Administrative responsibility

In French right, the administrative responsibility is the obligation for the administration to make good the damage caused by its activity or that of its agents.

The responsibility for the administration can be committed for all the activities of the administration but obeys a mode different from that of the civil law.

For the contractual liability, to see the article Public service contract.

Public irresponsibility with the generalized administrative responsibility

Until the end of the XIXe century the principle of the irresponsibility of the public power prohibited straight to repair. The only possibility was the Equitable relief i.e. the call to the good will of the leaders. To the end of XIXe, beginning of the XXe century several reversals of jurisprudence put an end in this state right. February 1st, 1873, the court of the conflicts by the Arrêt Blanco recognizes the responsibility for the public people (Agnes Blanco reversed by a tip truck). February 27th, 1903, the Council of State by the stop wife Zimmermann recognizes a damage related to the decisions of police force. May 12th, 1903, the Council of State by the stop Berre grants damages to a civil servant wrongly laid off.

The obligation to repair thus ratified is not carried out according to the rules of the civil law, it has its special rules which today are more and more under the influence of the European Droit, which, indirectly reintroduced the principles common lawyers of the Anglo-Saxon Droit.

General terms of the right to repair

The existence of a damage

The administrative responsibility is repairing and not sanctionnatrice. For example, the stop of December 27th, 2001 pronounced by MT of Besancon. French civils servant having cotisé in Africa saw their retirement decreasing following a devaluation of CFA franc, in certain bodies of the compensations were envisaged, in others not. The court, noting the damage, granted a compensation. It is not thus a question of sanctioning a fault, but of making good a damage well. The European Court of the human rights division the same approach (stop editions Periscope/France of the CEDH on March 26th, 1992).

To open right to repair the damage must be certain but not necessarily current, the future damage when it is known that it will occur is also compensated. However, the possible damage, as the assistance which to his parents a child mortally wounded in an accident could have brought, is not certain.

The Loss of a serious chance, forgotten medical examination, convocation not-arrival…, opens right to repair.

The material losses are easiest to characterize: damage caused with the movable or real goods, physical attacks with the people.

The moral wrongs are more complex:

of a psychological or moral nature, reached with the reputation or the honor, attacks with human dignity (harassing).
physical suffering or pretium doloris following physical accident or surgical operation.
esthetic damage i.e. embarrassment or regrets tested by a person with the sight or the thought of the attacks carried to its body harmony.
mental pain or pretium affectionis i.e. the damage of affection bound, for example with the loss of a expensive being.
turbid under the conditions of existence, i.e. all the nuisances which are not included in the preceding categories, for example school difficulties of child after accident.
attacks of any nature resulting from a seroconversion HIV (idem for the consequences of one exposure to asbestos, ESB etc).

In the second place can be repaired not only the damages undergone by the immediate victims of the detrimental fact, but also those reaching by rebound the indirect victims such as the husbands or wives of the broken person.

There exist still some cases of irresponsibility:

constraints of Town planning
birth of a child after IVG or operation of sterilization
birth of an handicapped child after failure of a amniocentèse (THIS March 14th, 1997 CHR Nice).

The relation of causality

The right to repair is open only if there exists a direct link of cause for purpose between the damage and the detrimental fact.

For example, the Préfet authorizes a detention of weapon and the owner of the weapon kills a person. If the authorization of detention of weapon intervenes very little of time before the crime the State can be condemned (the author will be to it him, obviously with penal).

He returns to the victim to show the direct link of cause for purpose. The Administration is exonerated completely from its responsibility when the damage is caused in whole or part by a foreign cause:

fault of the victim which was, for example alcoholic at the time of the accident
major force i.e. unforeseeable and irresistible external event.

Imputability of the detrimental fact

The moral person or physics whose the service or the work in the beginning depends on the damage sees charged the responsibility.

When a public service is organized jointly by several people repair can be required of one or with the other of the people subject to the action récursoire (in right, which makes it possible to the defendant to make a recourse against somebody) of this one.

Methods of repair

Principles of the evaluation

Repair is generally done in euros, the Réparation in kind is some time pronounced on a purely optional basis (so better does not like…).

A person should never be condemned to pay a sum which it does not owe.

The compensation for damage is integral, the victim should be neither impoverished nor enriched what is difficult to appreciate for the immaterial damages.

Elements of the compensation

In addition to the principal allowance are allocated additional allowances:

allowance equitably compensating for the contentious expenses exposed by the victim, in particular the lawyer fees (L 761-1 of the Code of administrative justice, art 6-1 {er} of the CEDH)
interest on arrears on the principal allowance calculated on the time of instruction, its interests can be capitalized (interests on the interests) according to articles 1153 and 1154 of the civil code
default interest if the Victime justifies of an abnormal delay to obtain the payment of the principal allowance (THIS March 2nd, 1962 Caucheteux and Desmonts ).

The capital making good a damage is not taxable.

