https://doi.org/10.31261/PPPM.2013.13.03
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.
Download files
Citation rules
Cited by / Share
Licence
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
The Copyright Owners of the submitted texts grant the Reader the right to use the pdf documents under the provisions of the Creative Commons 4.0 International License: Attribution-Share-Alike (CC BY-SA). The user can copy and redistribute the material in any medium or format and remix, transform, and build upon the material for any purpose.
1. License
The University of Silesia Press provides immediate open access to journal’s content under the Creative Commons BY-SA 4.0 license (http://creativecommons.org/licenses/by-sa/4.0/). Authors who publish with this journal retain all copyrights and agree to the terms of the above-mentioned CC BY-SA 4.0 license.
2. Author’s Warranties
The author warrants that the article is original, written by stated author/s, has not been published before, contains no unlawful statements, does not infringe the rights of others, is subject to copyright that is vested exclusively in the author and free of any third party rights, and that any necessary written permissions to quote from other sources have been obtained by the author/s.
If the article contains illustrative material (drawings, photos, graphs, maps), the author declares that the said works are of his authorship, they do not infringe the rights of the third party (including personal rights, i.a. the authorization to reproduce physical likeness) and the author holds exclusive proprietary copyrights. The author publishes the above works as part of the article under the licence "Creative Commons Attribution-ShareAlike 4.0 International".
ATTENTION! When the legal situation of the illustrative material has not been determined and the necessary consent has not been granted by the proprietary copyrights holders, the submitted material will not be accepted for editorial process. At the same time the author takes full responsibility for providing false data (this also regards covering the costs incurred by the University of Silesia Press and financial claims of the third party).
3. User Rights
Under the CC BY-SA 4.0 license, the users are free to share (copy, distribute and transmit the contribution) and adapt (remix, transform, and build upon the material) the article for any purpose, provided they attribute the contribution in the manner specified by the author or licensor.
4. Co-Authorship
If the article was prepared jointly with other authors, the signatory of this form warrants that he/she has been authorized by all co-authors to sign this agreement on their behalf, and agrees to inform his/her co-authors of the terms of this agreement.
I hereby declare that in the event of withdrawal of the text from the publishing process or submitting it to another publisher without agreement from the editorial office, I agree to cover all costs incurred by the University of Silesia in connection with my application.
Vol. 13 (2013)
Published: 2013-12-31
10.31261/PPGOS
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
English
Język Polski