Administrative Liability in French Law

Extract

[...] The cumulation of faults and responsibilities > The administrative judge recognized that the faults and responsibilities of the administration and the agent could cumulate. > 1st case: a fault of service and a personal fault cumulate (CE 3 February 1911, Anguet) This JP still applies in cases where the judge considers that the personal fault was made possible by the existence of a service fault defect of surveillance of the administration bad organization of the service For example: case Papon: personal participation in the arrest of Jews / activity of the Vichy administration = Jewish affairs service, provision of police forces for the arrest of Jews, etc. [...]

[...] > Two ways to appreciate this intensity: - Whether the behavior itself is seriously possible because it would be a violation of a rule itself determining (in JP the intensity of the action conducted counts little) - Whether one understands the intensity of the consequences of the fault (e.g. death of the victim, or significant economic consequences). > Therefore, objectively, gross negligence reduces the chances of victims being indemnified (since it is absolutely necessary to have GROSS NEGLIGENCE to indemnify). So, the judge has gradually limited the scope of application of gross negligence. [...]

[...] : TC 14 January 1935, Thépaz) - A fault of inexcusable gravity (ex : prefect of Corsica who gives the order to set fire to beach huts built without authorization commits a personal fault = Cass. crim October 2004, Bonnet) > The fault of service by opposition is a fault that is inseparable from the service. The fault can be due to the service as a whole (anonymous aspect) or can be individualized (committed by a specific agent). Fault of service individualist or not. [...]

[...] Here, we will have cases where a measure of general interest is taken: it has advantages for all, but disadvantages for a very small group or person, who finds themselves in a situation of inequality. The measure is of general interest and benefits everyone, except him. Therefore, we do not question the measure, but we will indemnify the person because their different situation puts them in an unequal position: we compensate an inequality generated by a measure. Specific legislative regimes also provide for cases of faultless liability. [...]

[...] - The State is liable for damage caused by dangerous gatherings or assemblies (Law of January 1983) all damages are repaired under the condition of abnormality and specialty the damages must be caused at the occasion of assemblies or gatherings the damages must be the consequence of crimes or delicts - The State is liable without fault due to the damages resulting from the death of a detainee caused by violence committed by another detainee (law of 24 November 2009, replaces a case of jurisprudence of liability for fault) (Damages in the context of detention) > The legislator has completed these devices by setting up compensation funds : - the compensation funds for victims of terrorist acts (law of 9 September 1986) allow for compensation for all damages suffered by any person who is a victim of an attack on French territory or any French person who is a victim of an attack outside of French territory (it is sufficient to have the status of a victim of an attack, and to be French or on French territory) To prove that one was a victim, it is enough to prove that one was present at the scene and at the time of the attack - The Committee for Compensation of Victims of Nuclear Tests (CIVEN), created by the law of 5 January 2010 (amended by law of 18 December 2013) has the power to grant compensation based on a presumption of causal link (which can be reversed in certain conditions: CE 7 February 2015, Mme Larnier) There is a list of diseases and a list of periods and locations of nuclear campaigns In order to have a presumption of causal link - The National Office for Compensation of Medical Accidents, Iatrogenic Affections and Nosocomial Infections (ONIAM) for example ensures the compensation of the harm suffered by compulsory vaccinations (article L3111-9 CSP) The State obliges to vaccination but sometimes they can kill . Section Repairing the Harm The Reparable Harm > For the administrative responsibility to be recognized, the victim must have suffered a harm. The harm depends on each victim, as the damage caused by the generating fact does not necessarily have the same effect on each one. > Distinction between damage and harm : - Damage (objective) : broken leg, fracture - Harm (subjective) : related to personal situation, cyclist or professional Consequences? [...]