State liability; Tortious liability of public authorities; Acta iure imperii; Law applicable to non-contractual obligations
Problemy Prawa Prywatnego Międzynarodowego, 2013, t. 13, s. 61-86
Tortious liability for damages resulting from acta iure imperii is expressively excluded from the scope of the Regulation No 864/2007 on the Law Applicable to Non-Contractual Obligations (Rome II). However, some authors express the view that claims against the public authority fall outside the scope of Rome II Regulation on the ground of not being a matter of civil law. According to this approach, ‘governing bodies’ liability is regarded as the domain of public law. Nevertheless, recent developments tend towards different characterization of claims resulting from acta iure imperii. Therefore, in extraterritorial situations it becomes necessary to determine, which law applies under national conflicts rules. Polish Private International Law Act of 4th February 2011 provides a special rule which designates the law applicable in cases involving tortious liability of public authorities. According to article 35, civil liability for acts and omissions of the entities which are engaged in a public authority in the given country shall be subject to the law of that country. Scope of this rule is limited only to these acts and omissions of public bodies, which occurred within the territory of the authority on whose behalf these bodies acted. Hence, transborder activity of the public authorities does not fall within the scope of article 35. Nevertheless, in certain situations it may be necessary to determine the law applicable. Polish Private International Law Act of 2011 is not clear on that issue. There are several possible solutions. Firstly, extraterritorial act and omissions of public authorities can be seen as acta iure gestionis. Secondly, wrongful acts which occurred outside the host’s territory can be treated as public in nature. Thirdly, these wrongful acts can be characterized as “non-contractual obligations” in meaning of article 33. Therefore, the law applicable shall be designated by the provisions of Rome II Regulation. Finally, it may be considered that these situations do not fall within the scope of application of any of the national conflicts rules. This would lead to a conclusion, that there exists a regulatory lacuna, which must be fulfilled with supplementary rule on the conflict of laws. Consequently, the proper law shall be designated pursuant to article 67. It is thought necessary to determine the country most significantly connected with the given legal relationship. Similar approach is characteristic for German and Austrian private international law doctrine. This solution will be probably followed by Polish courts.