It is a fact that differences and legal disputes do not arise (only) among individuals: On the contrary, it is very likely for a legal dispute to arise between an individual and the Public sector. Things become more complicated there because the conditions under which the Public sector is liable and can be condemned to compensation are different, and the ways (legally) in which all the above can happen are also different.
1.What does Public sector’s liability mean?
When we say that “the Public sector is liable for compensation,” we simply mean that an entity/employee connected by an employment contract with the Public sector has caused damage to an individual through an act/omission/material action. And here lies the critical point: the liability we describe does not concern the case where an individual has entered into a contract with the Public sector and the State fails to fulfill its obligations = does not fulfill the contract because there we are talking about a completely different legal status, which we will see in the next text.
It is important to know that with the increase in privatizations, often the Public sector entrusts individuals with the execution of public works (e.g., assigning lawyers to issue pensions). In this case, precisely because the Public sector does not lose its authority regarding the work but simply transfers its exercise to another entity, it also has the responsibility for supervising the proper execution of the work. This means that in the event that the intermediary individual selected for the execution of the work causes damage to another during the execution, the Public sector may also be liable for compensating the victim if they suffer damage due to the execution of the work.
2.Which entities/employees of the Public sector does the liability cover?
An issue that often arises is whether the entity that caused damage to the individual is considered “public” or not. Therefore, in order for the landscape to be as clear as possible, we must mention that when the law states that the damage should come from an entity of the Public sector, the type of contract based on which the entity works for the Public sector is irrelevant = whether it has been permanently employed with a public law contract or works with a private law employment contract.
Thus, the scope of the provision includes members of the Government/ministers/the President of the Republic, etc. Additionally, the provision also mentions the liability of legal entities of public law, such as municipalities of first and second degree = the Municipalities and the Regions of Greece for the actions of their organs and employees.
Because the legislator has also assigned certain legal entities of private law to act with public authority (e.g., the anonymous company “Hellenic Exchanges S.A.” can impose sanctions on companies that do not comply with the terms of the Capital Market Commission for their participation in the Exchange). Therefore, when these legal entities operate as organs of the Public sector, they are responsible for their actions and omissions against individuals.
3.What are the general conditions for liability?
In order to better understand what is required for the government to be liable for compensation, we will simply mention the conditions, with some annotations where necessary. Thus, for the government to be liable, the following conditions must be met:
- It must involve an employee of the government or a legal entity of public law (as we saw above).
- There must have been an act/omission/material action (legally speaking).
- This act and its variations must be illegal = contrary to the content of any rule of law.
- The government, through this action, must have exercised public authority = not acting as a private entity engaging in business activity.
- Damage must have been caused to the individual (whether it is property/moral or even psychological pain in the case of a person’s death).
- There must be a causal link between the illegal act and the damage caused to the individual = one event logically connected to the other.
Although it may seem obvious, the above conditions must cumulatively/all together establish an obligation of the government to compensate the individual. A common objection raised by government agencies is that the victim did not take appropriate precautionary measures to avoid/restrict the damage = contributed to its creation/increase. Based on this, we can say that this is another ‘unwritten’ condition that must always be checked for its existence when a compensation lawsuit against the government is filed.
4.And when does the government not exercise public authority?
With the economic landscape constantly changing, the government no longer solely fulfills the role of a state exercising sovereign authority over its citizens by imposing various obligations of all kinds, e.g., fines, taxes, etc. Instead, it actively participates in the economic life in various forms. Thus, the government is not liable for compensation when:
- It operates as a business = as a shareholder of private companies, the actions of which serve a public interest.
- In order for the government’s action to be considered private, it must own 50%+1 shares of the company in which it operates.
- Whether the government operates as a business or not is judged based on the purpose of the company’s action in which it is a shareholder.
- For example, the Water Supply and Sewage Company (EYDAP) has a predominantly public purpose (providing water to citizens as a vital good that cannot be commodified).
- Conversely, the Hellenic Republic Asset Development Fund (TAIPED) deals exclusively with the exploitation = sale/leasing of the government’s private property to potential investors.
- It is not excluded that the government may exercise public authority on occasion = if this is not its main purpose in the specific case.
- In this case, again, it is considered to operate on private terms and therefore cannot be sued for illegal action.
Because each case is difficult, as the real circumstances are different, we must always consider how the government acted in the specific case (if it complied with the necessary rules required/made sure not to omit something crucial for its action) and the criteria by which its action was taken (whether it operated on private terms for its property or if its action concerned the entire population and society). Only in the second case is it considered that the government exercises public authority and therefore may be sued for compensation.
5.Can I claim compensation due to the enactment of a law in Parliament?
As mentioned above, the legislative authority is considered an organ of the government, and similarly all the organs of the latter. Therefore, based on the conditions, logically, they should be liable for compensation if they cause damage to an individual with their actions. Thus, as courts often accept, a compensation lawsuit against the government can be filed if damage is caused by the enactment of a law in Parliament.
However, the above conclusion in practice encounters several limitations. And this is because by ‘laws’ here we mean only laws that specifically concern certain individuals/regulate certain individualized cases = not, therefore, all kinds of laws that concern a general and indefinite number of individuals. The same applies to certain regulatory acts of the Administration that will be issued with the authorization of the law and will regulate a more specific issue = a Ministerial Decision that determines how the law will be applied in specific cases of individuals who are more interested.
