The Principles Governing Public Authority Liability in Poland

Before 1989, Polish courts in some cases affirmed the liability of the State on the basis of existing legislative provisions. After 1989, the Constitution admits administrative liability in very general terms, because everyone shall have the right to be awarded damages for any harm done by administrative action contrary to the law. The more detailed provisions of the Civil Code implement such general principle. More generally, the liability of administrative authorities is regarded as being subject to private law standards. However, in some cases illegality per se will not suffice for liability. This is the case, in particular, for administrative acts that are characterized by real discretion. Moreover, administrative procedures are regulated by parliamentary legislation. Another particular feature of Polish law is that, to prove the unlawfulness of the action taken by administrative authorities, on both procedural and substantive grounds, claimants must bring an action before administrative courts.

The System of Public Authority Liability in Germany

The foundations of the present law in Germany can be succinctly stated as follows. First, a provision on public authority liability may be found in the constitution (the Grundgesetz) as well as in the Civil Code, the scope and relationship of which remain to be determined. Second, as a general rule, primary legal protection enjoys priority over secondary legal protection, i.e. claimants must bring a prior administrative appeal or complaint before being entitled to damages. Third, there is a rich variety of rules governing administrative liability: old and new, general and sector-specific, procedural and substantive. Although such rules are generally based on the existence of illegality, exceptionally lawful administrative actions may give rise to compensation.

Concluding Remarks: Towards Convergence?

This chapter charts convergence and divergences in the approaches to liability from procedurally illegal decisions or omissions. It focuses on three aspects relevant in assessing if, and to what extent, the jurisdictions analysed are converging beyond the widespread acceptance of governmental liability for illegal decisions or omissions. The first aspect investigated is whether annulment or other specific administrative law remedies must be sought before (or along with) damages. The answer more often than not turns around the institutional question whether or not the same court is competent for both sets of remedies. A second aspect is whether additional requirements, besides illegality, are needed for a successful damages claim. This might include a subjective element or a more or less objectivized reference to the gravity of the breach. Finally, the actual causal link between procedural breaches and potential damages might be questioned, with courts possibly resorting to different techniques to exclude or mitigate governmental liability. The analysis shows that the different outcomes in terms of liability are such not by any accident but because of path dependency due to institutional choices (general courts versus specialized administrative courts), due to the preference courts may or may not have for remedies other than damages and, finally, due to the deference or lack thereof paid by courts to the discretion left to the administration.

France and the United Kingdom

This chapter compares the respective answers of the English and French systems of administrative liability within a wider comparative study that focuses on outcomes. The chapter is in three parts. It first looks briefly at the constitutional and cultural framework in which the rules operate. In France, we find a separate system of administrative courts which handle all questions relating to the administration, including liability, and which have built a sophisticated public law system of non-contractual liability. In the UK, where all questions of liability go to the ‘ordinary’ civil courts, the law is uncodified, and there are gaps in the liability principles. The chapter then looks at basic principles. In France, where the dominant principle is faute de service public, the courts also acknowledge a no-fault principle. In the UK, the strongest form of redress is strict liability for assault, battery, and false imprisonment, but the dominant principle is negligence, and a public authority must owe a duty of care to the claimant to be held liable. In the final part, the chapter answers specific liability questions, making the point that it is often hard to get redress for economic loss. Claimants often fail to get redress for wrongful failures to grant licences or exercise a discretion or statutory power.

Hungary, Poland, and Romania

This chapter compares the respective answers of the Hungarian, Polish, and Romanian systems of administrative liability. It begins by noting that after 1989, all such countries modified their constitutions, which now regulate government liability in tort differently from the past. Not only do they admit government liability, but they also lay down general principles about it, although they variably construct the right to compensation. There are, instead, some relevant differences in their rules concerning administrative procedure. In particular, unlike Hungary and Poland, Romania has no such thing as a procedural code. However, the crucial empirical question is whether the same, or similar solutions are given to the issues raised by the hypothetical cases. Despite the fact that the European Convention on Human Rights influences the three legal systems, not always is the disregard of procedural constraints, such as prior notice and hearing, in itself sufficient to make administrative action unlawful and, thus, to give rise to liability. Sometimes, claimants fail to get redress for wrongful failures to grant licences or exercise a discretion in the issuing of general or individual orders. The reason is not only that administrative authorities enjoy discretionary powers, but also that sometimes the courts seem reluctant to abandon the idea that those who govern cannot be held liable.

