The legal regime is more complex than it might seem at first glance. The Romanian Constitution guarantees, in Article 52, the right of any person harmed by a public authority to obtain compensation, while the state or the authority has, in turn, a right of recourse against the official at fault. This mechanism is detailed in the Administrative Code (Government Emergency Ordinance no. 57/2019), in the Administrative Litigation Law no. 554/2004, and in the Civil Code (Law no. 287/2009), which applies as general law in matters of civil liability.
In practice, patrimonial liability of public officials is enforced either through imputation decisions issued by the head of the institution after internal or external audits, or through recourse actions brought by authorities after they have paid compensation to injured parties. Case-law of administrative and civil courts, including the High Court of Cassation and Justice, has clarified many aspects of this liability, such as the conditions and limits of imputation, applicable time limits and how imputation decisions may be challenged.
This article aims to explain, in an accessible way, when a public official can be held personally liable for damages caused, what the legal grounds are, how imputation procedures and recourse actions work, what recent case-law says, and what concrete steps can be taken by public officials, injured persons and public institutions involved in such disputes.
1. Who is a “public official” and why does it matter?
The starting point is identifying the category of persons to whom the special administrative regime of patrimonial liability applies. The concept of public official is defined and detailed in Part VI of the Administrative Code, which regulates the civil service, the rights and obligations of civil servants and the various forms of liability.
In short, a civil servant (public official) is a person appointed, under the law, to a public position within central or local public authorities and institutions, exercising prerogatives of public power. This includes civil servants in the specialized apparatus of mayors and county councils, staff of ministries and government agencies, personnel of autonomous public institutions such as the National Tax Administration Agency (ANAF) or the National Public Pensions House, as well as certain categories of officials with special status (police officers, prison staff and others) governed by specific statutes.
Alongside civil servants in the strict sense, the discussion on patrimonial liability also involves contractual staff of public institutions (employees hired under individual employment contracts and subject to the Labour Code), and other persons assimilated to public officials in criminal or civil law (for example staff who manage or administer public assets, even if formally employed under private law). For these categories the liability regime is not identical, but is built on the same civil liability principles, supplemented by the specific rules in the Administrative Code and sectoral legislation.
This distinction matters because the regime of patrimonial liability of public officials is a special one, at the crossroads between administrative and civil law. The Administrative Code provides that breach of service duties may trigger disciplinary, contravention, criminal and/or civil liability. Patrimonial liability is closely linked to civil liability, but operates within an institutional framework in which the official is tied to the public authority by a public law service relationship, and the damage is usually suffered initially by the authority or by a private person via an administrative act or an act/omission committed in connection with the exercise of the public function.
2. Legal framework of patrimonial liability of public officials
2.1. The Constitution of Romania and the right of injured persons
The starting point is Article 52 of the Constitution of Romania, which enshrines the right of a person harmed by a public authority. The text states that any person harmed in a right or a legitimate interest by a public authority, by an administrative act or by failure to solve a claim within the legal time limit, has the right to obtain recognition of the claimed right, annulment of the act and reparation of the damage. It also provides that the state is liable for damages caused by miscarriages of justice and, more broadly, for damages caused by unlawful administrative acts, and that it has a right of recourse against the official at fault.
Thus, at constitutional level patrimonial liability is structured on two layers:
- direct liability of the state or public authority towards the injured party; and
- derivative liability of the public official towards the state or authority, via recourse.
As a rule, the injured person does not have a direct claim against the civil servant for acts committed in the exercise of the public function (except in certain common-law situations outside this framework, or where special legislation expressly provides otherwise). The primary legal relationship is between the injured person and the public authority, while the relationship between the authority and the official is a secondary, internal one, governed by recourse and imputation rules.
2.2. The Administrative Code – the status of public officials and forms of liability
The Administrative Code (GEO no. 57/2019) is the main framework act governing the organisation and functioning of public administration, the status of staff of public authorities and the regime of administrative liability. Part VI of the Code regulates the civil service, the rights and obligations of civil servants, incompatibilities and disciplinary rules, as well as the liability of public officials for breaches of service duties.
The Code expressly states that, depending on the gravity and nature of the misconduct, public officials may incur disciplinary, contravention, criminal and civil liability, in accordance with the law and with the Code. At the same time, Part VII of the Code regulates administrative-patrimonial liability of the state and territorial-administrative units for damages caused by unlawful administrative acts, by illicit acts of the administration or by the functioning of public services. These provisions must be read together with the common-law rules in the Civil Code and with the special procedural rules in the Administrative Litigation Law.
