Karlsruhe Higher Regional Court, 18 December 2012, Ref.: 12 U 105/12
The responsibility of a public official (e.g. a civil servant or public sector employee) for damage caused to third parties during the performance of their duties is commonly referred to as "official liability". Official liability therefore refers to the liability of the state and its civil servants.
Official liability is standardised in Section 839 BGB in conjunction with Art. 34 GG. The legal recourse for the assertion of official liability claims is generally not the administrative legal recourse, but the civil legal recourse, Art. 34 S. 3 GG in conjunction with § 40 para. 2 sentence 1 VwGO. Irrespective of the amount in dispute, the regional courts always have jurisdiction, § 1 ZPO in conjunction with § 71 Para. 2 No. 2 GVG.
The following conditions must be met for a claim for official liability to exist:
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- Acting in the exercise of a public office
- Breach of official duty
- Third-party relatedness
- Fault
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If these conditions are met, the responsibility does not generally lie with the civil servant himself (i.e. the natural person), but with the state or the corporation in whose service he is employed.
However, in the event of intentional or grossly negligent behaviour on the part of the acting civil servant, the state may be entitled to recourse against the civil servant.
In the above-mentioned judgement of the Higher Regional Court of Karlsruhe, the court had to decide whether a woman who switched to a health insurance company after being promised cost coverage had an official liability claim against this health insurance company when it turned out that the health insurance company still did not want to cover the costs.
Facts of the Case:
The plaintiff, who already had health insurance, switched to the defendant as her statutory health insurer after a counselling interview with the defendant's employee.
Plaintiff switched to the employee's health insurance on the advice of the employee
The costs incurred by the plaintiff for her medical care, in particular from cancer treatment on a naturopathic basis, costs for dietary supplements, dental cleaning, practice fees and co-payments for massages and medication, were submitted to the defendant via the employee, who paid the invoices from his private assets, as the costs claimed were not covered by the scope of benefits of the statutory health insurance.
Employee paid the costs not covered by the defendant from his private assets
After considerable payment arrears occurred in 2008, the reimbursement of costs finally failed to materialise in 2010, whereupon the plaintiff turned to the defendant, who thus became aware of the facts for the first time and refused to assume the costs.
The regional court that was initially called upon ordered the health insurance company to pay
The Regional Court, to which the plaintiff then appealed, ordered the defendant health insurance fund to pay the outstanding treatment costs as well as a proportionate share of the legal fees on the basis of the plaintiff's existing official liability claims against the defendant health insurance fund.
The defendant appealed against this judgement to the Karlsruhe Higher Regional Court.
Judgement of the Karlsruhe Higher Regional Court:
The OLG Karlsruhe also saw a claim for damages on the part of the defendant
The Karlsruhe Higher Regional Court confirmed the judgement of the Regional Court and also ruled that the plaintiff was entitled to claim damages from the defendant in the amount of EUR 2,533.18 pursuant to Section 839 BGB in conjunction with Article 34 GG:
The defendant, as the carrier of the statutory health insurance, is the party obliged to make a claim under § 839 para. 1 BGB in conjunction with Art. 34 GG.
Pursuant to § 4 para. 1 SGB V, the defendant is a public corporation whose activities as a public social insurance institution are to be classified as sovereign benefit administration.
This means that the general principles on the provision of information in the sovereign area (Staudinger/Wöstmann (2012), BGB, Section 839 para. 785) would also apply to the provision of information and the decision on applications and enquiries in this area.
Whether a person's actions constitute the exercise of a public office is determined by whether the actual objective in the sense of which the person concerned is acting can be attributed to sovereign activity and whether there is such a close external and internal connection between this objective and the harmful act that the act must also be regarded as still belonging to the area of sovereign activity.
It is not the person of the acting party that is to be taken into account, but his function, i.e. the task which the activity carried out in the specific case serves to fulfil (BGH VersR 2006, 1684 ; OLG Hamm, Urt. v. 5 June 2009 - 11 U 193/08 - RdL 2010, 128 - juris para. 23).
When performing the tasks assigned to it in the area of statutory health insurance, the defendant or its responsible officials - irrespective of whether they have civil servant status or are in another employment relationship and are therefore (merely) to be regarded as civil servants in the sense of liability law - are obliged to (Palandt/Sprau, BGB, 71st edition, 2012, § 839 Rdnr. 15) - the obligation to act in accordance with the law.
Health insurance company must take responsibility for the employee's incorrect advice
According to § 14 SGB I, social benefit providers are obliged to provide the insured person with accurate advice on their rights and obligations under statutory health insurance. Information and instructions must always be provided correctly, clearly, unambiguously, clearly and completely (BGH NJW 1994, 2087 - juris para. 43).
The counselling activities of the witness K in the run-up to the plaintiff's transfer to the defendant and the subsequent counselling activities of the witness K within the framework of § 14 SGB I were to be regarded as sovereign acts.
The obligation to provide correct advice would also be in the interests of the plaintiff as a protected "third party" within the meaning of Section 839 BGB.
In principle, the citizen may assume the "legality of the administration" (BGH NJW 1994, 2087 - juris Tz. 30; BSGE 44, 114 (121); BGH NJW 2003, 3049 - juris Tz. 8).
Source: Karlsruhe Higher Regional Court
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