Constitutional Foundations of Government Liability in Spain

In Spain, the Civil Code has long been the basis of the liability of administrative authorities, and the Constitution has reaffirmed it by way of a general principle of damages liability. The Constitution has also confirmed the importance attached to the legislative regulation of administrative procedure, especially after the Act of 1958, subsequently amended in 1992 and 2015. A claim may, therefore, more easily than elsewhere, be based on the lack of procedural fairness. Coherently with traditional views of administrative liability, the constitutional provision admits it whenever harm is a consequence of actions taken in the discharge of public functions or services. Another fundamental feature of the Spanish legal system is that there is an ‘objective’ conception of liability, in the sense that it is not only based on misconduct. Procedurally, a specific administrative procedure must be carried out. After its conclusion, a claim can be brought before the specialized judicial branch, the jurisdiction ‘contencioso-administrativa’.

Public Authority Liability in the United Kingdom

Although the UK has not what would be recognized by other legal systems as a general principle of damages liability concerning public authorities, there is no general shield of immunity for them. Nor is there a separate, or dedicated, system of courts that deals with administrative liability. Finally, there is no such thing as a codification of administrative procedure. However, the rules of administrative procedure can be found not only in common law (the rules of ‘natural justice’ or ‘fairness’, i.e. the rule against bias and audi alteram partem) and in statute law, but also in external sources, such as the European Convention on Human Rights, in particular, in Article 6. The latter has obviously influenced case law under the Human Rights Act, notably through the requirement that UK courts take into account the jurisprudence of the European Court of Human Rights. Considered as a whole, these sources set out standards of procedural fairness and propriety which must be respected by public authorities.

On the ‘Common Core of European Administrative Laws’ Methodology (and European Tort Laws)

The present chapter focuses on the methodology underlying the ‘Common Core of European Administrative Laws’ project in general, and its first research output on public authorities’ liability in particular. From this perspective, the chapter first introduces the current state of European tort law and the scholarly initiatives focusing on it, before presenting the basic outlines and distinctive features of the ‘Common Core’ approach and the rationale behind the three-level responses, which is one of the distinctive features of the whole project. The chapter thus sheds light on its potential contribution to European debates on public liability and comparative tort law.

Public Authority Liability in Hungary

In Hungary, government liability in tort was affected by the constitutional change that occurred after 1989. A new provision clearly stating government liability replaced the old one. A public body that acts unlawfully and causes damages to others is thus liable in tort, just like any private individual would be. Moreover, judicial review is no longer conceived as an extraordinary remedy. However, substantively, the basic premise is not that illegality in itself will give rise to damages liability, especially when the administration exercises discretionary powers. Moreover, the claimant must bring an administrative appeal before a judicial remedy is available. These appeals have been partially reshaped by the new Administrative Procedure Act (2018), which is important also for the procedural requirements it sets out with regard to the discharge of administrative functions and powers. Both EU law and the European Convention on Human Rights are increasingly relevant in this respect.

The Liability of Public Administration

At the end of the nineteenth century, Italian courts constructed government liability in narrow terms, excluding it whenever government took acts of imperium. Article 28 of the Constitution deviates from that line of cases, because it lays down two principles: first, that the officials and employees of public bodies are directly liable for acts committed in violation of rights and, second, that in such cases civil liability extends to public bodies. Concretely, the standard governing the non-contractual liability of public bodies is influenced by the rules of the Civil Code. Liability can thus be based on the existence of a breach of existing legal rules, including procedural constraints on the exercise of administrative powers. For example, the unlawful issuing of a building permit gives rise to liability. However, when public authorities exercise real discretion, issues of liability will be treated differently. And, unlike other legal systems, such issues often fall within the competence of administrative courts.