From this perspective, the legal framework forms a coherent system: the injured person primarily brings an administrative litigation action against the authority or institution, while the latter may, if the statutory conditions are met, recover the damages from the official at fault through imputation or recourse.
2.3. Administrative Litigation Law no. 554/2004
The Administrative Litigation Law no. 554/2004 gives concrete effect to Article 52 of the Constitution, setting out how injured persons can challenge administrative acts in court and obtain compensation. It governs both actions for annulment and mandatory orders (for example, annulling an unlawful act and compelling the authority to issue a lawful act) and actions for damages caused by unlawful administrative acts or by unjustified refusal to resolve a claim.
Article 18 of Law 554/2004 specifies that if the action is admitted, the court shall also rule on damages where the claimant has requested them. The law also covers situations where actions for damages are brought separately, after an act has been annulled, and the relationship between the preliminary administrative complaint and the court action. In practice, injured persons may obtain in administrative litigation both annulment of the unlawful act and an order for the authority to pay damages; afterwards the authority may, if appropriate, seek recourse against the public official.
2.4. The Civil Code – common-law rules on civil liability
Patrimonial liability cannot be understood without the general principles of civil liability laid down in the Civil Code. Articles 1357 and following govern delictual liability: any person is bound to repair the damage caused to another by an unlawful act committed with fault. The classic conditions – unlawful act, damage, causal link, fault – also apply, with the necessary adaptations, to administrative-patrimonial liability of public officials.
The Civil Code applies both in the relationship between the injured person and the public authority (supplementing Law 554/2004) and in the relationship between the authority and the public official, insofar as the Administrative Code does not contain special rules. For example, provisions on limitation periods, on calculation of damages, on full or partial compensation and on forms of reparation (in kind or by equivalent) are relevant in disputes on patrimonial liability of public officials, subject to the special provisions of the Administrative Code and sectoral legislation.
3. What does patrimonial liability of the public official actually mean?
In practical terms, patrimonial liability of a public official means that he or she may be obliged to cover, from personal assets, the material damage caused to the public authority or institution where he or she works or, indirectly, the damage suffered by private persons as a result of administrative acts or acts/omissions linked to the exercise of public duties.
Legal doctrine often distinguishes between two levels of patrimonial liability in public administration:
- administrative-patrimonial liability of public authorities towards private persons (the state, territorial-administrative units or public institutions are liable for damage caused by unlawful administrative acts or illicit acts of the administration); and
- patrimonial liability of public officials towards the authority or institution (and, exceptionally, towards private persons in common-law situations), usually enforced through imputation decisions or recourse actions.
As a rule, the injured person does not sue the public official directly for conduct performed in the exercise of public duties. The claim is brought against the public authority, which is responsible for the functioning of its services. Only after the authority has paid the damages can it seek to recover, fully or partially, the amounts from the official at fault, provided the legal conditions are met and the official’s fault can be proven.
Patrimonial liability is personal: the official is liable with his or her own assets, within the limits and under the conditions laid down by law. In some cases liability may be joint and several with other officials or other persons involved in causing the damage (for example members of a committee, persons who endorsed an unlawful act, the authorising officer and the staff who made unlawful payments, etc.).
4. Conditions for engaging patrimonial liability of public officials
The Civil Code, the Administrative Code and the Administrative Litigation Law converge towards the same substantive conditions for engaging patrimonial liability of public officials. To make a public official personally liable for compensation, the following must be proven cumulatively:
4.1. Existence of an unlawful act
The unlawful act may take many forms in the activity of public administration. It may involve issuing an unlawful administrative act (for example, a planning decision that breaches zoning rules or higher-ranking legislation), unjustified refusal to resolve a claim, excessive delay in fulfilling a statutory obligation, making unlawful payments, concluding a public contract without complying with public procurement rules, or any other conduct breaching legal norms or service duties.
Internally, the unlawful act is defined by reference to the public official’s service duties, as set out in the job description, in the Administrative Code, in internal regulations and in lawful orders and instructions. Externally, vis-à-vis injured persons, the unlawfulness is assessed in relation to substantive legal norms (primary and secondary legislation) and to case-law on the legality of administrative acts and the requirement of good administration.
