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Report No. 277

(v) The German Civil Code

3.23 With respect to official breach of duty pertaining to administrative acts, the 'official liability' is the central standard of the German state liability law. The legal basis for the same resides in the German Civil Code (in effect since 1900) called Bürgerliches Gesetzbuch (BGB). § 839, read with Art. 34 GG. § 839 BGB laying down the provision regarding 'Liability in case of official breach of duty', states as follows:

(1) If an official, intentionally or negligently, violates his official duty towards a third party, he shall reimburse the third party for the resulting damage. If the official is only liable for negligence, he may only be charged if the injured person cannot obtain compensation in any other way.

(2) If an official breaches his official duties in a judgment in a case, he is only responsible for the resulting damage if the breach of duty results in a criminal offense. In a wrongful refusal or delay in the exercise of their office, this provision does not apply.

(3) The duty of compensation shall not arise if the injured party intentionally or negligently failed to avert the damage by using an appeal.

3.24 § 839 BGB in conjunction with Art. 34 GG forms the basis of the liability of the public authorities by its transfer to the state and deals the external relationship with the citizen. Under these provisions, 'official liability' arises if public official breaches an official duty towards a third party, thereby causing harm to such third party be it a citizen or other legal entity. In terms of the examination scheme, the following 6 prerequisites must be fulfilled:

(i) Exercise of a public office by a public official;

(ii) Violation of a third-party duty;

(iii) Violation / breach of duty;

(iv) Imputability of the damage;

(v) No disclaimer and no limitation of liability; and

(vi) No statute of limitations 3.25 The aforesaid provisions lay down the consequences of unlawful and culpable administrative acts and justifies a claim for damages. The official liability initially includes the personal liability of the person acting for the State and for this purpose appointed by the State. This liability is then transferred to the State in accordance with Art. 34 GG. The official is thus liable himself and is subsequently relieved by the State. The misconduct of the official is therefore not considered a State wrongdoing. The State only assumes the guilt of the official. The State takes the place of the actually liable as a protective shield and compensates the affected citizen. The official liability is therefore not an immediate, but only an indirect State liability.

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