Liability for Others

Abstract

“Liability for others” is a generic expression covering situations where a person is liable for the damage caused by another person who is under his or her supervision, control or direction or who has to follow his or her instructions.1 According to the majority of European legal systems, these situations are: 1. Liability of parents or persons for the damage caused by minors or insane persons under their supervision or control.2 However, this falls outside the scope of this study, since no rules or decisions referring to this sort of liability have been found in the acquis. 2. Liability of the principal or employer (in the widest possible sense of the term) for the damage caused by his agents, employees or auxiliaries. In general terms, cases falling into this group require that: i) the auxiliary was subject to some form of subordination with regard to the principal, or acted according to the instructions and under the supervision or control of the principal; and ii) the auxiliary causing damage acted within the scope of the functions — understood in a wide sense — entrusted to him by the principal.3 We include under this heading the liability of the European Community for damage caused by its agents and institutions. The reasoning behind this option is, on the one hand, that there are legal norms regulating this liability (see, for instance, art. 288(2) EC and art. III-431 European Constitution) and, on the other hand, that all the decisions of the ECJ dealing with this topic refer to it. However, the report takes into account that most countries draw a distinction between the liability of legal persons when acting by means of agents or auxiliaries and their liability when acting by means of their organs.4