Important Aspects for Triggering the Public Authorities’ Liability for the Issuance of Unlawful Administrative Documents

Daniela Gramaticescu
Daniela Gramaticescu

The liability of the public authority for the harm caused by unlawful unilateral administrative documents/actions is regulated under express legal provisions – Art. 8 para. 1 in conjunction with Art. 19 of Law 554/2004 -.

From a procedural perspective, this liability presupposes the initiation of an action for administrative patrimonial liability, an action based on civil tort liability, from which it nonetheless differs in several significant respects pursuant to the norms of administrative law, as follows:
1. this action stems from the authority of the public administration to issue documents in the regime of public authority (public law);
2. the patrimonial liability of the public administration is based on the presumption of the public authority’s fault in issuing the unlawful action or the unjustified refusal to resolve a claim related to a legitimate right or interest;
3. this type of action is usually adjudicated by administrative courts and is, in general, an accessory action to the direct action for the annulment of an administrative document or against the unjustified refusal of a public authority to resolve plaintiff’s claim related to a legitimate right or interest;
4. it is subject to a one-year statute of limitations.

The most important distinction between patrimonial and tort liability regulated by the generally applicable law is related to the requirement of fault – unnecessary or presumed – and that of the statute of limitations – 1 year, not 3 years-.

To summarize, it is important to note that, in accordance with the provisions regulating patrimonial administrative liability, the requirement of fault should not be met – liability is considered objective – or, it should be, at the most, presumed as met – the authority being the one who has the obligation to ensure the burden of proof necessary for reversing the presumption-. A special legislative case is present in the provisions regulating public procurement, where the objective nature of the authority’s liability for the harm caused by the illicit actions issued by such within the tender procedure  – absence of the requirement of fault – is set forth by the law and by the ECJ jurisprudence (which prohibits conditioning the authority’s liability for the documents issued in the proceeding conditional upon proof of the authority’s fault  – Commission vs. Portugal (Case C-275/03, the decision of October 14, 2004) and Strabag (Case C-314/09, Stadt Graz vs. Strabag AG et al.)).

Thus, in the field of patrimonial administrative liability, it is necessary to analyze the fulfillment of the requirements for establishing civil tort liability, with the particularities of administrative law:

– the requirement that an unlawful action was committed is met if the court established the unlawfulness of the harmful administrative document (procedurally speaking, this aspect also presupposes raising the positive effect of res judicata),
– the requirement of fault does not need to be met, given that it is an absolute or relative presumption (it is not necessary, in any situation, to prove the requirement of fault separately from the requirement of the unlawful action, represented by establishing the unlawfulness of an administrative document). From the more permissive perspective of the relative presumption, it is possible to analyze, if invoked, all the causes exempting from liability, as set forth in the civil code: force majeure, Act of God, action committed by a harmed person or action committed by a third party, the exercise of a right;
– the requirement of causality must be proven by plaintiff and analyzed together with the existence of other causes that allow exemption from liability (if the theory of fault, as relatively presumed, is accepted) or only of interruption of the causality relation,
– the requirement of harm must be proven by plaintiff with the observance of the general burden of proof requirements that operate in the field of civil tort liability.

The legitimate trust in the documents issued by the authority – a European principle applicable in the field – must be a permanent instrument of control in the analysis of the requirements for establishing the administrative liability of the authority for the harm caused by unlawful unilateral administrative documents issued by it.

Daniela Gramaticescu, Partner NNDKP

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