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STATE LIABILITY IN TORT – LAWYER

What does State Liability in Tort mean?

State liability in tort means the obligation of the State or of Legal Persons Governed by Public Law (N.P.D.D.) to make good, usually in the form of monetary compensation, the harmful acts caused by the unlawful acts or omissions of their organs, under the specific terms and conditions of Articles 105 and 106 of the Introductory Law to the Civil Code (EisNAK).

Pursuant to Article 105 of the Introductory Law to the Civil Code: “For unlawful acts or omissions of the organs of the State in the exercise of the public authority entrusted to them, the State shall be liable for damages, unless the act or omission was carried out in breach of a provision existing for the sake of the general interest. Together with the State, the responsible person shall also be jointly and severally liable, subject to the special provisions on ministerial liability”, whereas pursuant to Article 106 of the Introductory Law to the Civil Code: “The provisions of the two preceding articles shall also apply to the liability of municipalities, communities or other legal persons governed by public law for acts or omissions of the organs in their service”.

What is the State’s Liability in Tort in Environmental Matters?

State liability in tort is one of the fundamental remedial institutions of the law. As has been characteristically stated: the principle of State liability and the principle of legality are the two symmetrical pillars of the system of safeguards for those subject to administrative authority. Civil liability arising, for instance, from environmental damage consists in the obligation to make good the damage suffered by private legal goods (life, bodily integrity, property, ownership) due to an environmental infringement. By contrast, the concept of environmental liability includes the obligation to remedy the damage suffered by the environment as such. When a person subject to administration suffers damage from unlawful acts or omissions of administrative organs in the exercise of the public authority assigned to them, that person is entitled to compensation under Articles 105 and 106 EisNAK by bringing an action for damages before the administrative courts.

Consequently, liability for damage caused by any public legal person through the diminution of the value of environmental goods is governed by administrative law where the adverse alteration of legal goods stems from damage in the context of sovereign administration. Furthermore, it has been argued that the unlawful and harmful use of technology (e.g. polluting industrial activity), combined with deficient exercise of the State’s supervisory function, triggers the operation of the institution of civil liability.

Persons subject to administration who turn to the courts usually seek the prevention or removal, for instance, of an environmental infringement, either by lodging an application for annulment or a substantive petition, or through the mechanism of pursuing compensation for lawful acts of the administration, as in matters of protection of the residential environment, with compensation of property due to town-planning expropriation pursuant to Article 17(2) of the Constitution for the creation of common-use spaces; in matters of protection of the cultural environment, with compensation pursuant to Article 24(6) of the Constitution to ensure the perpetual protection of monuments; and in matters of protection of the natural environment, with compensation pursuant to Article 22 of Law 1650/1986 for the safeguarding of nature protection areas or zones.

By contrast, lawsuits in which persons subject to administration seek compensation for the unlawful failure of the competent State authorities to take, for instance, appropriate measures for the conservation of the environment, where such failure results in damage to health or property, are very rare, perhaps because they cannot adequately address the issues raised in cases of environmental damage.

What are the conditions of the State’s liability in tort?

  1. Act, omission or material action: The State’s obligation to pay compensation may arise from an unlawful act, omission or material action of its organs. In principle, the term “act” denotes not only enforceable administrative acts of positive or negative content, but also non-enforceable administrative acts, such as opinions, internal-order measures, enforcement acts, etc. Moreover, the State’s liability in tort may also arise from the omission of a legally owed action, as well as from any kind of omissions of the State’s organs in the issuance of administrative acts or in the performance of administrative actions.
  2. Organ of the State or of a Legal Person Governed by Public Law: For the State’s liability in tort to be established, the act, omission or material action must originate from an organ of the State or of a Legal Person Governed by Public Law. Organs of the State are understood to be the organs of executive power in the entirety of their activity. Likewise, the concept of Article 105 EisNAK also includes independent administrative authorities (the National Council for Radio and Television, the Greek Ombudsman, etc.), as well as bipartite legal persons, insofar as they exercise public authority (Bank of Greece, etc.). Lastly, it is worth noting that State liability in tort also exists where the appointment of a single-member administrative organ or the constitution of a collegiate administrative organ is for some reason vitiated by illegality.
  3. Exercise of public authority: A core element for affirming State liability in tort is that the acts and omissions of the State’s organs must fall within the framework of the exercise of public authority. For this reason, it must be stressed that Articles 105 and 106 EisNAK do not apply where the State’s organs act within legal relations of private law, that is, where they act as fiscus under the rules of private law. An indispensable element in every case is that there be a connection between the exercise of public authority and the harmful act.
  4. Existence of illegality: In addition, the unlawful character of the harmful act, omission or material action of the State’s organ must be present. Substantively, the provision of Article 105 EisNAK lays down a blank rule of law, that is, it does not specify when illegality exists, but refers to the entire body of legal rules of the legal order. Thus, illegality may consist in contradiction with the content of any rule of law, whether the contradiction is with the Constitution, with parliamentary constituent acts, with European law, with regulatory administrative acts, with the general principles of administrative law, etc.
  5. Causation of Damage: An indispensable condition for establishing State liability in tort is the causation of damage to a private individual by an unlawful act, omission or material action of the State’s organs. This damage may be actual loss or lost profits, material or moral damage, while the case of mental anguish for the killing of a person is also covered.
  6. Causal Link: According to the prevailing view, a causal link between the illegality of the act, omission or material action and the damage exists where such conduct was, in the ordinary course of events and according to the teachings of common experience, capable of causing the damage without the intervention of any extraordinary circumstance. Thus, it has been held that there is a causal link between an oil spill and the destruction of fish in a fish farm, provided that their destruction would in any event have occurred as a consequence of their infection by a virus by which they had been infected before the spill. (Council of State 1893/2000).