Taking into account what we just mentioned, we must state that only the above types of laws establish an obligation of the government to compensate if their enactment causes damage to the individual. Furthermore, damage may also be caused by the non-enactment of a law = if the legislator or the Administration failed to enact a law that would regulate a more specific issue/that addresses a specific group of individuals. However, for liability to arise from the omission of enacting a law, there must be a provision of the law that obliges the legislator/the Administration to enact the law (for example, several laws at their end state that the remaining issues will be regulated by Ministerial Decisions and Presidential Decrees that must be issued within a reasonable time).
6.Are there exceptions where the Government does not compensate?
Apart from the basic exception mentioned above, namely when the individual contributed to the occurrence of the damage or did not mitigate it so that it would not spread, the law also establishes another fundamental exception under which the Government does not owe any compensation (even if its action was illegal). This exception concerns cases where the Government acts based on a provision of law that has been established for the protection of the public interest.
But what is this public interest? It is an indefinite legal concept whereby when the Government’s action aims to protect overriding lawful goods, then the violation of some lawful good of an individual can be forgiven (such as when courts previously accepted land expropriations to build facilities of public utility or to construct workers’ housing).
However, since the concept of public interest could also lead to the exclusion of the Government’s liability from the courts, the courts interpret it in a particular way. Thus, they accept that the Government’s liability still exists and is not excluded when, although it aims to protect a socially significant good, it simultaneously violates another good of equal or greater value. For example, it would be illegal for the Government if a law provided for staff cuts in the National Health System to find financial resources for Greece to participate in this summer’s Olympics = different lawful goods, and no public interest would justify the restriction of the former for the sake of the latter.
7.What does the compensation cover?
Following essentially what happens in private disputes, as I mentioned in another text, regarding the compensation due, the legislator states the following:
- Compensation for the individual is generally full (if the conditions mentioned above are met).
- Therefore, it covers any damage suffered as well as lost profits = what would have been gained if the illegal act/omission had not occurred.
- To be awarded compensation for lost profits, it must be certain/very likely that they would have occurred if the illegality had not occurred.
- Additionally, the victim can claim compensation for the moral damage suffered = the violation of their personality/name/reputation, etc.
- The same applies to the victim’s relatives, who can claim compensation for their mental anguish if the victim died as a result of the Government’s illegal act.
- In cases of bodily injury/disability, compensation also includes the victim’s lost profits due to their injury.
8.Is the employee who caused me damage along with the Government also liable?
On this issue of the personal liability of the officer to the injured party, it is true that the law has introduced several exceptions. Thus, although it is generally provided that the Government is liable in full along with its officer/employee for the compensation of the injured party, in practice, Government employees almost never have personal liability towards the injured party for the illegal act.
This is because newer regulations, such as those of the Civil Service Code, establish as a rule the non-liability of the Government employee towards the injured party from the illegal act. The same regulation applies to employees of the first and second-degree Local Authorities = Municipalities and Regions. Practically, this means that the individual can only file a compensation lawsuit against the Government and not personally against the liable employee.
The above solution is not necessarily negative for the injured individual because, as it is understood, the Government has greater assets than the respective employee, from which (assets) the individual could be satisfied, provided that their compensation lawsuit is accepted. The only exception that could trigger the personal liability of the employee towards the injured individual is if the employee does not fall under the legal status of the Civil Service Code (something difficult because even if the employee works for the Government under a private law employment contract, they are legally considered a Government employee and cannot be personally liable for compensation).
9.What if the Government acted lawfully?
This scenario is quite common in practice, where despite the Government following all legal procedures and taking into account all necessary protective measures, damage is still caused to a third party.
As mentioned earlier, Government liability for compensation is objective, meaning there is no need to prove fault; if the conditions set by the law are met, that alone is sufficient for liability for compensation. Furthermore, in this context, it should be noted that the illegality in the Government’s actions should be serious, meaning the action or omission is clearly contrary to the relevant laws. This implies that minor shortcomings in the action, which do not substantially affect the legality of the Government’s actions and could be rectified immediately, are usually considered by the courts as inconsequential. These shortcomings are typically deemed insufficient to justify the damages suffered by the individual.
Based on the above, we can conclude the following: If the Government acted lawfully, there are few chances for any compensation lawsuit against it to be successful. This is because, logically, all legal requirements would have been fulfilled for the Government’s actions to be considered lawful, and any shortcomings would likely be minor, not significant enough to justify the damages suffered by the individual.
10.Can I be compensated if a judge/prosecutor causes me harm?
Regarding the functioning of the judicial authority in Greece, the Constitution itself states that “judges enjoy functional and personal independence.” However, this independence does not extend to the point where their liability is excluded in case of illegal actions. More specifically, let’s make some remarks on the matter:
- Judges in Greece are not considered public servants but public officials, so their personal liability is not excluded based on the Civil Servants’ Code.
- Fundamentally, their liability for compensation can be established when they perform administrative, not judicial, tasks.
- This means that only actions of judges within the judicial body can establish an obligation for compensation (e.g., a promotion/transference of a judicial officer).
- In case harm is caused by a judicial decision, a lawsuit for judicial error must be filed against the judge, as stipulated by the Constitution and other laws.
- This means that a compensation lawsuit against the Government for a judicial decision is generally excluded.
- An exception is introduced when the judge’s error is particularly egregious and obvious, opening the way for a compensation lawsuit against the Government (however, such cases are rare in practice).
Next to the client and his needs.
Athina Kontogianni – Lawyer
The above does not constitute legal advice, and no liability is assumed for it. For more information, please contact us.