LexInter | November 20, 2006 | 0 Comments


Responsibility of public authorities

The principle of the responsibility of public power has gradually replaced the adage that the sovereign cannot do wrong. From this adage arose a principle of State irresponsibility which is the expression of sovereignty. Under the action of the legislator, the administrative judge and the doctrine, the principle of responsibility has developed, without the idea of ​​origin losing all force. This is particularly the case for liability for damage caused by law and by acts of government.

The tradition of irresponsibility first found exceptions only in the case of contractual liability, but public services will be a privileged field for the development of irresponsibility clauses or in any case of limitation of liability.

Irresponsibility has been ruled out by legislative interventions, such as the law of 28 Pluviôse Year VIII for damage to public works.

The idea has persisted that when the actions have been carried out in the general interest, the administration should be subject to a special regime.

State responsibility was enshrined outside these exceptions by the Blanco judgment.  However, this responsibility is subject to a specific regime. The judgment affirms the need to apply a special regime, justified by the needs of the public service : the responsibility which may fall to the State for the fact of the public service cannot be governed by the principles which are established in the civil code for person-to-person relationships. In order to ensure these special rules, the competence to know this responsibility is reserved to the administrative jurisdiction. This is the principle of separation of powersin application of the law of August 16 and 24, 1790, which prohibits the courts from ” disturbing, in any way whatsoever, the operations of administrative bodies” .

The law of administrative liability, since the Blanco judgment  , has been built on an essentially jurisprudential basis, independently of civil law. The solutions identified by the administrative judge are not radically different from those identified by the judicial judge, and the civil code or the principles on which it is based can in many cases be applied for administrative liability, as shown by the ten-year liability. builders.

If the main specificity of administrative law initially resided in the absence of a general and absolute character of the State’s responsibility, it was recognized more and more widely, including in the absence of fault, that this either in the field of risk or that of the breach of equality before public charges. This results in a regime in certain cases more favorable to victims than civil law, for example in matters of medical liability ( Ass. April 9, 1993, Bianchi , p. 127).

State liability action and the related claim for payment of damages are directed exclusively against the State Judicial Agent.

They are subject to the four-year prescription


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