.

R and S have to file a request for payment with the Federal Ministry of the Interior, which has to react to it within three months. In the absence of a response or if R and/or S are dissatisfied with the decision by the Ministry, they can pursue their claims in court.

While fault of P is not required for claims to arise under the PolBEG, if established, it may give rise to a competing entitlement for compensation under the AHG, in which case the request filed by the victims with the Federal Ministry of the Interior also counts as a filing with the Finanzprokuratur as required by the AHG, starting from the moment it receives the request forwarded by the Ministry of the Interior (§7 para 1 PolBEG). The prime advantage of such a faultbased claim under the AHG is the fact that the latter also extends to lost profit and non-pecuniary damage. Needless to say, the victims can only recover once.

Summary

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.

Summary

CONTEXT

In the last decades, liability relating to public authorities (‘public authority liability’) has been one of the main focuses of development in and at the edges of tort law in Europe, with major reforms implemented or considered at national level, and a steady stream of major court decisions. During the same period, ‘Member State liability’ has also been recognised in the law of the EU, and the interplay of principles of national and EU law – and additionally the ‘just satisfaction’ jurisprudence of the European Court of Human Rights – evidently warrants close attention. It was against this backdrop that the European Group on Tort Law Group embarked on its investigation of public authority liability from a comparative perspective.

EXISTING STATE OF COMPARATIVE SCHOLARSHIP

Naturally, the importance of the topic means that several major comparative law studies have been undertaken in the area already. But the sheer pace of recent developments itself justifies the pursuit of further comparative research on the subject, and this was one of the considerations that led the European Group to embark on its own project on public authority liability. Irrespective of timing, it was also felt that what the Group would be able to produce would in any case have the potential to make a meaningful contribution to the existing literature. The Group's aspiration was to produce something more than merely a collection of conference papers and/or public lectures by embarking on a long-term and coordinated study that applied a common methodology to the description of public authority liability law in different jurisdictions, and sought to present information about each in a format that facilitates a point-by-point comparison between them. The resultant reports are contained in Part I of this book.

Further, it struck the Group as desirable to test and interrogate the information provided in these general accounts of public authority liability in different countries by inquiring into the application of the principles identified to concrete facts.

Summary

G is a State agency that has responsibility for licensing commercial pleasure boats to ensure their safety; possession of a licence is a condition for the use of such a boat for fee-paying passengers. G's inexperienced inspector, H, certifies the safety of a commercial pleasure boat owned by I, but has overlooked a defect in the structural soundness of the boat's hull that should have been apparent to an experienced inspector. I is unaware of and could not reasonably been expected to discover the defect. The boat consequently springs a leak while on water with passengers and sinks. I is trapped underwater for a period, and suffers brain damage from oxygen deprivation. One of his passengers, J, drowns.

I now seeks damages from G and/or H (and/or the State) for his loss of profit, the loss of his boat and his personal injury. J's dependants also seek damages from the same defendants. G wonders whether, if it is held liable, it would be able to recover an indemnity from H. Would it make any difference to this claim if H had been aware of the defect but took a bribe from I to certify the boat's safety anyway?

AUSTRIA

Both I and J's dependants can claim compensation from G if H was acting out of G's own authority, otherwise the prime – and ultimate – payor of compensation under the AHG is the entity from whom G derived its authority that was exercised by H. The licensing process seems to involve safety checks, which undoubtedly have the purpose of protecting the well-being of those aboard. The problems with the hull should have been identified in the course of the inspection and are therefore clearly within the scope of the licensing process. The lack of H's experience can of course not serve as a defence since the standard of care owed is defined by the expertise of a person duly performing such tasks in general. Direct actions against H are cut off by §9 para 5 AHG.

Summary

INTRODUCTION

OVERVIEW

The rules for liability of the European Union for damage committed by its institutions and servants have several features that render them incomparable to the rules of state liability which exist in domestic legal systems.

EU law does not contain an extensive system of tort liability rules that could serve as a foundation for specific rules of liability incurred by public authorities. None of the primary questions of liability for damage (the concepts of unlawfulness, fault, damage, causality) are answered in European law. Thus, liability rules for the conduct of bodies and servants of the EU are not merely one element of European tort law, but rather its main element.

These rules are formulated very generally. The conditions of liability have not been expressly laid down in law (art 340 TFEU), as reference is made to the general principles common to the laws of the Member States. As a result, detailed rules of liability borne by the EU for damage are created in judicial rulings made by the CJEU, both the Court of Justice and the General Court (previously the CFI). Furthermore, the courts themselves do not provide more than a general formula for the conditions of liability. They thus avoid a precise definition of the conditions for compensating loss by using abstract formulae, preferring an elastic application of general criteria to particular facts in a case. The reference to ‘general (common) principles’ is not treated as a requirement to undertake detailed comparative argumentation, nor even to examine the contents of individual states’ legal systems. The idea is rather to seek common primary characteristics in domestic legal systems and to confront them with the aims and tasks of the European Union.

