The position of illegality in state liability
PhD student: Mrs F.M. Auvray
Promotor: Mrs Prof I. Samoy
Duration: 1/5/2016 - 30/4/2021
In Belgium, citizen and State have to answer for the damages caused by their fault. But when does someone commit a fault? Lacking any legal definition, the fault-concept received multiple contents, but doctrine and jurisprudence nowadays agrees that a fault requires either, the violation of a specific norm of conduct, or the breach of the general obligation of diligence. The same fault definition is applied in cases of State liability (for administrative bodies, as well as the legislative and judicial ones). The question arises if this equal treatment (between citizen and state on the one hand, and between the different public powers, on the other) and the apparent simplicity of the concepts is not mere illusion. Indeed, especially the violation of a specific legal norm of conduct, seems to need a different approach depending on the person or public authority whoms fault is being reproached. In a multi-layered society where the illegality of the actions of the public authorities is closely controlled, it is crucial to identify the exact implications of the breach of a specific norm of conduct as a fault. When is a norm imposing an injunction or an interdiction, specifically? What role should the jurisprudence of the legality controlling courts (Constitutional court, European Court of Justice, ) play? Can the State appeal to the same causes of justification (insurmountable error, force majeure, ) as civilians do, in order to avoid liability?
This research will analyse the exact position of illegality within the State liability.