New tendencies in public administration development- complexity of public administration in the liability area

Author:Ioana-Cristina Voroniuc
Pages:200-207
SUMMARY

The subject of the complexity of public administration in the liability area is not chosen with the exigency to elucidate all the theoretical and practical problems that it can raise, but in order to draw a clear picture of this institution of administrative law. Nowadays, administration appears as a component of public space, understood as the space of manifestation of general interests and of specific mechanisms of their assurance. Similar to all others, public administration can be wrong as well1. And, again, similar to all others, it can and must be held liable for its mistakes. The authors of administrative law argue that administrative liability is a form of judicial liability that is trained whenever the rules of administrative law are violated, by committing an illicit act, generally called administrative misconduct. Considering the administrative illicit, the doctrine distinguishes three forms of administrative liability, as follows: the administrative illicit itself, contravention illicit and the illicit that causes material and moral damages.2 At the basis of the organization and functioning of the public administration, and therefore at the basis of any fact that may cause damage to individuals, there is a number of administrative acts which gives complexity to the administration, especially through the identification of the person who has to respond for this damages. Therefore, we propose to perform an analysis using qualitative methods in order to discover situations in which the administration is responsible for its illicit acts.

 
CONTENT
200 IOANA-CRISTINA VORONIUC
NEW TENDENCIES IN PUBLIC ADMINISTRATION
DEVELOPMENT- COMPLEXITY OF PUBLIC
ADMINISTRATION IN THE LIABILITY AREA
Ioana-Cristina VORONIUC
ABSTRACT
The subject of the complexity of public administration in the liability area is not chosen with the
exigency to elucidate all the theoretical and practical problems that it can raise, but in order to draw a
clear picture of this institution of administrative law. Nowadays, administration appears as a
component of public space, understood as the space of manifestation of general interests and of
specific mechanisms of their assurance. Similar to all others, public administration can be wrong as
well1. And, again, similar to all others, it can and must be held liable for its mistakes. The authors of
administrative law argue that administrative liability is a form of judicial liability that is trained
whenever the rules of administrative law are violated, by committing an illicit act, generally called
administrative misconduct. Considering the administrative illicit, the doctrine distinguishes three
forms of administrative liability, as follows: the administrative illicit itself, contravention illicit and
the illicit that causes material and moral damages.2 At the basis of the organization and functioning
of the public administration, and therefore at the basis of any fact that may cause damage to
individuals, there is a number of administrative acts which gives complexity to the administration,
especially through the identification of the person who has to respond for this damages. Therefore, we
propose to perform an analysis using qualitative methods in order to discover situations in which the
administration is responsible for its illicit acts.
Keywords: public administration, judicial liability, administrative liability, administrative illicit,
administrative acts.
The Liability of the Public Administration
Judicial liability is defined in the Romanian literature as „a complex of rights
and obligations which, according to the law, arise as a result of committing illegal
acts and constitutes the framework for the achievement of the state constraint, by
applying legal sanctions with the purpose of ensuring balance in social relations
PhD, second year, within the National University of Political Studies and Public Administration,
Doctoral School - Administrative Sciences.
1 Blan, E.; Troan Rebeleş, D. T. , General Principles of the Administrative Procedure. The Romanian
Perspective. Transylvanian Review of Administrative Sciences, [S.l.], p. 13-29, Jun. 2007. ISSN 1842-2845.
Available at: <http://www.rtsa.ro/tras/index.php/tras/article/view/362>. Date accessed: 27 May. 2017.
2 Нtefan, E.E, PhD thesis, prof.coord. N. Popa, Bucharest, 2012, p. 16.
Law Review vol. III, Special issue 2017, pp. 200-207
New tendencies in Public Administration development... 201
and for guiding the members of society in the spirit of observing the rule of law3”.
Judicial liability is a component of social liability and it is characterized by the fact
that it occurs whenever a person violates a norm of law through an unlawful act
that may consist of an action or an inaction. Given its importance to society,
judicial liability is traditionally a fundamental institution of law.