4.2. Existence of a patrimonial damage
Patrimonial liability presupposes a material damage, quantifiable in money. In the case of public officials, the damage may initially affect the authority or institution (for example, payment of undue sums, losing a lawsuit, penalties, late-payment interest, deterioration of public assets) or the injured person, who subsequently obtains compensation from the authority.
The damage must be certain (not purely hypothetical), actual or, in some situations, future but sufficiently certain, and must be specifically proven – by accounting documents, audit reports, expert reports, court judgments, contracts and so on. The question of the extent of the damage is also important: does it cover only material loss (damnum emergens and lucrum cessans) or also non-pecuniary harm? In internal relations between authority and official, disputes typically concern material damage, although reputational harm to the institution may also be relevant for the decision whether to pursue recourse.
4.3. Causal link between the act and the damage
Not every loss suffered by a public institution can automatically be attributed to a particular official. There must be a proven causal link between the official’s specific conduct (action or omission) and the damage. For instance, if one official endorsed a draft contract but the damaging clause was later negotiated and inserted by another person, the first official cannot be held liable for the entire loss without proof of a direct causal link between his or her act and the loss suffered.
Court practice emphasises the need for an adequate causal link: the official’s act must normally be capable of producing the damage in question. Where the damage results from a chain of circumstances (for example a combination of the official’s error, the negligence of other persons and external factors), courts may apportion liability or limit it to the part of the damage effectively attributable to the official.
4.4. Fault (intent or negligence) of the public official
Patrimonial liability requires fault, either intent or negligence (carelessness, imprudence). Fault is assessed in relation to the standard of a “reasonably diligent public official” in similar circumstances. Not every minor error or reasonable mistake of judgment in a complex, uncertain context will automatically trigger patrimonial liability. However, serious breaches of the law, clear disregard of mandatory provisions, signing documents without minimal verification, or refusing to comply with binding court judgments are typically sanctioned.
Sometimes the state or authority may be liable for damage caused even by lawful acts (for example in certain regimes of objective liability related to public services). But when considering recourse against the official, courts will focus on the official’s fault: the state cannot recover from an official compensation paid for risks inherent in the functioning of public services where the official has acted diligently and complied with his or her legal and professional obligations.
5. Mechanisms for enforcing patrimonial liability: imputation decisions and recourse actions
5.1. Imputation decisions in internal relations between authority and official
Internally, when a damage to the authority’s assets is found, the classical mechanism for enforcing patrimonial liability of public officials is the imputation decision issued by the head of the institution. This mechanism, initially regulated by former Law no. 188/1999 on the Statute of Civil Servants and now taken over, with adjustments, by the Administrative Code, involves several stages:
- finding the existence of a damage, usually via an internal control report, internal audit or external audit by the Court of Accounts;
- identifying the persons responsible and assessing their fault (through administrative inquiries, investigative committees, written statements and explanations from the officials concerned);
- calculating the amount of the damage to be imputed to each person involved;
- issuing the imputation decision or order by the head of the institution, indicating the legal basis, the act or omission imputed, the amount of the damage, the method of recovery (lump sum payment, instalments, deductions from salary, where permitted) and the available remedies.
Earlier legislation provided strict time limits for issuing imputation decisions – for example 30 days from the date the damage was established and 3 years from the date the damage occurred – and courts held that failure to comply with these limits rendered the decision null and void. The Administrative Code keeps the same logic, even if the numbering and wording of provisions has changed. Therefore, public institutions must observe these deadlines, and officials targeted by imputation decisions should always verify whether the decisions were issued within the legal time limits.
The imputation decision is an individual administrative act and can be challenged by the official, under the law, by a preliminary complaint addressed to the issuing authority and later by an administrative litigation action before the competent court. In such litigation the court will review both formal legality (competence, procedure, motivation, time limits) and substantive grounds (existence of the act, damage, causal link and fault).
5.2. Recourse actions after compensation has been paid to the injured person
The second major mechanism for enforcing patrimonial liability is the recourse action by which the authority or public institution sues the public official after it has paid compensation to the injured person, either under Law 554/2004 or under common law. For example, if a municipality is ordered by a final court judgment to pay substantial damages to a private party because of an unlawful urban planning decision, it may subsequently bring a recourse action against the officials responsible for issuing that decision (members of the planning committee, the chief architect, staff who prepared the documentation etc.).
