CH-NE
Law on the Liability of Public Authorities and Their Agents (Liability Law) (LL), of September 29, 2020 - Purpose (LHG)
Table of Provisions (41)
Statutory Text (41 Articles)
1. This law regulates
a) the liability of the public entity for acts committed by its agents in the exercise of their duties;
b) the liability of agents towards the public entity for damages they cause to it in the exercise of their duties.
2. By "public entity," it is meant the State, the Grand Council, the Council of State, judicial authorities, as well as municipalities and other bodies of cantonal, communal, or intercommunal public law.
3. By "agent," it is meant any member of the public entities as defined in the previous paragraph, as well as any other person entrusted with carrying out a public law task.
The public authority is not liable for opinions expressed during a parliamentary debate or in committee by a member of a legislative or executive authority.
Federal private law provisions are applicable as supplementary law.
Federal law is reserved, as well as the special provisions of cantonal law in the matter.
1. The public authority is liable for damage wrongfully caused to a third party by its agents in the exercise of their duties, regardless of any fault on the part of the agents.
2. It is not liable for damages resulting from decisions or judgments that have acquired the authority of res judicata.
3. Decisions and judgments that are modified upon appeal only incur the liability of the public authority if they are arbitrary.
Under the conditions provided by the law of obligations regarding unlawful acts, a fair compensation may also be awarded, in case of the agent's fault, as moral reparation.
1. When a third party suffers bodily injuries or dies as a result of police measures intended to avert a danger likely to disturb public order or security, the public authority is liable for the damage to the extent justified by equity.
2. The compensation is reduced or eliminated if the victim was the cause of the measures taken or contributed through gross negligence to the occurrence or worsening of the damage.
The injured party has no action against the liable agent.
The action against the public entity is subject to the statute of limitations in accordance with the provisions of the Code of Obligations regarding unlawful acts.
The public body that has compensated for the damage has a recourse action against the responsible agent who caused it intentionally or through gross negligence, even after the termination of the service relationship.
The action is exercised by the executive body of the concerned public entity.
**Article [Number]: Regress Action of Public Authorities**
The regress action of a public authority is subject to a prescription period of three years, starting from the day of acknowledgment or judicial determination of its liability. However, in all cases, it is subject to a prescription period of ten years, or, in the event of death or bodily injury, twenty years, starting from the day the harmful event occurred or ceased.
1. The agent is liable for any damage caused to the public authority in the performance of their duties, due to intentional misconduct or gross negligence.
2. When multiple agents have jointly caused the damage, they are required to compensate for it proportionally to their fault.
1. The action is exercised by the executive body of the concerned public entity.
2. It is subject to a statute of limitations and its modalities are governed according to the provisions of the law of obligations concerning illicit acts.
When the agent assumes primary liability under federal law for damages caused to a third party, the injured party may take action against the public entity.
The Public Entity's Right of Recourse Against the Responsible Agent is governed by Articles 11 to 13.
When the agent who bears primary liability under federal law has compensated the damage caused to a third party, they have a right of recourse against the public entity even after the termination of their service relationship, unless the damage results from intentional misconduct or gross negligence.
The recourse action of the agent is prescribed by three years from the day of the acknowledgment or judicial establishment of their liability, but, in all cases, by ten years or, in the case of death or bodily harm, by twenty years from the day the damaging event occurred or ceased.
Claims not exceeding 30,000 francs must be addressed
a) to the department designated by the Council of State, if they concern damages resulting from the activities of state agents;
b) to the executive body of other public entities, if they concern damages resulting from the activities of agents associated with one of them.
1. The Administrative Procedure Act (APA), of March 18, 2025, is applicable.
2. The request must be substantiated in writing and indicate the conclusions, as well as any potential means of evidence.
3. The public authority acknowledges the facts ex officio. It consults the body concerned and proceeds, if necessary, with the administration of evidence.