According to the doctrine, considering the two major components of the law
perceived as the whole of judicial norms, namely private law and public law, there
are two forms of judicial liability: judicial liability in private law and judicial
liability in public law. Then, taking into account all branches of law that include
the norms governing judicial liability, we distinguish between: civil liability,
criminal liability, administrative liability etc.
In the doctrine, the administrative-patrimonial liability was defined as
representing the form of judicial liability consisting in forcing the state or, as the case
may be, the administrative-territorial units to repair the damage caused to
individuals through an illegal administrative act or by the unjustified refusal of the
public administration to solve an application for a right recognized by law or a
legitimate interest.
As we said before, the subject of the administration's liability for the limits of the
public service is not chosen with the exigency to elucidate all the theoretical and
practical problems that it can raise, the possible loopholes that remain unclear, to be
treated in the following, during the elaboration of the PhD thesis entitled
„Administrative-Patrimonial Liability for the Public Power Act and the Rule of Law”.
1. Tendencies in Public Administration’s Liability for the Limits of the
Public Service
Administration appears as a component of public space, understood as the
space of manifestation of general interests and of specific mechanisms of their
assurance. Similar to all others, public administration can be wrong as well4. And,
again, similar to all others, it can and must be held liable for its mistakes. The
authors of administrative law argue that administrative liability is a form of judicial
liability that is trained whenever the rules of administrative law are violated, by
committing an illicit act, generally called administrative misconduct. Considering
the administrative illicit, the doctrine distinguishes three forms of administrative
liability, as follows: the administrative illicit itself, contravention illicit and the illicit
that causes material and moral damages5.
3 Blan, E., Administrative Institutions, C.H.BECK Publishing, Bucharest, 2008, p.194 - extract
taken from M. Costin, Legal Liability in RSR, Dacia Publishing House, Cluj, 1974, p. 31-32.
4 Blan, E.; Troan Rebeleş, D. T. , General Principles of the Administrative Procedure. The Romanian
Perspective. Transylvanian Review of Administrative Sciences, [S.l.], p. 13-29, Jun. 2007. ISSN 1842-2845.
Available at: <http://www.rtsa.ro/tras/index.php/tras/article/view/362>. Date accessed: 27 May. 2017.
5 Нtefan, E.E, PhD thesis, prof.coord. N. Popa, Bucharest, 2012, p. 16.
202 IOANA-CRISTINA VORONIUC
Committal of the administrative illicit itself, also called disciplinary
administrative deviation, has as result the engagement of the administrative-
disciplinary liability; committal of the contravention illicit (contravention) will lead
to administrative-contravention liability, and the committal of illicit that leads to
material and moral damages, will lead to administrative-patrimonial liability. This
latter type of liability is known in the literature in four forms:
1) Exclusive patrimonial liability of the state for damages caused by judicial
errors that do not exclude the magistrates' liability;
2) The patrimonial liability of the administration for the limits of the public
service;
3) Joint liability of the officer and the public authorities for damages caused by
typical or assimilated administrative acts; and
4) The liability of the public authority for damages caused by administrative
contracts.
The liability of the public administration must be divided into two categories,
from the beginning, in two big categories6: on one side its liability for the
administrative acts that it issues (here we are referring to the administrative
contracts) and, on the other hand, the liability for the malfunction of the public
service (sometimes found in the literature as the liability for its illicit acts or for the
limits of the public service)7. If the first one has been extensively analyzed in our
doctrine, the issue being discussed practically in almost every work of general
administrative law, the latter is often not even mentioned or, at best, treated
expeditiously. We believe that we are in this situation, on one hand, because liability
for the malfunctioning of public service is often confused with civil liability and on
the other hand because the jurisprudence in this matter is extremely poor. Unlike
civil liability, which is a subjective liability, in the case of the liability for public
authority it is difficult to answer with certainty whether it has an objective or
subjective character due to its complex character. Based on the „service risk” theory
and the „bad operation service” theory, we can distinguish between „objective”
liability and „fault-based” liability of the administration for damages caused to
third parties through public authority acts. In the category of objective liability, in
general, it is included state liability for damages created by judicial errors, as well
as that of the public administration authorities for the limits of the public service.