The recourse action is based on the provisions of the Administrative Code and Civil Code governing civil liability and seeks to recover, fully or partially, the amounts paid. The court will again assess the conditions of patrimonial liability and may consider circumstances justifying limiting liability or even excluding it (for example where the official implemented a written order from a superior, challenged or formally objected to it, and the unlawfulness was not manifest).
It is important to note that recourse is usually a matter of discretionary policy: the public authority may decide whether and to what extent to pursue officials, taking into account the seriousness of the conduct, the context, seniority, any institutional shortcomings and internal compliance policies. However, unjustified failure to exercise recourse may itself be criticised by audit bodies, tax-payers or even courts, given the obligation to protect public assets.
6. Practical examples involving officials, institutions and injured persons
6.1. Unlawful administrative act and damages in administrative litigation
Consider a public official in a municipal urban planning service who participates in issuing a building permit that breaches the General Urban Plan or other planning rules (for example authorising a building exceeding the maximum height allowed). Neighbours challenge the permit in court, obtain its annulment and then claim damages for the harm suffered (loss of property value, loss of light, noise, etc.). The municipality is ordered to pay damages under Law 554/2004.
Internally, the municipality must determine whether officials involved in issuing the permit are liable: the person who drafted the report, those who endorsed it, the chief architect, the persons who ignored legal department warnings. Based on the findings of a control report, the institution may issue imputation decisions against these officials or bring a recourse action, seeking recovery of all or part of the sums paid in damages.
6.2. Unlawful payments identified by the Court of Accounts
Another frequent scenario involves unlawful payments identified by the Court of Accounts: salary bonuses without legal basis, allowances paid above legal ceilings, premiums granted in breach of legislation, unjustified advance payments, expense reimbursements without supporting documents, public procurement contracts at unjustified prices and so on. The Court of Accounts’ audit report establishes the existence of the loss and recommends measures to recover it, including by issuing imputation decisions.
Following the report, the public institution must identify the officials responsible (authorising officer, chief financial officer, HR manager, head of the accounting department, staff who verified and endorsed documents) and issue imputation decisions within the time limits laid down by law. The officials concerned may challenge these decisions, arguing, among other things, that conditions for liability are not met, that there is no fault, that the Court of Accounts’ findings have been misapplied, that the claim is time-barred or that there were procedural defects.
6.3. Undue social benefits and liability of local social workers
At the level of social assistance departments or territorial agencies, officials assess applications for various social benefits (social assistance, allowances, disability benefits, support for low-income families etc.). If, due to negligence or clear breach of the law, they approve applications that do not meet legal conditions or fail to stop payments when conditions cease to be met, significant losses may be caused to the public budget.
After internal or external controls, these unlawful payments are identified and the question arises how to recover them – from beneficiaries (who may invoke good faith) and/or from the responsible officials. Patrimonial liability is particularly sensitive here, as courts must carefully distinguish between excusable error in a complex legislative framework and clear, culpable breaches of service duties.
7. Relevant case-law on patrimonial liability of public officials
Romanian courts, including the High Court of Cassation and Justice, have played a key role in clarifying important aspects of patrimonial liability of public officials. Without attempting an exhaustive overview, several themes emerge from case-law published on platforms such as scj.ro, rolii.ro and jurisprudenta.com:
- Mandatory nature of time limits for imputation decisions. Courts consistently hold that time limits laid down by law for issuing imputation decisions (for example, from the date the damage is established and from the date the damage occurred) are of a peremptory nature; failure to comply with them leads to annulment of the decision. Officials targeted by imputation should therefore always check the relevant dates carefully.
- Legal nature of the imputation decision. Courts have confirmed that the imputation decision is an individual administrative act subject to judicial review in administrative litigation. As such, to be lawful it must comply with all formal and substantive requirements set by administrative law: competence, reasoning, procedural safeguards, time limits, clear statement of legal grounds and factual circumstances.
- Relationship between administrative-patrimonial liability and civil delictual liability. In some cases the High Court has analysed the interplay between actions for damages based on the Administrative Litigation Law and actions based on common-law delictual liability, underlining that the injured person primarily has an administrative litigation claim against the authority, while recourse against the official is an internal matter between authority and official.
- Limits of liability where the official executes a superior’s order. Case-law shows that an official who executes a clearly unlawful order cannot automatically rely on that order as a defence, especially if he or she has not made any attempt to raise objections or to seek clarification. However, where unlawfulness is not obvious and the official has acted diligently and in good faith, courts may be reluctant to impose full liability, shifting responsibility to the superior who issued the order or to the institution.
