Liability of civil servants under German law
Definition and classification
Die Liability of the civil servant refers under German law to the civil, criminal, and disciplinary consequences that may result from a breach of official duty by a civil servant. As part of the public service, civil servants are subject to special legal framework conditions concerning their responsibility. Their liability differs significantly from the legal position of employees in the private sector and in particular covers official and state liability, recourse liability vis-à-vis the employing body, as well as criminal and disciplinary consequences.
Legal basis
The relevant legal basis can be found in the Basic Law (Art. 34 GG), the German Civil Code (BGB), the Civil Servant Status Act (BeamtStG), the Federal Civil Servants Act (BBG), as well as the respective state civil servant laws and disciplinary laws. The specific liability provisions take into account the prominent position and responsibility of civil servants in preserving the public interest.
Types of civil servant liability
1. State liability and official liability
Official liability pursuant to § 839 BGB in conjunction with Art. 34 GG
According to § 839 BGB, a civil servant who breaches an official duty owed to a third party is generally personally liable for damages. However, this principle is significantly modified by Art. 34 GG: In the exercise of a public office, the civil servant’s personal liability is, as a rule, superseded by the liability of the state or public body in which the civil servant serves. The injured party may direct their claim for damages directly against the state or the public body (so-called piercing liability). Personal liability is generally excluded.
Exceptions to this principle exist in cases of intentional or grossly negligent breach of official duty. In these cases, the employer can pursue recourse against the civil servant (§ 839 para. 1 sentence 2 BGB).
Requirements for official liability
For state liability to arise, the following conditions must be met:
- Civil servant’s exercise of public office
- Breach of official duty
- Unlawfulness of the act
- Fault on the part of the civil servant (intent or negligence)
- Causal damage to a third party
No liability arises if special statutory liability privileges apply or if the injured party has willfully failed to take another course to mitigate the damage (§ 839 para. 1 sentence 2 BGB).
2. Recourse liability vis-à-vis the employer
The employer (federal government, states, municipalities) may, under certain circumstances, claim recourse from a civil servant internally if the civil servant caused damage through intentional or grossly negligent breach of official duty. Applicable regulations can be found in § 48 BeamtStG and § 75 BBG.
Conditions for recourse are:
- Breach of official duty
- Fault (intent or gross negligence)
- Damage to the employer
In cases of simple negligence, recourse claims are generally excluded in order to safeguard the personal responsibility and decision-making freedom of civil servants in the public interest.
3. Disciplinary responsibility
Regardless of civil liability consequences, a breach of official duty can also trigger disciplinary action. According to the disciplinary laws of the federal and state governments, this can result in disciplinary measures such as reprimand, fines, reduction of salary, demotion, removal from service, or forfeiture of pension rights.
Disciplinary proceedings are conducted by the respective disciplinary authority independently of civil or criminal proceedings and aim to maintain lawful and proper conduct in office.
4. Criminal liability
Civil servants are also criminally liable in the course of their work. If they commit criminal offenses while on duty—such as bribery (§ 332 StGB), acceptance of benefits (§ 331 StGB), or other offenses (e.g., bodily harm in office, § 340 StGB)—they are prosecuted like any other person. As a rule, criminal convictions will also have disciplinary consequences.
Special liability situations
Liability for colleagues (organization and supervision)
Liability for another public official’s conduct may arise if a supervisory duty existed and its breach enabled the damage. The prerequisite is that the omission of necessary control or instruction was causal.
Liability in administrative actions and compliance with instructions
Civil servants are generally not personally liable when following instructions unless they fail to comply with an obvious legal duty to refuse the instruction (duty of remonstration, § 36 BeamtStG).
Liability in relation to private third parties
When tasks are transferred to delegated persons or private individuals, the liability situation remains analogous to state official liability, provided that public-law duties are being performed.
Limits of liability and liability privileges
Limitations of liability
A civil servant’s personal liability is basically limited to cases of intentional or grossly negligent breaches of duty. Privileges apply for simple negligence. Contributory negligence by the injured third party (e.g. under § 254 BGB) or failure to pursue legal remedies may also reduce or exclude liability.
Official liability insurance
Many employers offer civil servants the option to purchase official liability insurance to safeguard against the risk of recourse in cases of gross negligence.
Significance and aims of the liability provisions
The complex liability provisions for civil servants serve to balance the need to protect the general interest in a functioning administration with effective service supervision and personal integrity of public officials. Limiting personal liability is an essential prerequisite for proper and independent office performance, without allowing unlawful conduct to go unsanctioned.
