The Doctrine of the State's Civil Liability in Recent Spanish Law

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FrenchFrenchIntroduction. — I. - Le droit antérieur à la loi de 1954 sur l'expropriation forcée. — II. - L'introduction du principe général de la responsabilité civile de l'administration par la loi de 1954 sur l'expropriation forcée et le système de cette loi comme garantie intégrale du patrimoine des administrés vis-à-vis de l'action publique. — III. - Libération de la responsabilité civile du domaine de l'action illicite. — IV. - Le problème de la théorie générale de la responsabilité - la lésion patrimoniale et l'imputation. — V. - L'extension de la responsabilité civile de l'administration dans la nouvelle loi espagnole. — VI. - La couverture par l'administration de l'imputation de responsabilité au fonctionnaire et son organisation technique. — VII. - Procédure et juridiction.by Eduardo García de EnterríaAssistant Professor of Administrative Law at the University of MadridRecent Spanish legislation, by systematically waiving the time-honoured dogma of State immunity from civil liability, gives extremely interesting indications on the trends of contemporary juridical evolution in the Western countries, as first witnessed in the 1919 Weimar Constitution, ulterior developments being the Federal Tort Claims Act, 1946 (U.S.A.) and the Crown Proceedings Act, 1947 (U.K.). Both countries had previously held the opposite view: the personal liability at law of civil servants.Though Spain's conversion to the newer legal doctrine has occured but latterly, its attitude in this matter is so liberal as to be eminently noteworthy.Spanish law had always enforced the rule of liability of the officials responsible for damages sustained by third parties, as shown by an analysis articles 1903 and 1902 of the Civil Code, together with the Act of 5th April, 1904, on the Liability of Civil Servants. The position has been tempered by the Local Government Act, 1950.But the Enforced Dispossession Act adds, in Professor García's opinion, something significant, which will have to be examined separately and exhaustively, as the new provisions it contains have completely supplanted the specific legal principles formerly in force. It stands on a guarantee of private assets from State encroachments. The two concepts, of dispossession and of State liability, which are in no way to be confused even though they are to be found in one and the same law, are highly significant when considered jointly.The Act of 1954 holds that the State may be liable for damages « resulting from the normal or abnormal activity of public service. »Spanish law might have been aligned on its German counterpart, holding « legitimate » damages to be idemnified as a form of dispossession, a matter for Administrative, i.e. Public Law; whilst « non-legitimate » damages are considered a matter for civil liability proper. But such has not been the position of Spain; and the author analyses the two arguments determining the Spanish doctrine.He reverts to an examination of French legal precedent, which is both « advanced » and juristic; and goes on to a determination of the lay and the technical concepts of tort, the former being economic in nature, the latter being juridical.Article 122 of the Act requires that the tort be factual, economically evaluable, and definitely related to a person or persons. This last point is a source of legal arguments, such as that « normal activity of public services » is a legitimate charge when its burden falls on the whole community or considerable sections thereof.In practical conclusion, Spanish law now extends State liability to all official acts by its agents, whether in the scope of « normal » or « abnormal » activity, but not to personal, i.e. privatim acts. And the liability covers even the gravest faults, inclusive of criminal fraud. Incidentally, the agents in question are not only the civil servants in the narrower, formal, acceptation of the term, but all who exercise public functions, be it de facto. Actions in damages are in the competence of the Audit Court; the delay for introduction of claims is fixed by Article 122, at one year. The State has four months in which to adjudge claims. Absence of such adjudication is held to be rejection, whereupon the way is open for recourse to « contentious-administrative » procedure, as if liability had been expressly disclaimed.