The most important characteristics of EU liability are:

Summary

An abnormally high number of food poisoning cases are, on reasonable grounds, initially attributed by a minority of the government's scientific advisers to the consumption of unpasteurised cheese. The Minister for Food Safety, M, consequently exercises her statutory power to issue regulations relating to her area of responsibility and imposes an indefinite ban on the sale of cheese that has not been pasteurised. In doing so, she seeks to balance the possible risk to the public disclosed by the scientific evidence with the economic interests of producers of unpasteurised cheese. After a period of months, it emerges that the food poisoning outbreak was wholly unconnected with the consumption of unpasteurised cheese, but M delays for over a year before lifting the ban. M (and/or the State) is now sued by manufacturers of unpasteurised cheese who suffered loss because of the ban, including the spoilage of cheese that had been manufactured but could not be sold, the cost of hiring pasteurisation equipment for the duration of the ban, and loss of profit. It is alleged, first, that M acted improperly in imposing the ban and maintaining it for three months and, secondly, that she ought to have lifted it on the basis of the new evidence at the end of that period and only delayed lifting the ban through inefficiency. It is further argued that the manufacturers affected should receive compensation even if M did not act improperly.

AUSTRIA

If the lifting of the ban came too late, the State will be liable for M's omission to declare an end to the ban in a timely manner. If instead the prolongation of the ban was within M's discretion and the actual duration not entirely beyond reasonable interpretation of the law, courts may come to the opposite conclusion, as proceedings under the AHG are not meant to overturn executive (or judicial) decisions just because there would have been an alternative outcome possible within the range of justifiable deliberations. Liability under the AHG requires fault attributable to the State.

BELGIUM

This sixth case allows us to recall that the State may be held liable for adopting or not adopting regulations. First of all, liability may be incurred when a regulatory act violates a legal act or the Constitution (for example, a Royal Decree violating the constitutional principle of equality of citizens).

Summary

INTRODUCTION

OVERVIEW

The application of private law rules against the State or, in more precise terms, public administrations, is historically an issue widely debated in Italian law.

This topic can be read along the lines of two dichotomies, that is between civil law and administrative law, on the one hand, and between the jurisdiction of ordinary courts and the jurisdiction of administrative courts, on the other.

With reference to the former, at the end of the nineteenth century, the legal literature was divided between the thesis concerning the applicability of the rules of private law to public administrations and the opposite reconstruction according to which the logic of private law was not suited to solve the problems of administrative activities, including those arising from participation in an illegal activity by a public administration.

The application of ius priva torum sprang from the idea, prevalent at that time, of the supremacy of the civil code. On the other hand, it was precisely the wider range of legal relations of public administrations that induced the idea of dismissing the centrality of the Civil Code and of its ability to provide exhaustive answers to the needs of justice originating from society.

With the aim of avoiding the possible creation of spheres of privilege or immunity for various public administrations, the application of the general rules of private law was advanced as a solution. Still to this day however, we have to admit that the issues concerning which rules to apply in such situations has not been fully resolved.

The nature of the general clause of art 2043 of the Civil Code (CC) is generally agreed upon and therefore attempts to establish the liability of the public administration beyond the boundaries of the Civil Code have not been successful. Nevertheless, the fact that the Italian legal system is based on the distinction, unknown in most other legal systems, between diritti soggettivi (‘legal rights’ which are vested rights typically applicable to juridical relations between individuals) and interessi legittimi (‘legitimate interests’, ie the typical legal protection granted to each citizen against the public administration) blocked, until 1999, full protection against the public administration.

Summary

INTRODUCTION

OVERVIEW

An initial word about terminology. ‘Public authority liability’ is not the term that would be used in the United States to describe the rules governing liability of public entities. Instead, the almost universal terminology is ‘governmental liability’ or ‘governmental immunity’. One popular treatise does employ the term ‘public entities officers and employees’ liability, although it also uses ‘governmental entities’ liability when focused on the liability of those entities apart from their employees and officials.

Public authority liability in the United States, because of its federal system, is divided between states, which are co-equal sovereigns, and the United States. Federal law addresses the liability of the federal government and its employees, while state law governs the liability of individual states and their employees. One qualification to the above statement of source of law is that federal constitutional provisions can be the basis for liability of state employees and in some instances the basis for injunctive relief as well.

Although the traditional blanket immunity for sovereign entities has long since been abrogated, governmental entities and officials retain a large amount of freedom from tort liability, particularly with regard to ‘discretionary’ decisions made in the course of governing. This area of the law is dominated by statutes – with the Federal Tort Claims Act (FTCA) governing federal liability and virtually every state having its own counterpart. Public authority liability thus involves adoption of universal principles of private tort law, along with modifications – oft en in the form of limitations on the liability of public authorities – contained in the FTCA.

Pursuant to the FTCA, the federal government may be liable for actions in its sphere, including regulatory efforts. Similarly, state governments (and substate governmental units) may be liable for actions in their sphere, including regulatory actions.

With 51 independent state jurisdictions, there is considerable variation that exists in the law governing liability of public entities and public employees.