Regarding the latter type of liability, we mention that it occurs when a public
service, through the faulty way in which it is organized, causes certain damage to
6 For a similar division, see Anibal Teodoresco: “Le fondement juridique de la responsabilite dans le
droit administratif” in Mélanges Paul Negulesco, National Printing House Publishing, Bucharest, 1935,
pp. 755-756.
7 It would therefore operate a separation of administrative liability similar to the one which
operates in civil liability, also divided into a liability based on a judicial act (contractual civil liability)
and one based on a judicial fact (civil liability tort).
New tendencies in Public Administration development... 203
individuals. This form of liability is not expressly established in our country, but
we believe that it can be deduced from the following constitutional principles:
- „The principle of equality of all before the law and the public authorities”
together with the fact that “no one is above the law” – art. 16 of the Romanian
Constitution, par. 1 and 2;
- „Guaranteeing the right to life, as well as to physical and mental integrity,
which may be harmed by the limits of a public service” – art. 22 of the Romanian
Constitution.
This type of liability also intervenes regardless of the guilt of the public
authority called upon to be liable. In practice, it has been found that this creates an
optional state of the state power body to act in a regress, especially since it does not
attract any sanction for the relevant minister or public servant concerned, in the
conditions of non-exercising the action in regression. The person who suffered the
damage is not bound to prove a fault of the administration or the servant, but must
convince the court that the damage is due to an inherent fault, a limit of the structure
of the public service.
2. The Complexity of the Public Service
The law offers discretionary powers on the authorities of public administration
to carry out their own tasks.8 On the citizens, these powers are not exercised only
with the provision and the enforcement of the law, but also through the public
services they provide, through the granting of permits and authorizations9. The
public service term is extremely important, as the administrative law, according to
the literature, has two dimensions. On one side, we talk about the judicial person
under public law – the organic dimension, and on the other side we talk about the
public service – the material dimension10. The state and the administrative-territorial
units, as organizational forms of life and activity of the members that make them,
are meant to ensure the inhabitants the necessary conditions for cohabitation
continuously and permanently, organizing for this purpose a multitude of
organizational structures, frequently called in the normative acts, but also in the
specialized judicial doctrine of public services, which they provide for their proper
functioning with: material means and money, specialists, etc. Some of these public
services are organized only by the state; others may also be organized by local
authorities recognized by the state. In the first case, we talk about public services of
the state, in the second case of public services of the commune, city or county, as
the case may be. The importance of public service is all the greater as the state and
its other units are „indispensable tools meant to provide its citizens with the sum
8 Blan, E., Administrative Procedure, University Publishing, Bucharest, 2005, p. 28.
9 Ibidem, p. 29.
10 Manda, C., Administrative Law. Elementary Treatise. Ed. IV, Lumina Lex Publishing, Bucharest,
2007, p. 291.
204 IOANA-CRISTINA VORONIUC
of welfare that they cannot otherwise find11”. Thus, the concept of public service is
indissolubly linked to the one of public interest and can be defined as “the activity
organized or, where appropriate, authorized by a public authority for the purpose
of satisfying a legitimate public interest, carried out by an administrative authority
(administrative body) or public agent (state/private) to satisfy a general interest12”.
