The Law Aids the Vigilant, Not the Negligent: The Obligation to Use Primary Legal Remedies under Estonian State Liability Law

Author:Ene Andresen
Position:LL.M., Lecturer of Administrative Law University of Tartu
Pages:116-127
SUMMARY

1. The nature of the obligation to use primary legal remedies - 2. The purpose of the obligation to use primary legal remedies under Estonian state liability law - 2.1. Guaranteeing the primacy of the primary legal remedies under administrative law, and effectiveness of the system of legal protection - 2.2. Reduction of expenses in the public sector? - 3. The influence of the obligation to use... (see full summary)

 
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In many national legal orders, state liability law includes only claims for compensation and elimination of damage against public authorities1. Similarly, in European Union law, only claim for damages is covered under the liability of an institution or a member state of the European Union. In the Estonian State Liability Act 2 (hereinafter 'SLA'), on the other hand, the definition of state liability law is significantly broader. In addition to the claim for damage, state liability claims include numerous other claims, enabling the person to request the restoration of rights from a public authority3. Such legal remedies include, inter alia, primary legal remedies-that is, claims against unlawful administrative action as stated in Chapter 2 of the State Liability Act, by which the person may request the termination of a violation of his rights4.

Primary legal remedies have a substantial role in Estonian state liability law. According to § 7 (1) of the SLA, a person can claim for damages caused by unlawful administrative action only when the damage could not have been prevented by the obligatory primary legal remedies provided by law. Therefore, the obligation to use primary legal remedies is of importance in cases involving the claim for damages.

In Estonian court practice, the scope of application and content of the obligation to use primary legal remedies has been significantly broadened in relation to the provisions stipulated in the State Liability Act. In this article, the author analyses whether the purpose, content and scope of application of the obligation to use primary legal remedies attributed by the judiciary to this obligation are consistent with the constitutional requirements and the provisions of the State Liability Act.

Although this article focuses on analysis of the Estonian national law, it needs to be considered that the obligation to use primary legal remedies has a direct relationship with the European Union law. In relation to this, also the European Court of Justice decision in the Danske Slagterier case from 2009, in which the Court passed judgement on the admissibility of applying the obligation to use primary legal remedies in cases of member state liability, is examined in this article5.

1. The nature of the obligation to use primary legal remedies

The right to effective judicial protection provided in §§ 13-15 of the Constitution of the Republic of Estonia has to guarantee protection from unlawful actions of public authorities.

If a person finds that a public authority has violated his or her rights under a public-law relationship, he or she can decide whether to protect his or her rights. In the case of opting for protection of his or her rights, the person, under the principle of the freedom to choose the legal remedy, may also determine at his or her discretion what legal remedy he or she wishes to use to protect his or her rights6. However, state liability law sets some limits to this freedom of decision. If the person wishes to claim for damages caused by unlawful administrative action, he or she cannot previously have chosen whether to protect his or her rights or not. That is to say that under Estonian state liability law, there is an obligation to use primary legal remedies. In accordance with this obligation, the person who wishes to file a claim for damages caused by unlawful administrative action against a public authority must try to prevent such damage or to eliminate the damage already caused through timely contesting of the action of the public authority. The obligation to use primary legal remedies is provided in § 7 (1) of the State Liability Act:

A person whose rights are violated by the unlawful action of a public authority in a public-law relationship (hereinafter 'injured party') may claim for damages caused to this person if the damage could not be prevented and cannot be eliminated by the protection or restoration of rights in the manner provided for in §§ 3, 4, and 6 of this Act.

The obligation to use primary legal remedies is not characteristic of Estonian state liability law only. For instance, a similar obligation is set forth in German and Austrian state liability law7. However, the obligation to use primary legal remedies has some particular characteristics in Estonian law. Unlike the § 839 (3) of the German Civil Code (hereinafter 'BGB') and § 2 (2) of the Austrian Liability of Public Bodies' Act, which do not specify what kind of legal remedies should be applied to prevent damage, the Estonian State Liability Act specifically enumerates these primary legal remedies. From the obligatory primary legal remedies, a person can file a claim for annulment of an administrative act (under SLA § 3), claim for termination of a measure (SLA § 4), claim for issue of an administrative act (SLA § 6), or claim for taking of a measure (SLA § 6). These are the claims that enable to request the termination of a violation of rights by a public authority through elimination of unlawful administrative action.

2. The purpose of the obligation to use primary legal remedies under Estonian state liability law

The reason the above-mentioned primary legal remedies belong under state liability claims lies in the purpose of the obligation to use primary legal remedies. Explaining the purpose of this obligation is an inevitable precondition for determining the contents of the obligation.

2.1. Guaranteeing the primacy of the primary legal remedies under administrative law, and effectiveness of the system of legal protection

One of the main purposes in the elaboration of Estonian modern state liability law was to assign to the primary administrative legal remedies the primary role in relation to the claim for damages caused by unlawful administrative action8. By virtue of the state's obligation to ensure protection of the fundamental rights of persons, the legislator has created an extensive system of legal remedies, enabling persons to file claims for restoration of rights violated by unlawful administrative action. By establishing the obligation to use primary legal remedies, the legislator aimed for a situation in which, under administrative law, restoration of a person's violated rights would take place first by elimination of unlawful administrative action, with compensation for the damages caused by violation of such rights being the last resort9. Primary legal remedies have unquestionable advantages over legal remedies enabling purely monetary compensation, helping to stop the violation and to prevent even wider violation of rights in the future through actions based on an unlawful act or measure. Primary legal remedies enable restoring legality and avoiding future legal disputes. Therefore, obligatory primary legal remedies serve in the interest of the effectiveness of the system of legal protection.

Although the obligation to use primary legal remedies is, in a wider meaning, an expression of the obligation to prevent damage, it carries, as mentioned above, a narrower role that is specific to and characteristic of administrative law10. However, the obligation to prevent damage that is recognised as a general principle of law has the same meaning in Estonian state liability law and delict law11.

Regardless of the fact that, through the obligation to use primary legal remedies, restoration of a person's violated rights is supported, this obligation still proves burdensome for a person. The person has to decide in quite a short period of time whether to protect his or her rights, and to choose the primary legal remedy, in order to request the termination of the violation of his or her rights, and thereby drawing the public authority's attention to that violation. If the person does not consider the violation to be serious enough to decide to protect his or her rights with an appropriate primary legal remedy, he or she generally forfeits a later opportunity to file a claim for damages caused by violation of rights by the public authority concerned.

On account of the burdensome nature of the obligation to use primary legal remedies, it is important to emphasise the impact of this obligation on the exercise of fundamental rights. Section 7 (1) of the SLA provides, besides the obligation to use primary legal remedies, also a right of claim for damages. The right to file a claim for damages caused in a public-law relationship by a public authority is aimed at realisation of the fundamental right to compensation for damage stated in § 25 of the Constitution of the Republic of Estonia12. However, the obligation to use primary legal remedies constitutes a restriction...

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