2.2.1. Legislation and Compensation

Originally, it was held that liability of the state could not be incurred on the basis of loss caused by a legislative act.⁷² The sovereignty of the legislature precluded the granting of damages.⁷³ The Conseil d'Etat changed its mind in the famous La Fleurette case in 1938. Liability in damages was (p.145) recognized for loss caused to a dairy by a law banning the production and sale of an artificial cream.⁷⁴ The decision was underpinned by the principle of equality in bearing public burdens.⁷⁵

The potential for loss caused by legislation is huge. But the strict conditions governing this form of no-fault liability have in fact made it difficult for claimants to gain any reparation for loss-causing statutes:⁷⁶ only a handful of claims have actually succeeded.⁷⁷ Various reasons explain the dearth of successful actions. In addition to applying the general conditions governing no-fault liability for breach of égalité, which we will examine below,⁷⁸ the courts have also shown deference to the intention of the legislature. As most statutes are silent on the issue of compensation,⁷⁹ it has been left to the courts to interpret the relevant legislation. The courts have generally concluded that the legislative intention was not to grant compensation.⁸⁰ One commentator has argued that in the absence of express recognition of a right to compensation there now seems to be a presumption against actionability.⁸¹ Various reasons have been given for finding that the legislative intention was not to give rise to an action. It has been argued that the legislature intended that the loss be offset by other forms of compensation,⁸² that the loss was inevitably caused by the legislation,⁸³ and that liability would be inconsistent with the overriding objective of the legislation.⁸⁴

Other reasons also explain the small number of successful claims for loss caused by legislation. Some have been rejected on the basis of absence (p.146) of causal link,⁸⁵ and others excluded for lack of the requisite certainty of loss.⁸⁶

2.2.2. Liability Arising from Treaties

Liability for abnormal loss caused by legislation has been extended to loss caused by the conclusion and ratification of international treaties.⁸⁷ Again, such claims have rarely been successful.⁸⁸ Only in one case have claimants gained compensation:⁸⁹ for loss caused to a landlord due to the diplomatic immunity accorded by treaty to a UNESCO worker who refused to pay increased rent.⁹⁰

2.2.3. Liability for Lawful Administrative Acts

A corollary of the illegality-fault parity in French administrative law is that a lawful administrative decision cannot give rise to administrative fault.⁹¹ Liability may nonetheless be incurred on the basis of lawful decisions under the doctrine of equality before the public burdens.

The genesis of this head of no-fault liability was the classic case of Couitéas, where liability arose from the failure of the authorities to evict trespassers from land.⁹² No faute was found as the authorities had legitimately feared serious public disorder if they implemented the eviction order. Damages were nonetheless awarded on the basis of no-fault liability.

This has been developed to become, in practical terms, the most important manifestation of liability for breach of égalité.⁹³ The situations which (p.147) give rise to liability for lawful decisions are many and varied.⁹⁴ They are best viewed as a series of diverse but linked pockets of liability.⁹⁵

The most common claims for breach of égalité are in fact extensions of the Couitéas case, where liability is found for the failure of the administration to enforce court orders.⁹⁶ The refusal to enforce an eviction order can give rise to breach of égalité,⁹⁷ and liability has also been imposed when the forces of law and order have failed to expel illegal strikers from business premises.⁹⁸

Linked to this category of responsabilité sans faute is liability for breach of the obligation to ensure that highways, ports, and rivers can be used freely. So the owners of an English ferry which was physically prevented from entering St Malo port by disgruntled French sailors could recover damages from the port authorities who had considered that it was unsafe to tackle the blockaders.⁹⁹ A similar result was also reached when French fishermen blockaded Calais.¹⁰⁰

The state can also be found liable for neglecting to fulfil its obligation to enforce statutes and regulations, though there are fewer cases brought under this head of liability.¹⁰¹ An example of a successful action is found in Navarra, when a property owner sued for loss caused by the failure of a Prefect to enforce planning regulations.¹⁰²

(p.148) These examples of claims for breach of égalité arising from lawful decisions are by no means exhaustive. Miscellaneous other cases have also occurred.¹⁰³ But these are a good representative sample of the claims brought under this head of no-fault liability.¹⁰⁴