Demoiselle Mimeur
LexInter | July 7, 2007 | 0 Comments

Demoiselle Mimeur


Having regard to the request and the supplementary memorandum presented for the young lady Mimeur, residing in Lusigny-sur-Ouche [Côte-d’Or], the said request and the said memorandum recorded at the Litigation Secretariat of the Council of State on July 28, 1947 and tending to the Council should annul a decision dated January 25, 1947 by which the Minister for the Armed Forces rejected the request for compensation addressed to him by the applicant for compensation for the damage she suffered as a result of the damage caused by a military truck at the building it owns in Lusigny s / Ouche; Considering the ordinance of July 31, 1945;
On the responsibility of the State: Considering that the damage for which the demoiselle Mimeur is requesting compensation was caused by a military truck whose driver, Mr. Dessertenne had lost control and which, violently hitting the applicant’s building, caused demolished a section of wall;
Considering that the decision dated January 25, 1947, by which the Minister of the Armed Forces refused the applicant any compensation, is based on the fact that the truck was, at the time of the accident, used by its driver “outside the service and for personal purposes “and that thus” the responsibility of the latter would be the only one likely to be sought for gross personal fault detachable from the execution of the service “;
Considering that it results from the investigation and in particular from the very declarations made by Mr. Dessertenne during the investigation by the gendarmerie that, when the accident occurred, Mr. Dessertenne, who had been given the task of delivering essence in Mâcon, was on the way back, but was following the national road n ° 470, which was not the direct route taken by him on the outward journey; that he had thus turned away from this last road only to go through Bligny-sur-Ouche, where his family was, that is to say for strictly personal ends;
Considering that it emerges from the documents in the file that, if, by deviating from his normal route for reasons beyond the interest of the service, Mr. Dessertenne used the State vehicle for purposes other than those which involved his assignment, the accident in question which occurred as a result of a vehicle which had been entrusted to its driver for the performance of a public service, cannot, in the circumstances of the case, be regarded as devoid of any link with service; that it follows from there that even though the fault committed by the Sieur Dessertenne would assume the character of
On the amount of compensation: Considering that the state of the investigation does not allow an assessment of the damage suffered by the applicant; that it should be returned to the Secretary of State for the Armed Forces [War], to be liquidated, in principal and interest, of the compensation to which it is entitled, subject to subrogation of the State in the rights which may have arisen for the benefit of the interested party, against the Sieur Dessertenne, because of this accident;

DECIDES: Article 1 – The above-mentioned decision of the Minister of the Armed Forces dated January 25, 1947 is annulled. Article 2 – The young lady Mimeur is referred to the Secretary of State for the Armed Forces [War] to proceed with the liquidation of the compensation to which she is entitled, on condition that she will subrogate the State in the rights that could be born for the benefit of the applicant against Mr. Dessertenne. Article 3 – This compensation will bear interest at the legal rate from the date of receipt of the request of the young lady Mimeur by the Minister of the Armed Forces. Article 4 – The costs are borne by the State.




Analysis by the Council of State

By the decision Dlle Mimeur, the Council of State admits that the responsibility of the administration can be engaged when the personal fault of the agent is not devoid of any link with the service.

When an agent of the administration commits a fault and causes prejudice to a citizen, he must repair his fault. But the administrative judge and the Conflict Tribunal have gradually admitted that the personal responsibility of the agents for the service faults they commit is replaced by the responsibility of the administration. In doing so, the judge pursues a concern for fairness to the extent that it would not be fair for an official to assume alone the consequences of errors that he commits in good faith in the service, but also an objective of efficiency since the risk would be great of seeing the spirit of initiative of officials completely destroyed if they knew they were constantly exposed to the risk of having to correct their professional errors. Moreover, it is in the interest of the citizens themselves to be able to ask the administration for compensation for faults committed by the agents, the latter generally being less solvent than the public authorities.

If this case law appears to be unstoppable in terms of professional misconduct, it draws its originality from the way in which it also applies to some of the misconduct of officials which are not misconduct of service and of which the Dlle Mimeur decision is the culmination.

According to this case law, the citizen is entitled to ask the administration for compensation for personal faults committed by officials not only when the damage suffered is due to a double fault, one, personal, of the agent, the ” other service (assumption of multiple faults), but also when only one fault has been committed but presents, on certain points, the aspects of a fault of service and on others the aspects of a personal fault (assumption of multiple responsibilities). By a decision by Dlle Quesnel of April 21, 1937 (p. 413), the Council of State had also admitted that a personal fault committed materially in the service could engage the responsibility of the administration.

This was not, however, the case with the fault committed by the Sieur Dessertenne, for which the Miss Mimeur sought compensation. Indeed, the Sieur Dessertenne had hit the wall of the latter’s house while he was driving a military vehicle, but had turned away from his normal route to visit his family. However the Council of State admitted that the responsibility of the administration could be engaged insofar as the fault, personal as it was, was not devoid of any link with the service.

The case of accidents occurring as a result of the use of firearms by agents of the security forces outside the service constitutes, together with the case of vehicles, another classic example of the application of this case law. This is how the State may be held liable for a fatal accident outside the service, due to the clumsy handling by an agent of his service weapon (CE, ass., October 26, 1973 , Sadoudi, p. 603). This solution can be explained in particular by the fact that officers have the obligation to keep their weapon at home. But this solution does not extend to the case where the weapon of the service has been used by the agent with criminal intent (CE, June 23, 1954, Dame Vve Litzler, p. 376).

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