Literature and further legal sources
- Art. 34 Basic Law for the Federal Republic of Germany
- § 839 German Civil Code
- § 48 Civil Servant Status Act
- § 75 Federal Civil Servants Act
- Federal Disciplinary Act and state disciplinary acts
- Criminal Code (e.g., §§ 331 et seq., 340 StGB)
Conclusion: The liability of civil servants in German law is shaped by a complex interplay between civil, criminal, and disciplinary law. The state is primarily liable; only in exceptional cases can the civil servant be personally held responsible. This ensures the rule-of-law balance between protecting the administration and safeguarding the interests of those injured.
Frequently Asked Questions
When is a civil servant personally liable for mistakes in the exercise of official duties?
A civil servant is personally liable for mistakes in the exercise of official duties only when the official duties are breached intentionally or with gross negligence. Personal liability is significantly more limited than that of employees in the private sector in order to ensure the administration’s functionality and to protect civil servants from excessive liability risks. If a civil servant is alleged to have breached a duty, it is first examined whether the act or omission violated a legal provision or official instruction. Should that be the case, the civil servant is directly liable to the injured party only if specific statutory provisions (e.g., § 839 BGB in conjunction with Art. 34 GG) permit such direct liability. Otherwise, official liability applies, whereby the public body (i.e., federal, state, or municipality) is responsible for the civil servant’s conduct. This means that claims for damages must be directed at the employer first. Only in cases of intentional or grossly negligent breach may the employer take recourse against the civil servant under so-called regress. Mere negligence is generally not sufficient for personal liability.
What is meant by official liability, and how does it differ from the civil servant’s personal liability?
Official liability means the responsibility of the state or the respective public-law body for damages caused by civil servants, judges, or other public officials in the exercise of their office (§ 839 BGB in conjunction with Art. 34 GG). In official liability, the claim for damages is not asserted directly against the individual civil servant, but against the public body with which the civil servant is employed. The civil servant is generally not directly liable to the injured party, unless he acts outside his official duties or commits intentional, immoral harm (§ 826 BGB). The main distinction between personal liability and official liability is that civil servants are protected by the public body while performing their official duties, and the employer is initially responsible for their misconduct. Recourse against the civil servant by the employer— as noted above— is only considered in cases of intent or gross negligence.
When can recourse (regress) by the public body be taken against the civil servant?
Recourse by the public body against the civil servant requires that the civil servant has breached official duties intentionally or with gross negligence and that the employer has suffered damage as a result (§ 48 BeamtStG or § 75 BBG). The public body has discretion; that is, it can, but does not have to, claim recourse in every case. Gross negligence exists where the civil servant disregards the required standard of care to a particularly serious extent— in other words, fails to consider what should be obvious to anyone. If only simple negligence is present, there is no recourse option. In the event of recourse, the individual circumstances are considered, including the civil servant’s financial capacity and the severity of the breach.
Are civil servants internally liable to the employer?
Yes, in the internal relationship between the civil servant and the employer, liability may exist if the civil servant has culpably—i.e., intentionally or with gross negligence—breached official duties and thereby caused a financial loss. This liability is regulated by law and serves to protect the employer against serious breaches of duty, but the need for efficient and low-risk office performance must always be considered. Claims for compensation must be asserted by the employer. The extent of liability may be mitigated or excluded, particularly in consideration of personal circumstances, degree of fault, and the civil servant’s financial situation.
What special issues apply to the liability of civil servants under criminal and disciplinary law?
Regardless of civil liability, a civil servant may also be held criminally or disciplinarily accountable for official misconduct. Office-related criminal offenses (e.g., acceptance of benefits, forgery, bodily harm in office) are prosecuted under general laws. In addition, breaches of duty may also result in disciplinary measures such as fines, demotion, or, in the most serious cases, removal from office. Criminal or disciplinary responsibility may exist in parallel with (official) liability and does not necessarily depend on an obligation to pay damages, but rather on the respective misconduct and its effects on the employment relationship.
Are there differences in liability between civil servants and public sector employees?
Yes, there are significant differences in liability law between civil servants and employees. Civil servants are largely privileged and protected from direct claims by injured parties by the official liability system described above, whereas public sector employees are liable under the general principles of civil law, especially § 823 BGB. This means public employees can be personally liable to third parties in the event of intentional or negligent damage. However, recourse can be taken against the employer internally. The civil servant liability privilege under Art. 34 GG and § 839 BGB does not apply to employees; they are subject to general liability law.
What should be considered regarding compensation claims by citizens against civil servants?
Citizens who consider themselves harmed by an official act of a civil servant must generally assert their claims for damages against the employer (public body), not directly against the civil servant. The prerequisite is that an official duty towards a third party has been culpably breached and that a causal damage has occurred. Claims for damages can relate in particular to financial losses and, under certain conditions, also to non-material damages. It is important that citizens’ liability claims generally remain limited to official liability, unless the civil servant acts outside his official duties or commits an intentional, immoral act (§ 826 BGB). In rare exceptional cases, direct liability of the civil servant towards the citizen may thus also exist.