When the civil service elected for the citizen presents certain limits – certain
organizational and operational impediments that endanger certain material or
human values, we can speak of the involvement of the public administration’s
patrimonial liability for the limits of the public service. In France, the notion of
public service has evolved with the evolution of public administration, characterized
by two phenomena: the proliferation of public services having an economic
subject, namely industrial public services and commercial; the development of the
participation of individuals in the tasks of general interest (the management of
public services of private persons is best illustrated by the concession of public
services)13. French literature has defined the public service as the totality of the
activities of a public collectivity aimed to satisfy needs of general interest (national
defense, rail transport etc.). The various public authorities (state, local collectivities)
provide public services: France’s external relations are, for example, a public
service of the state and national, a transport service in a city is a municipal public
service. Within the French doctrine, the notion of public service was recognized in
two ways: organic or formal and a material one. Organically or formally, the civil
service was characterized as an organization, a corporation guided by administration,
and in the material way, the public service was considered as any activity that
aimed to satisfy a general interest (irrespective of the nature of the organization
exercising it)14. Often, the material and formal definition coincided, so that in the
French classic law, an activity of general interest, guaranteed by administration,
was always considered a public service.
Regarding the conditions that constitute the basis of the commitment of the
public administration authorities for the limits of the public service in our country,
we appreciate that these are represented by15:
- The existence of a public service that contains some organizational and
functional shortcomings and which contradicts certain material or human values;
- Existence of material or moral injury caused by the limits of the respective
public service;
11 Ibidem, p. 292.
12 Blan, E., Administrative Institutions, C. H. Beck Publishing, Bucharest, 2008, p. 129.
13See André de Laubadére, Jean Claude-Venezia, Yves Gaudament, Traité de droit administratif,
Volume 1, General Administration, 15th edition, L.G.D.F., 1999, p. 43.
14 Veded, G. in Rodica Narcisa Petrescu, Administrative Law, Cordial Lex Publishing, Cluj-Napoca,
2001, p. 11.
15 Botomei, V., Administrative Liability, Practical-Scientific Aspects in Comparative Plan, Vicovia
Publishing, Bacu, 2013, p. 205.
New tendencies in Public Administration development... 205
- Causal relationship between public service limits and injury;
- Developing claims by the injured party.
In support of this view, we recall the Law of Administrative Litigation which
in Article 1 stipulates that:
„Any person who considers himself or herself to be prejudiced in his/hers
right or in a legitimate interest, by a public authority, by an administrative act or
by not solving an application within the judicial term may appeal to the competent
administrative court for the annulment of the act, the recognition of the claimed
right or legitimate interest and the repair of the damage caused to him/her.
Legitimate interest may be both private and public”.
3. Issues raised by the Administrative Liability
Regarding the above-mentioned issues, we ask ourselves whether whenever the
operation of a public service will cause damage to the administration, we will speak
of administrative liability. In order to answer this question, we have to make a classic
distinction between administrative public services and industrial and commercial
public services. The difference between these two types of public services depends
on the extent to which they are influenced by public law: there is a maximum
influence on administrative public services and a minimum for industrial and
commercial ones16. We believe that the involvement of administrative liability must
be linked precisely to this intervention of public law in the operation of various
services. Thus, it is understandable that in the case of administrative public services,
the regime of administrative liability will apply. But this does not automatically
mean that the rest of the public, industrial and commercial services must be
submitted, without any distinction, to a regime of private law liability.
Another issue that liability for the limits of the public service raises is that of
the competent court for hiring it. There are basically two possibilities: the liability
of the administration is of the civil departments jurisdiction, as courts of common
law competence in matters of civil liability, or the competence belongs to the
administrative litigation courts, as specialized courts for solving disputes between
the administration and individuals. It would seem that the current Constitution,
like Law no. 554/2004 of the administrative litigation, establishes the settlement of
disputes arising from the illicit acts of the administration by the courts: special
sections of administrative litigation and fiscal within the tribunals, the Courts of
Appeal and the High Court of Cassation and Justice. The administrative litigation
judge is the one who can pronounce on both the legality of the act and its
opportunity. However, neither the Romanian Constitution, nor Law no. 554/2004,
which represents the common law in the matter of the trial of administrative
contentious proceedings and up to different special normative acts regulating the