1. If the claim is justified in principle, the public authority enters into negotiations with the claimant.
2. In the event of an agreement, the settlement has the effects of a decision that has come into force.
3. If no agreement is reached, the public authority issues a decision pursuant to Article 23.
1. If it disputes all or part of the claims, the public authority issues a decision within the meaning of the APA.
2. An appeal may be filed against this decision with the Cantonal Court within 30 days.
[2] 1 Articles 65, 66, 68 and 71 LPA are applicable.
2. The fees are determined in accordance with the provisions of the law establishing the tariff of costs, chancery fees, and expenses in civil, criminal, and administrative matters (LTFrais), dated November 6, 2019 [3], applicable to civil procedures.
3. The requesting party who entirely or partially succeeds in their claim is entitled to costs in accordance with Article 72 LPA.
Claims exceeding 30,000 francs must be submitted to the cantonal commission for the liability of public authorities.
1. At the beginning of each administrative period, the Council of State appoints the commission of six to eight members with diverse qualifications.
2. Among the members thus appointed, the Council of State designates the president and the deputy president, who must be members of the judicial order.
1 The committee sits with three members. The chairperson selects two members to assist in handling each case, depending on its nature.
2. The chairperson appoints the secretary, who may be selected from outside the committee.
The members of the commission and the secretary are compensated according to a rate set by the Council of State.
1. The Administrative Procedure Act (APA), dated March 18, 2025, is applicable.
2. The application must be substantiated in writing and indicate the claims, as well as any potential evidence.
1. As soon as it is seized, the commission notifies the concerned public authority of the request and simultaneously summons the parties to a conciliation hearing.
2. The commission may, beforehand, order an exchange of written submissions between the parties or the administration of evidence, such as the establishment of an expert report.
1. The commission endeavors to reconcile the parties.
2. If one of the parties fails to appear, the conciliation is deemed to have failed.
3. The public authority may be accompanied at the session by an external third party not associated with its organization.
4. The commission may, with the consent of the parties, suspend the conciliation process and order the administration of evidence that might impact the discussions.
1. If conciliation is not successful, the proceedings shall continue.
2. The commission shall investigate the case and establish the facts ex officio.
3. The commission may attempt conciliation again based on the new evidence collected.
1. Once the investigation is completed, the commission shall decide by a majority of votes and issue a decision in accordance with the APA.
2. Its decision must be made within six months from the closure of the investigation.
3. An appeal against this decision may be filed with the Cantonal Court within 30 days.
[4] 1 Articles 65, 66, 68, and 71 LPA are applicable.
2. The party that entirely or partially wins the case is entitled to costs in accordance with Article 72 LPA.
1. The agent against whom a recourse action by a public entity may be considered is notified by the public entity as soon as a third party has made a claim against it.
2. He may intervene in the proceedings initiated by the third party against the public entity.
1. The public authority against which a recourse action may be considered by an agent personally implicated under federal law by an injured third party shall be notified as soon as the third party makes a claim against him.
2. It may intervene in the trial initiated by the third party against the agent.
The public authority and the implicated agent are responsible for the harmful consequences of any delayed information.
When an agent is personally implicated under federal law by an injured third party, the costs incurred for their defense shall be borne by the public entity to which they belong, unless the agent is found to be liable for intentional misconduct or gross negligence.
The Administrative Procedure and Jurisdiction Act (APJA), of June 27, 1979, is amended as follows
The Law on the Liability of Public Authorities and Their Agents (Liability Law) (LResp), dated June 26, 1989 [5], is repealed.
**1. Subject to paragraph 2, this Act applies to damage occurring prior to its coming into force, provided that the limitation period has not expired under the previous law.**
2. This Act applies to all cases pending on the day it comes into force. The relevant cases are automatically transferred by the authority handling the case to the cantonal commission for public entity liability. However, if before the enactment of this Act, the public entity has contested the claims under Article 11, paragraph 2, of the previous law, the latter remains applicable.
1. This law is subject to an optional referendum.
2. The Council of State shall provide for the promulgation and execution of this law if necessary. It shall set the effective date.
Law promulgated by the Council of State on February 3, 2021.
The effective date is set for October 1, 2021.