2.2.4. Conditions of Actions for Breach of Egalité

Liability in damages on the basis of breach of égalité is subject to a variety of general conditions. The most significant conditions relate to the nature of the ‘public burden’ which has been imposed upon the citizen. The main controlling element is the reference to normality: has the harm or disruption gone beyond that which an ordinary citizen must accept in the ordinary course of events?¹⁰⁵

The courts take many factors into account when determining whether the loss is abnormal. Some illustrations of this will be given. The length in time of the disruption caused to the claimant may be relevant.¹⁰⁶ In actions concerning authorities' failure to evict squatters pursuant to a court order, the delay is not considered abnormal until two months have passed.¹⁰⁷ In other situations the time period may be shorter, so in the case of the blockade of Calais, a mere twenty-four hours' delay in freeing the port was sufficient.¹⁰⁸ For cases of lost profits, the courts will investigate the impact on the business.¹⁰⁹ In two actions based upon the fact that a lawful decision to construct a dam had entailed a reduction in the number of people living in an area, a baker who had lost so much business that he used 50 per cent less flour could recover damages for abnormal loss,¹¹⁰ whereas a veterinary surgeon who experienced a 8.5 per cent loss in business was denied recovery.¹¹¹ In the end, however, no specific criteria for abnormality can be given, and in truth the courts have a good deal of room for manœuvre in applying this condition.¹¹²

(p.149) The loss must also be special. The public burden must have fallen upon a limited category of persons. Liability will not arise where measures are applied in a general manner rather than to a specific and restricted class of persons.¹¹³ The more people that are affected the less likely it is that the loss of each will be considered to be ‘special’.¹¹⁴ Certain types of claim are easier to prove in this respect than others. Refusals to evict squatters under a court order generally satisfy the speciality criterion, whereas claims deriving from the application of treaties often founder on this basis.¹¹⁵

There are other conditions which present significant obstacles to the recovery of damages. Some administrative measures will, by their very nature, create an unequal distribution of public charges,¹¹⁶ and no claim can thus be entertained.¹¹⁷ This applies particularly to measures concerning economic policy so, for instance, no action can arise from the restrictions on transfer of capital abroad designed to stabilize currency,¹¹⁸ or due to a tax regime which disproportionately affected the claimant.¹¹⁹

In common with other spheres of governmental liability, no damages will be granted where the claimant acted with awareness of (or ought to have been aware of) the risk of sustaining the loss which he or she eventually did.¹²⁰ Knowledge of risk is a common tool for negating no-fault liability.¹²¹ There are also indications of a restrictive approach to causation¹²² and limitations on quantum.¹²³

To conclude, the principle of égalité could have had a very broad application. To avoid this, the French courts have devised significant control mechanisms, specifically designed to restrict the impact of this principle (p.150) on the public purse.¹²⁴ The efficacy of these control mechanisms is revealed by the relatively few successful actions for breach of égalité.¹²⁵