Provided that all the above conditions establishing the State’s liability in tort are shown to be met, the private individual is entitled to bring the legal remedy of an action under Articles 105 and 106 EisNAK, the object of which is the satisfaction of a monetary claim arising from a public-law legal relationship and which is directed against the State or another Legal Person Governed by Public Law.

FREQUENTLY ASKED QUESTIONS ON STATE LIABILITY IN TORT

1. When am I entitled to compensation from the State?

You are entitled to compensation when you suffer damage from an unlawful act, omission or material action of an organ of the State or of an N.P.D.D. in the exercise of public authority, pursuant to Articles 105 and 106 of the Introductory Law to the Civil Code. Five conditions must be cumulatively satisfied: unlawful conduct of an organ, exercise of public authority, the existence of damage (actual loss, lost profits or moral damage), a causal link between the illegality and the damage, and that the conduct must not have been carried out in breach of a provision existing for the sake of the general interest. Typical examples: damage from delayed or erroneous issuance of permits, hospital negligence in a public hospital, damage from defective maintenance of the road network, unlawful expropriations.

2. What can I do to claim compensation?

The legal remedy is an action for damages against the State or the N.P.D.D., brought before the administrative courts. By means of this action, you seek monetary redress for both the actual loss (real expenses, destruction of property) and the lost profits, while you may also join a claim for pecuniary compensation for moral damage or mental anguish in the event of the death of a relative. In parallel, if the harmful act is an enforceable administrative act, an application for annulment or a substantive petition may be filed, so that the illegality is also formally removed, an element which significantly reinforces the action for damages.

3. Within what time must I bring the action?

Claims against the State and N.P.D.D. are, as a rule, subject to a five-year statute of limitations, which begins at the end of the year in which the claim arose and became judicially enforceable. In certain cases, such as claims for emoluments or for damage arising from more specific relationships, different, shorter time limits apply. The hearing of the action before the Administrative Court of First Instance usually lasts two to four years, while in the event of an appeal or cassation before the Council of State the overall time may be extended. The timely gathering of evidence is decisive, as the passage of time makes proof more difficult.

4. Which court has jurisdiction over my action?

The competent court is the Administrative Court of First Instance of the region where the authority that caused the damage is seated or where the harmful consequences occurred. The action is heard by a three-member bench, while certain cases of lesser value are heard by a single-member bench. Against the first-instance judgment, an appeal may be lodged with the Administrative Court of Appeals and subsequently an application for cassation with the Council of State, provided that legal issues of broader interest are raised. If the matter concerns a dispute arising from an administrative contract or a more specific case, jurisdiction may lie with the Administrative Court of Appeals at first and last instance. A correct assessment of jurisdiction from the outset is critical to avoid dismissal.

5. What documents and evidence do I need?

Full documentation of both the illegality and the damage is required. Typically the following are gathered: the contested administrative act or documents proving the omission of the legally owed action, correspondence with the authority, applications and replies, any annulment judgments of courts, medical records or expert reports in cases of bodily injury, invoices and receipts for material damage, financial data on lost profits, photographs, witnesses. In environmental or town-planning cases, a technical report by an engineer or specialist scientist is required. The overall evidentiary strategy is planned from the outset, since the quantification of the damage must be specific and reasoned.

6. What role does the lawyer play in my case?

The lawyer first assesses whether the conditions of Articles 105 and 106 EisNAK are met and realistically estimates the chances of success against the Legal Council of the State, which represents the State. The lawyer drafts the action with a precise specification of the illegality, the causal link and the amount of damage, files memoranda, represents the client at the hearing and handles any parallel legal remedies (application for annulment, suspension). The firm’s experience in cases of State liability in tort, combined with specialisation in administrative law, ensures a comprehensive strategy at all levels of jurisdiction, up to and including the Council of State or the European Court of Human Rights (ECHR), where required.


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