16 Morand-Deviller, J., Cours de droit administratif, Montchrestien Publishing, Paris, 2001, p. 459.
206 IOANA-CRISTINA VORONIUC
organization and functioning of public services17, we shall not find any provisions
that will confer the administrative law courts the competence to judge the
litigations that concern unlawful acts of the administration that caused personal
injury. Moreover, both the Constitution and Law no. 554/2004 refers to damage
caused by an administrative act or by an unjustified refusal to solve a claim. In
addition, art. 2, lit. F of Law no. 554/2004 of administrative litigation informs that
„the activity of settlement by the competent administrative litigation court according to the
organic law of disputes in which at least one of the parties is a public authority and the
conflict was born either by the issuance or the conclusion, as the case may be, of an
administrative act, within the meaning of this law, either by failing to solve the matter in
the judicial term or by refusing to resolve an application for a right or a legitimate interest”.
While it seems that we are again struggling with the limitations mentioned above –
which reduce administrative litigation to litigations arising from acts rather than
deeds – we believe that this article may, however, receive extensive interpretation.
Conclusions
At the basis of the organization and functioning of the public administration,
and therefore at the basis of any fact that may cause damage to individuals, there is a
number of administrative acts. Consequently – indirectly – it can be argued that a
litigation in order to compensate for a damage caused by an act of the administration
was born out of the issuance of an administrative act. We would thus find ourselves
in the judicial definition of administrative litigation. Even though there is no general
regulation in Romanian law18 to deal with the administration's liability for its
malfunctioning, there is at least one special regulation that makes it clear that this
liability is one that guides the rules of public law: the Law no. 83/1996 of postal
services19. Referring to damage goods to shippers through loss, misappropriation,
misdelivery, partial failure or damage to postal parcels, these facts are genuine
unlawful acts resulting from the malfunction of the public service and give rise to
compensation for the injured party.
We believe that to the extent that the responsibility of the administration for its
unlawful acts was considered by our doctrine to be an autonomous liability
distinct from civil liability, considering that, on one side, administrative law is an
autonomous branch of law and, on the other side, that this liability has specific
features, we can extend this conclusion to the liability of the administration for the
limits of the public service (its illicit facts), on the same grounds.
17 This is the case, for example, of Law no. 218/2002 on the organization and functioning of the
Romanian Police (published in the Official Gazette no 305/2002), of Law no. 129/1996 on the Romanian
railways transportation (published in the Official Gazette no. 268/1996).
18 See in French law, the Blanco Decision, from 1873 by the Conflict Tribunal.
19 Published in the Official Gazette no. 156/1996.
New tendencies in Public Administration development... 207
BIBLIOGRAPHY
1. Blan, E., Administrative Institutions, C. H. Beck Publishing, Bucharest, 2008.
2. Blan, E., Administrative Procedure, University Publishing, Bucharest, 2005.
3. Blan, E.; Troanț Rebeleș, D. T., General Principles of the Administrative
Procedure. The Romanian Perspective. Transylvanian Review of Administrative
Sciences, [S.l.], p. 13-29, Jun. 2007. ISSN 1842-2845. Available at: <http://www.
rtsa.ro/tras/index.php/tras/article/view/362>.
4. Botomei, V., Administrative Liability, Practical-Scientific Aspects in Comparative
Plan, Vicovia Publishing, Bacu, 2013.
5. Laubadére, A.; Claude-Venezia, J.; Gaudament, Y., Traité de droit administratif,
Volume 1, General Administration, 15th edition, L.G.D.F., 1999.
6. Manda, C., Administrative Law. Elementary Treatise. Ed. IV, Lumina Lex
Publishing, Bucharest, 2007.
7. Morand-Deviller, J., Cours de droit administratif, Montchrestien Publishing,
Paris, 2001.
8. Petrescu, R., N., Administrative Law, Cordial Lex Publishing, Cluj-Napoca, 2001.
9. Нtefan, E.E, PhD thesis, prof.coord. N. Popa, Bucharest, 2012.
10. Teodoresco, A., „Le fondement juridique de la responsabilite dans le droit
administratif” in Mélanges Paul Negulesco, ed. National Printing House, Bucharest,
1935.