The Provisions
Article 105 of the Introductory Law to the Civil Code (Introductory Law to the Civil Code, Legislative Decree 2783/1941, Government Gazette A΄/29, Presidential Decree 456/1984, Government Gazette A΄ 164) provides as follows: “For unlawful acts or omissions of State organs in the exercise of the public authority entrusted to them, the State is liable to pay compensation, unless the act or omission occurred in breach of a provision enacted solely in the public interest …”, and Article 106 of the same legislative instrument provides: “The provisions of the two preceding articles shall also apply to the liability of municipalities, communities or other legal persons governed by public law for acts or omissions of the organs serving them.”
Constitutional Foundation
According to Council of State (Plenary) decision 1501/2014:
“[A]rticle 4(5) of the Constitution, providing that ‘Greek citizens shall contribute without discrimination to public charges, in proportion to their means’, elevates equality before public burdens to a constitutional rule and at the same time constitutes a provision on which the compensatory liability of the State for acts of its organs causing damage is founded, whether unlawful (Council of State 980/2001) or lawful (Council of State 5504/2012).
This is because equality before public burdens requires the restoration of damage suffered by an individual as a result of action taken, in the public interest, by State organs, where such action is unlawful or where it is lawful but causes specific and substantial harm, to such an extent as to exceed the limits that are constitutionally tolerable in order to serve the public-interest objective pursued by that action, in accordance with the relevant legislation. The purpose of this provision, in the above sense, is fulfilled when compensation for such damage is made possible in cases of harmful action by any State organ.”
As regards State liability for lawful acts, see also Council of State 2387/2020.
THE CONDITIONS
From these provisions it follows that, in order for State liability for compensation to arise, the following conditions must cumulatively be met (Council of State 4410/2015, 237/2011 [seven-member formation], 322/2009 [seven-member formation], inter alia):
- a) an unlawful act or omission, or a material act or omission of a material act, by State organs in the exercise of the public authority entrusted to them,
b) the occurrence of damage, and
c) a causal link between the unlawful act or omission or material act or omission of a material act and the damage suffered.
A) Unlawful Act
State liability for compensation arises not only from the issuance of an unlawful enforceable administrative act or from the unlawful omission to issue such an act, but also from unlawful material acts of State organs or omissions of legally required material acts, provided that such acts or omissions are connected with the organization and functioning of public services.
Furthermore, subject to the fulfilment of the remaining statutory conditions, State liability exists not only where a specific statutory provision is breached by an act or omission of a State organ, but also where the specific duties and obligations laid down by the applicable legislation are neglected, as well as those duties which, according to common experience and good faith, are inherent in the particular public service (Council of State 2796/2006 [seven-member formation], 1019/2008, 877/2013 [seven-member formation], inter alia).
The unlawful nature of the harmful act, omission or material act, as described above, is sufficient to establish State liability, without any requirement to ascertain fault on the part of the organ concerned (Council of State 2727/2003, 1413/2006 [seven-member formation], inter alia).
B) Invocation and Occurence of Specific Damage
C) Causal Link
A causal link exists where, according to the rules of common experience, the act or omission is sufficiently capable (adequate) and objectively able, in the usual and normal course of events and without the intervention of another factor, to bring about the damage and did so in the specific case (Council of State 1024/2005, 334/2008 [seven-member formation], 322/2009 [seven-member formation], 473/2011, cf. Supreme Civil Court [Areios Pagos] 425/2006).
The merely formal nature of the defects of the act, omission or material act does not negate the causal link between it and the damage (Council of State 3400/2000, 3055/2007, 2270/2009, 2645/2014).
The existence of a causal link is not, in principle, precluded by the fact that contributory fault of the injured party also contributed to the result, provided that the causal link is not broken (Council of State 3124/2011, 877/2013 [seven-member formation], cf. Areios Pagos 1653/2001).
Moreover, Article 300 of the Civil Code, which applies to any compensation claim regardless of its cause, and therefore also to compensation under Article 105 of the Introductory Law to the Civil Code, provides:
“If the injured party contributed to the damage or its extent by his own fault, the court may refuse to award compensation or may reduce the amount thereof. The same applies where the injured party failed to prevent or limit the damage or failed to draw the debtor’s attention to the risk of unusually extensive damage, which the debtor neither knew nor ought to have known …”.
