Band 11, Heft 1 - Special Issue: Public Authorities and Tort Law: A Difficult Marriage?

This short foreword serves as an introduction to the present special issue of the Journal of European Tort Law, entitled ‘Public authorities and tort law: a difficult marriage?’.

Turning the spotlight on the historical evolution of public authority liability in Europe shows us a movement from immunity to liability of increasing extent but, at the same time, opposite tendencies can be observed as well. Public authority liability evolves in waves, not always going in the same direction and, more than once, recurring to old solutions. These motions are partway prompted by policy considerations, interrelated with the special position of the state. This paper aims to set the right tone for answering the main question of the Ius Commune Workshop, entitled ‘Public Authorities and Tort Law: a Difficult Marriage?’. Using a comparative perspective, this paper sets out to illustrate how policy orientation has an impact on public authority liability in Europe without giving a constant and lasting direction towards either expanding or limiting this liability.

Extracontractual liability law is no exception to the general trend of instrumentalisation of private law. It is increasingly being used to pursue goals other than its primary aim of compensation. This instrumentalisation is a dual phenomenon that has developed both out of top-down and bottom-up impulses. Although specific questions may arise for each of these two movements, they encounter a common limit. On a fundamental level, the instrumentalisation is restricted by extracontractual liability law’s primary compensatory function. Other functions, such as enforcement (of rights) or prevention, are grafted onto this primary function and can only be pursued to the extent that they are compatible with it. It relates to the tension created by pursuing public goals through extracontractual liability law as an essentially private law instrument. Attention is needed not to overstretch extracontractual liability law’s prerequisites, which are coherent with its private law embedding. It would turn extracontractual liability law into a dangerous passe-partout. Besides stretching the existing prerequisites, one may also consider alternative instruments for pursuing non-compensatory goals, such as preventive actions. Given the ubiquitous occurrence of the phenomenon, the present contribution will start from Belgian and Dutch law, although the conclusions may reach beyond these legal systems.

This contribution deals with the wrongful behaviour of public authorities, in this case in particular the Belgian State, and delves into a challenge that the multi-levelled legal order poses for the national tort system. It inquires how the violation of an international treaty relates to liability in the national legal system. More specifically, the author examines if it is necessary, when dealing with state liability, to limit the concept of fault to the infringements of international treaties with direct effect, excluding the violation of those without such effect.

Mass harm events pose liability challenges for public authorities that may be difficult to resolve via tort. A State can use statutory and non-statutory compensation funds to manage and avert its liability to pay damages to individual citizen victims. Compensation funds eliminate or minimise the traditional concept of fault and often replace it with a no-fault structure, ideally enabling swift payment of compensation to individual victims via an administrative scheme. The Irish government has repeatedly used this kind of solution for groups including victims of contaminated blood products, individuals who suffered abuse as children in State-sanctioned institutions, victims of unnecessary obstetric procedures and other public health failings. This approach has been necessary because multi-party actions are generally unavailable in Ireland, and because of entrenched access to justice problems. The evidence of their use reveals a haphazard pattern and inconsistent treatment of victims. Irish funds have aimed to compensate both the pecuniary and non-pecuniary losses of victims, often in a mixed way. The Irish approach is unsatisfactory because of the trend towards low and homogenised levels of compensation, poor procedure and the lack of other realistic redress alternatives. Overall, these compensation funds have been predominantly advantageous for the State from a cost and liability minimisation perspective. The situation could be improved if future compensation funds were properly designed and supervised, supported by appropriate legislation, and cognisant of the surrounding legal landscape and compensation fund jurisprudence from other European jurisdictions.

When it comes to environmental damage, a basic tenet is that the polluter should pay. Nonetheless, public authorities regularly incur clean-up costs. Environmental damage often transcends the individual polluter, affecting a plurality of personal and/or public goods. Its diffuse extent and complex nature make environmental protection a collective interest. Thus, it comes as no surprise that public authorities can be legally obliged to take preventive and remedial measures against environmental damage. However, when public authorities act on such a legal obligation, the question arises: whose burden are the costs of the measures taken? The emergence of the polluter pays principle indicates a preference to allocate the costs to those who elicit the legal obligation. What role has tort law to play in this regard? Even though it is certain that public authorities are not exempt from tortious liability themselves, doubts exist whether they can claim in tort as wronged parties. Public authorities represent society and embody the public interest. Tort law, however, seems to mainly focus on private interests. Nevertheless, the Belgian transposition of the European Environmental Liability Directive, which obliges the polluter to pay for the prevention and remedial measures, allows for a claim in tort. This contribution inquires whether such a claim allows for the recovery of all costs mentioned in the directive, even general expenses. From a comparative law perspective it examines how the polluter pays principle, advocated for on the international legal scene, is to be imbedded in national tort law. In particular, it examines whether national tort law acts as a straitjacket for the principle, or whether the principle might, conversely, serve as a crowbar to break open this field of law to allow compensation for harms that traditionally would not be eligible for damages. It finds the principle has a harmonising influence but is not absolute.