State Liability Without Fault for Public Health Measures: Conditions and Limitations in COVID-19 Regulatory Context
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State liability without fault, public health measures, Covid-19, administrative court, regulatory measures, public charges, equality before public burdens
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Abstract
Unlock expert insights into the State's liability without fault in the context of public health measures during the Covid-19 pandemic. Discover how the Administrative Court's decision sheds light on the conditions required to engage the State's liability and the challenges faced by businesses seeking compensation for damages resulting from regulatory measures. Learn about the critical factors that determine the State's responsibility, including the need for a serious, special, and abnormal prejudice, and how the court's severe assessment impacts the right to compensation. Understand the implications of this ruling for businesses and establishments affected by public health measures and the evolving landscape of State liability without fault. Dive into the details of this significant court decision and its relevance to your business or establishment's situation.
Extract
[...] To what extent can the State's liability without fault be engaged due to regulatory measures necessary for the protection of public health? The administrative court in its decision recalls that in order to engage the State's liability without fault, it is necessary to have suffered a serious, special, and abnormal prejudice and in this case the company « the Seine sur Scène company does not establish that it has suffered a special prejudice. It is therefore not entitled to request the engagement of the State's liability without fault due to the issuance of regulatory measures taken on the basis of the law aimed at combating the spread of the Covid-19 virus » thus the Administrative Court does not grant the requests of the applicant company. [...]
[...] Problem, CE 20 October 2014, Ste Sopropêche : In the absence of express legislative provisions to the contrary, the issuance of a standard for the purpose of public health cannot engage the liability without fault of the State. It is a matter of avoiding that the risk of liability without fault interferes with the adoption of measures necessary for the protection of the administered. It is therefore up to the judge to study whether the measures taken in the application of the state of health emergency regime were strictly proportionate and necessary. Notably in view of the closure of establishments receiving the public. [...]
[...] The purpose : the engagement of liability without fault for the rupture of equality before public burdens has for but to compensate the citizens who suffer, as a result of an administrative activity, heavy and particular burdens that the generality of citizens do not incur. Abnormal prejudice leading to disproportionate measures.Considering 6 of the judgment to be commented). II. The severe assessment by the administrative judge, of a grave, special and abnormal situation A. The opening of the right to compensation conditional (Considering 7 of the judgment to be commented) The State cannot shirk its responsibility without fault, even if it had previously put in place financial aid measures for the company in question. [...]
[...] Context: the unprecedented situation we have experienced with Covid-19 has notably allowed us to mobilize this responsibility without fault of the State in relation to the impact of administrative regulations on businesses and establishments receiving the public. Société ERP type P subject to repeated and definitive closures following the establishment of decrees resulting from the state of health emergency. The company claims to have suffered a serious, special and abnormal prejudice: because ERP type P establishments had to close completely, unlike ERP establishments. Interests difficulty in engaging the State's liability when it arises from regulatory measures intended to protect public health. [...]
[...] It is up to the judge to assess the compensation / remains conditional only if the company has suffered a special, serious and excessive prejudice, exceeding the risks inherent to its activity. B. Lack of special prejudice (Considering paragraphs 8 and 9 of the judgment the company (ERP type in this case claims that it has been placed in a different situation compared to other ERPs ? who did not have to close from June to November 2020 compared to the company in this case which was subject to successive closure measures + total closure. [...]