From this provision it follows that, where, on the basis of the factual findings accepted by the courts of first instance, fault on the part of the injured party exists — the existence of which constitutes a legal concept subject to review by the Council of State in cassation proceedings — it lies within the court’s discretion, after freely assessing the circumstances, including the degree of the injured party’s fault, to award full compensation, no compensation at all, or to reduce the amount of compensation (see Council of State 1408/2006, 2539/2008, 1970, 1974/2009; see also Areios Pagos 1483/1990).
However, the act of the injured party must have contributed to the occurrence of the damage, and a causal link must exist between the culpable act of the injured party and the occurrence or extent of the damage (see Areios Pagos 867/2001, 793, 1045/2007).
Furthermore, interruption of the causal link presupposes the intervention of subsequent, wholly exceptional and unforeseeable events, in particular acts of third parties (Council of State 2172/2007, 3124/2011, Areios Pagos 999/2010).
In addition, where successive harmful behaviors (acts, omissions or material acts) occur, characterized by a cohesive unity, the courts of first instance must examine, in accordance with the rules of common experience and logic, in order to determine whether a causal link exists between those behaviors and the damage suffered, each unlawful and harmful behavior not only individually but also cumulatively; that is, they must assess whether the unlawful and harmful behaviors found, taken as a single whole, were capable and adequate to bring about the harmful result (Council of State 4410/2015).
D) Breach of a Provision not Enacted exclusively in the Public Interest
According to Article 105 of the Introductory Law to the Civil Code and the relevant case law of the Council of State, State liability cannot be established in cases where a rule of law is breached from which no specific right of the injured private individual arises, provided that the breached rule was enacted exclusively and solely for the protection of the public interest.
Therefore, State liability is established where the breached rule of law was enacted, even partially, for the protection of the interests of a private individual.
Compensation
The State and public law legal persons are obliged, pursuant to Articles 105 and 106 of the Introductory Law to the Civil Code, to make good any actual loss or loss of profit, while the courts of first instance may, pursuant to Article 932 of the Civil Code, award reasonable monetary satisfaction for moral damage or, in the event of a person’s death, for mental anguish (Council of State 908/2022, 1152/2021, 2511/2017, 3414/2013).
JURISDICTION
Pursuant to Article 1 of the Code of Civil Procedure, the jurisdiction of the ordinary civil courts includes:
a) private law disputes, unless the law assigns them to other courts,
b) matters of voluntary jurisdiction assigned to them by law, and
c) public law matters assigned to them by law.
Pursuant to Article 2 of the same Code, civil courts are prohibited from intervening in administrative disputes or matters falling within the jurisdiction of administrative courts or authorities, just as administrative courts or authorities are prohibited from intervening in private law disputes or matters, with only incidental examination of issues being permitted.
Furthermore, by Article 1(1) and (2)(h) of Law 1406/1983 (Government Gazette 182/A΄/14-12-1983), administrative disputes on the merits arising from the application of legislation concerning the liability of the State, local authorities and public law legal persons for compensation under Articles 105 and 106 of the Introductory Law to the Civil Code were brought within the jurisdiction of the ordinary administrative courts, in accordance with Article 94(1) of the Constitution.
From the combined interpretation of the above provisions, it follows that the legislator, after the entry into force of Law 1406/1983, intended to assign to the ordinary administrative courts, pursuant to Article 94(1) of the Constitution, all administrative disputes on the merits which, within the framework of the public action of the Administration, arise from State liability for compensation. The relevant action for damages against the State is available both in cases of State liability arising from enforceable administrative acts of its organs or omissions to issue such acts, and in cases arising from material acts performed in connection with, or as a result of, the organization and functioning of the public service, and which are not linked to the private management of State property, nor attributable to personal fault of an organ acting outside the scope of its official duties (Supreme Special Court 5/1995, Areios Pagos 1992/2017, 397/2018, 1415/2017, 1/2021).
