Who is responsible for the operation of public authorities?


A sense of justice makes us assume that every legal entity is responsible for damages caused by their unlawful actions or omissions. Based on this assumption, it should be stated that the authority should also bear this responsibility. This was the idea behind the introduction of provisions to the Civil Code, according to which the authorities, and not citizens, should bear the costs of improper actions by state representatives. Who is responsible for the operation of public authorities? Find out more!

The basis and principles of responsibility

The general basis for claiming damages from public authorities is Art. 417 of the Civil Code. Pursuant to the regulation contained therein, the liability for the actions of public authorities is not based on fault - therefore it does not need to be proved, which significantly simplifies the pursuit of claims. At the same time, and importantly, the public authority will not be able to easily free itself from responsibility by showing no guilt.

Public authority is liable on the basis of illegal acts or omissions.

Compensatory liability for the operation of public authorities

Prerequisites that must be proved in court are:

  • pity (its existence and amount),

  • the fact that the damage was caused as a result of an act or omission in the exercise of public authority,

  • the fact that there is a normal causal link between the act / omission and the damage.

Which entities may be affected by the regulations?

The regulation contained in Art. 417 of the Civil Code allows you to be liable:

  • Treasury,

  • a local government unit (commune, poviat, voivodeship self-government),

  • inter-commune unions and associations of poviats,

  • other entities exercising public authority (e.g. universities, Narodowy Bank Polski).

The party commissioning the tasks and the entity entrusted with the exercise of public authority shall be jointly and severally liable.

In this respect, it does not matter whether the person exercising public authority is a public official [K. Osajda, Civil Code. Commentary, Article 417 of the Civil Code, ed. 18, 2018, Legalis].

What actions can you challenge?

It should be remembered that on the basis of the regulations and in accordance with the indicated principles, you can only complain about actions that can be called imperious. If bodies governed by public law perform other types of activities, they are liable for the operation of public authority on the same terms as any other.

The division of activities into the categories indicated above is not always clear. An example may be the list of activities of public authorities in the field of providing health services. As part of the provision of these services, e.g. failure to conclude an agreement by the National Health Fund with an institution, which would make it impossible to obtain health services, should be classified as liability for the actions of public authority. However, such a qualification cannot cover the operation of the health service when it comes to a medical malpractice [cf. Judgment of the Court of Appeal in Katowice - I Civil Division of October 6, 2017, I ACa 395/17, Legalis].

Inconsistency of the government's operation with the law

The basic premise that will have to be demonstrated in court is the unlawfulness of the actions of public authorities. In this case, it is about the fact that a given behavior is inconsistent with a legal norm contained in an act, an international agreement, a regulation or an act of local law.

Non-compliance with the law may not consist in breaking the so-called principles of social coexistence and good manners, i.e., for example, on the disloyal actions of an official or his immoral behavior. In such a case, the so-called responsibility for the operation of public authorities is tort under Art. 415 of the Civil Code, and then it will be necessary to prove that the person exercising power is at fault.

It should be remembered that the condition for claiming compensation for unlawful actions of public authorities is the prior obtaining of a court judgment stating the non-compliance with the law.

State responsibility for legislative unlawfulness

A special type of claim for damages for unlawful actions of the authorities is regulated by Art. 4171 of the Civil Code. It is the responsibility for the actions of public authorities for the so-called legislative lawlessness. This type of tort will consist in the non-compliance of an enacted legal act generally applicable with legal norms of a higher order, i.e. e.g. non-compliance of the provisions contained in the ordinance with statutory regulations or, respectively, statutory and constitutional norms.

The legal doctrine emphasizes that not every inconsistency will make it possible to claim damages, but only such defects which, due to the gravity of the violation, mean that the legal norm does not exist or has ceased to apply.

The mere declaration by the Constitutional Tribunal that a given legal act is unlawful is also not sufficient to raise a claim. According to the jurisprudence: (...) one cannot put the equation sign between the sole declaration by the Tribunal that a given normative act is inconsistent with the Constitution and the possibility of assigning the State Treasury liability for damages for issuing such an act. Contrary to the literal interpretation of Art. 4171 § 1 of the Civil Code, it should have been concluded that the finding of non-compliance (...) with the Constitution was not sufficient to impose liability to the State Treasury for damages caused by the issuance of such a normative act. The Constitution, in Art. 190 left the Court the final decision as to the effects of its ruling [Judgment of the Court of Appeal in Warsaw - 1st Civil Division of February 24, 2012, I ACa 759/11, Legalis].

In line with the above, the decisive factor will be the ruling of the Constitutional Tribunal to the extent that it relates to the further fate of the provisions deemed unconstitutional. Obtaining compensation on this particular basis is therefore not straightforward.

What claims can you pursue and to what extent?

First of all, it is possible to seek compensation in the full scope - both in terms of actual losses and lost profits [judgment Of the Constitutional Tribunal of 23 September 2003 (K 20/02, OTK-A 2003, No. 7, item 76)].

Pursuant to Art. 448 of the Civil Code and the position expressed in this respect by the Supreme Court, it is also possible to claim compensation for harm caused by unlawful exercise of public authority [resolution of the Composition of the Seven Judges of the Supreme Court - Civil Chamber of October 18, 2011, III CZP 25/11, Legalis ].