Summary

INTRODUCTION

OVERVIEW

The Dutch doctrine of public authority liability is rather complex, covering both public and civil law, as well as procedural and substantive law. The civil component is mainly based on the general civil tort clause of art 6:162 of the Dutch Civil Code (Burgerlijk Wetboek) (hereaft er: CC). In legislation there is no specific legal regime for public authority liability as such. However, in case law tailored rules have been developed in order to adequately deal with the special position of public authorities.

A specific set of norms of good governance (algemene beginselen van behoorlijk bestuur), which public authorities have to comply with, has been developed. A breach of one of these norms can lead to liability of a public authority for unlawful conduct, whereas such conduct would not have been unlawful for a company or a citizen. Then again, the reverse situation is also possible: a State's conduct can be regarded lawful, whereas it would be considered unlawful if it concerned the conduct of a private party. Since the State looks after the public interest, within the framework provided by the Constitution and the laws, one can argue that the basic assumption is that State conduct is lawful conduct. The State has (to some extent) discretionary power in order to achieve these goals. Furthermore, damages paid by public authorities are paid from the public means, which can be a restraining factor in granting damages. The doctrine of public authority liability is, and has always been, a balancing act between the State's and society's interests on the one hand and those of individuals on the other hand.

Public authority liability can be invoked with regard to the full range of conduct of public authorities. It can concern unlawful acts of administration, regulations and judgments. Conduct that is regarded as lawful but disproportionately affects specific groups in society can fall within the scope of the tort regime as well – provided that the damage is not properly compensated for by the public authorities. Liability for such lawful conduct is based on the principle of égalité des charges publiques.

Summary

INTRODUCTION

OVERVIEW

The French law of administrative liability is based upon the general principle that a claimant may gain damages for the fault of a public body which has caused loss. This is supplemented by a well-developed doctrine of no-fault liability. In terms of fault liability, the notion of a faute de service is a crucial concept. It both demarcates the circumstances in which the state, or another public authority, may be liable for the actions of its servants1 and provides the contours of wrongful behaviour.

The fundamentals of French responsabilité administrative are to be found in the rich case law of the administrative courts. Although it might seem surprising to refer to case law within a legal system which is premised upon the predominance of droit écrit, French droit administratif is of course a jurisprudential system par excellence.

Public authority liability claims fall within the purview of the administrative courts with some limited exceptions – see below.

HISTORICAL EVOLUTION

In French law, as in other legal systems, there has been a gradual evolution of public authority liability (responsabilité administrative) over time to the broader position in the present day. The initial historical approach was enshrined in the maxim the ‘le Roi ne peut mal faire’ whereby the monarch benefited from a quasi-immunity (irresponsabilité) throughout the pre-revolutionary ancien régime. Partial erosions of that immunity occurred immediately after the 18th century Revolution but during the 19th century the quasi immunity of civil servants was enshrined in the Constitutions since any legal action against a civil servant required the prior authorisation of the Conseil d'Etat which occurred only once. As far as the liability of public authorities themselves was concerned, it developed in a piecemeal way where contractual liability was at stake or if specific statutes provided for it (such as public works liability, Loi du 28 pluviose an VIII).

Summary

INTRODUCTION

OVERVIEW

In Switzerland, we have to distinguish between two normative levels. On the regional level, each of the 26 cantons has its own system of State liability. On the national level, the Swiss Confederation has its own legislation. In the following, we will focus to a large extent on the liability of the Confederation and make only sporadic allusions to cantonal law.

The main text on federal State liability is the State Liability Act from 1958 (FRA). In addition to this text, various other Acts contain norms on the liability of the Confederation. The Federal Act on Assistance to Victims of Criminal Offences (FAACO) guarantees damages, tort moral and other forms of help to victims of physical and psychological harm or of attacks on their sexual integrity. If the tortfeasor is not able to provide the victim with such aid, it falls to the cantons or the Confederation to step in. The Military Act imposes upon the federal State liability for damage caused to third persons by members of the army or by troops (art 135 FAAMA).

Certain other Acts establish the liability of the Confederation not as a State, but as the keeper of private enterprises. According to the Railway Act, the keeper (détenteur/Inhaber/titolare dell'impresa) of the enterprise is liable for damage which is the result of a characteristic risk of the enterprise (art 40b FAR). As the Confederation is the exclusive shareholder of (by far) the most important railway company (Chemins de fer fédéraux/Schweizerische Bundesbahnen), it is indirectly the main addressee of this Act. A comparable solution has been adopted for electric power installations. According to the Federal Act on Electric Power, the keeper is liable for physical harm caused by the installation unless he proves that the damage was due to vis major, fault or negligence of third persons or grave negligence of the victim (art 27 FAE). As the cantons and communes are largely involved in the running of electric power installations, they are at least economically concerned by this Act.

Summary

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).

Intersentia

Refine listing

Refine listing

Actions for selected content:

Save Search

7719 results in Intersentia

Summary

Summary

Summary

Summary

Summary

The Liability of Public Authorities in Comparative Perspective

Summary

Summary

Summary

Summary

Summary

Summary

Summary

Summary

Summary

Summary

Summary

Summary