Amtshaftung und Wirtschaftsüberwachung durch Private

Abstract

Public Liability and Monitoring of the Economy by Private Persons

Economic supervision is a traditional function that is performed by state departments. However, the state has started to include private persons in the performance of this task. If such private persons cause any damage in the performance of their duties, the question arises whether the state can be held liable for the damages caused. The centre of attention is the public liability claim (paragraph 839 German Civil Code in connection with article 34 German Basic Law). According to article 34 sentence 1 German Basic Law the state is liable if a person, in the exercise of a public office entrusted to him, violates his official duty to a third party. Also private persons can hold official positions according to the same provision. Nevertheless the conditions that have to be in place in order to establish liability for a private person holding an official position are controversial. The German Federal Court of Justice dealt with this topic in several rulings and established a constant jurisdiction that should be viewed critically. This article demonstrates deficits in the court's jurisdiction and outlines alternatives. The article shifts the discussion towards categories of administrative law in order to answer the question whether a private person holds an official position. In particular, it is argued that clear identification criteria are needed in order to simplify the use of those categories.