Distinction of the responsibilities according to the operative event

The responsibility for fault

Concept of fault

A fault is a failure in the organization or the normal functioning of the public service. It can consist of a material fact or a legal document. It can be collective or ascribable with an individualized natural person. The abstention, the negligence, an omission, a delay, can constitute a fault. An illegality is always faulty (THIS 1973 Driancourt); but a tiny legal flaw is not inevitably constitutive of an illegality. The existence of a fault does not involve necessarily the administrative responsibility. The fault must always be proven but of the presumptions of fault can be instituted:

normal permissive waste of a work which results in exonerating the administration only if it shows that it normally maintained the work (THIS January 24th, 1990 university of Lille I )
defect organization of the hospital public service, example, grave disease contracted following a care running
defect of systematic monitoring, example a child drowns in a public swimming pool.

The gravity of the fault

A simple Faute makes it possible to engage the responsibility for the administration, for example a permit building delivered wrongly.

Responsibility for the administration and responsibility for its agents

When the damage is caused by the fault of an public agent, which must repair, administration or the agent?

Distinction service-connected fault and personal fault

The service-connected fault engages the responsibility for the Administration. The personal fault engages the responsibility for its author.

Laferrière gives a definition of it: “if the detrimental act is impersonal, if it an administrator more or less prone to error, there reveals is service-connected fault, if it reveals the man with his weaknesses, its passions, its imprudences, there is ascribable personal fault with the civil servant. ”

The personal fault is the detachable fault of the service or the function. A civil servant who makes acts of violence, sexual abuses, slandering or which is made guilty of nonassistance has anybody in danger is personally responsible.

Combination of the service-connected faults and personal

There can be office plurality of faults at the origin of the damage, some of service, the other detachable ones. For example, consistent service-connected fault in the closing of a post office before the official hour and personal fault of the agents which maltreated a user at the point to break the leg to him to make it leave (THIS February 3rd, 1911 Anguet ).

If the made fault is analyzed at the same time like a service-connected fault and a personal fault, there is office plurality of the responsibilities. For example, the fault of a mayor who had authorized the installation of a shooting range without taking any security measure so that a person had been wounded by a ball (THIS July 26th, 1918 husband Lemonnier ).

When there is fault not deprived of bond with the service, the victim can claim repair with the administration or with the agent, the condemned administration or agents can then exert an action récursoire.

All the actions récursoires come in front of the administrative court, for example, the dispute of a revenue order or a decision of the administration.

No fault

It never relates to the personal faults.

No fault is committed in two cases:

the responsibility for risk
the responsibility for rupture for the equality in front of the public offices.

The responsibility for risk

The responsibility for risk is committed in the event of thing or of dangerous activity involving a damage:

explosives magazine which explodes
dangerous methods like the liberal methods of rehabilitation, the mentally ills at exit of test, prisoners in permission of exit…

It is also committed with the profit of the occasional or voluntary collaborators of the Public service, for example, an accident at the time of a school exit accompanied by parents by pupil.

The responsibility for rupture for the equality in front of the public offices

This responsibility is implemented each time a private individual is victim of an abnormal damage, i.e. presenting an unquestionable character for gravity, and speciality resulting from situations or measurements by the effect of which certain members of the community “are sacrificed” to the General interest.

The responsibility for permanent damage for public works recovers the disadvantages of vicinity resulting from the execution of public works, either from the existence or the operation of public works. The raison d'être of this jurisprudence is that it is advisable to compensate the few people who suffer in the interest of a whole a special and serious damage related to these works (for example the proximity of a nuclear plant hiding place the landscape…).

The liability for the regular administrative decisions : the loads imposed by a individual Acte are compensated if this type of act causes a rupture of the equality in front of the public offices. For example, the refusal to grant the contest of the police force for the eviction of occupants without title of a housing, the refusal is justified legally by the need for the maintenance of the Law and order.

The responsibility for the State because of the laws or international conventions : the responsibility for the State can be recognized in the event of rupture of the equality in front of the public offices (THIS January 14th, 1938 company the Floweret , prohibition of the Gradine, (substitute of cream)) who causes to make weigh on this company an abnormal load (has to know, serious; because it undergoes of it a considerable commercial loss, and special; because it is the single company which exploited the product, from now on prohibited. The state must thus grant a compensation to him.

Special diets of responsibility

Many special diets of repair were instituted by the legislator:

mode of the damage caused by the assemblies and the gatherings of people (L 2216-3 CGCT, if a demonstration degenerates, the State compensates)
mode of the faults of the members of teaching, law of April 5th, 1937, the State compensates
damages resulting from obligatory vaccinations (L 10-1 CSP)
compensation for the people reached of post-transfusional AIDS, law of December 31st, 1991
compensation for the damage caused by the terrorist acts, law of September 9th, 1986 relating to the fight against terrorism.

The law “right of the patients” in progress envisages the compensation for the therapeutic risk, i.e. no fault, in particular in two cases, the diseases nosocomiales (infections contracted in hospital medium) and the diseases iatrogenic (related to the catch of drug).

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