Damages due to actions of the public authority

Damage as a result of acts or negligence of the governmentmage caption

1. Since the famous Flandria judgment, the authorities (the state, the region, the communities, the province, the municipality, the OCMW, etc ..) can be held responsible for alleged errors or shortcomings.

This usually concerns acts such as "executive power". But the government as legislator can also be held responsible (if it does not comply with the principles of good administration when drafting that law or decree).

Making laws is also not an optional matter. If the government fails to allow new laws to be voted in certain circumstances for circumstances that urgently need to be regulated, this can in itself give rise to liability and possibly an obligation to pay compensation.

The government, as a judiciary, may also be obliged to pay compensation (e.g. falsely declaring a company in bankruptcy).

Certain government decisions can effectively cause serious damage. The public interest can conflict with a private interest. This does not exclude the possibility of compensation, but an error must be proven or there must be error-free liability (eg a government building is neglected and causes damage to the adjacent building).

2. Sometimes it is also possible that the government does not respond in time to an application and that it is even necessary to wait several months, which can lead to damage. Every government is obliged to act meticulously and diligently, and failure to do so may be obliged to pay damages. A government is bound to respect the principles of good governance. When assessing administrative acts, before administrative courts, they are regularly invoked to challenge these acts.

3. One can even turn to the Council of State if the government is unable to take a decision to which it is obliged. It is the case that access to the Council of State ceases when 3 years have passed. This is not to be confused with the need to contact the Council of State within 60 days if you do not agree with an administrative decision that concerns you.

4. There is also a hierarchy between the decisions of the government. A municipality can issue municipal regulations related to building regulations or nuisance, with its own sanctions (see GAS regulations). These are subordinate to decrees or laws, or Royal Decree or Ministerial Decree, and if they conflict with them, the judge may be asked not to enforce them.

5. With the establishment of the Constitutional Court, laws can also be called into question when they violate the equality of the individuals of the same category. There is already an extensive body of decisions of the Constitutional Court on certain laws in this regard. Usually they are later amended by the legislator, but sometimes it can take a long time. The Constitutional Court sometimes grants a transition period to the government to take legislative initiative. This was the case, for example, with regard to the distinction which formerly existed between blue-collar and white-collar workers. Sometimes it could also have consequences that were not wanted. The former gendarmes had turned to the Constitutional Court and on the basis of inequality found they lost their former favorable regimes (early retirement from 56 years), where their colleagues from the municipal and judicial police did not have these privileges.

6. In the event of such an error, the full damage must be compensated (Article 1382 of the Civil Code). Interest (the so-called compensatory interest) accrues from the day of the facts itself. Sometimes years elapse and the compensation must be adjusted to the loss of purchasing power on top of that (Court of Cassation 7.9.2018, RW 2019-20, page 349).

Of course you can direct all your questions to us concerning this regard