8. Practical recommendations for officials, authorities and injured persons
8.1. For public officials
Public officials can significantly reduce the risk of patrimonial liability by adopting some practical measures:
- carefully documenting decisions and acts issued, keeping all internal notes, legal opinions, technical endorsements and relevant correspondence;
- consulting legal departments regularly and respecting reasoned legal opinions, especially in legally complex cases (urban planning, public procurement, tax enforcement, social benefits);
- refusing to sign or countersign clearly unlawful documents, even under internal pressure; in such cases, a written statement explaining the objections is essential;
- attending regular training on new legislation, case-law and best practices in their field of activity;
- monitoring their own risk exposure – ongoing audits, preliminary findings of damage, draft imputation decisions – and promptly exercising the right to be heard and to present defences.
8.2. For public authorities and institutions
Public authorities must protect public assets while also respecting the rights and guarantees of their staff. Some useful recommendations include:
- establishing clear internal procedures for identifying and recovering losses, consistent with legal time limits and relevant case-law;
- setting up professional analysis committees involving legal, financial and technical experts to assess both the existence of damage and the fault of those involved;
- avoiding “automatic” approaches by which all losses identified by the Court of Accounts are simply passed on to staff, without a nuanced assessment of each person’s contribution and of institutional shortcomings (organisational failures, lack of training, unclear procedures);
- ensuring transparent communication with officials concerned, informing them in due time of preliminary findings and taking into account their explanations and objections;
- deciding on recourse actions on a case-by-case basis, considering not only the amount of damage but also the broader context, including institutional fault and the impact on staff morale and organisational culture.
8.3. For persons injured by acts or omissions of public administration
Individuals or companies harmed by unlawful administrative acts or by omissions of public authorities should bear in mind:
- the existence of time limits for administrative litigation actions (in principle six months from the date they became aware of the act or refusal, with variations depending on the type of act) and the general requirement to follow a preliminary complaint procedure (addressing the complaint to the issuing authority);
- the possibility to claim material and non-pecuniary damages in the same action for annulment or in a separate action, depending on the circumstances, under Law 554/2004 and the Civil Code;
- the importance of evidence: the contested act, correspondence with the authority, expert reports, accounting documents and any other proof of damage and of the link with the authority’s act or omission;
- the fact that their main opponent in court is the public authority, not the individual official. The question of the official’s patrimonial liability is addressed internally, through imputation or recourse.
9. Conclusions
The patrimonial liability of public officials is an essential tool for protecting public assets and strengthening citizens’ trust in public administration. It must, however, be applied in a balanced way, within a coherent legal framework and based on thorough analysis of each individual case. The public official cannot serve as a convenient scapegoat for all institutional failures, but neither can he or she be exempt from liability where serious, culpable breaches of law and service duties have caused significant damage to public finances or to individuals’ rights.
The Constitution, the Administrative Code, the Civil Code and the Administrative Litigation Law provide the legal framework for a coherent approach to patrimonial liability, while court practice adds important clarifications on time limits, the legal nature of imputation decisions, the relationship between administrative litigation and common-law actions, and the limits of liability where the official acts under orders of a superior.
Ultimately, public officials, authorities and injured persons all have an interest in understanding the rules: when patrimonial liability can be engaged, how procedures unfold, what defences are available and what responsible, prudent management of public resources means in practice. In most cases, consulting a lawyer specialised in administrative law and litigation is a crucial step in effectively protecting rights and legitimate interests in this sensitive field.
Frequently asked questions (FAQ) on patrimonial liability of public officials
1. Can a public official be sued directly by the injured person?
As a rule, no. The injured person usually brings an administrative litigation action against the public authority that issued the act or failed to fulfil its duties, under Law 554/2004. The authority is directly liable towards the injured person and may later seek recourse against the official at fault. A direct claim against the official is generally possible only in common-law situations outside the exercise of the public function or where special legislation provides otherwise.
2. Is the public official always liable for the full damage?
Not necessarily. Courts may find partial liability, depending on the official’s concrete contribution to the damage and on institutional fault (for example, lack of training, supervision or adequate procedures). In addition, when using recourse, the authority may decide to limit the amount sought from the official, taking into account the seriousness of the misconduct, seniority, prior conduct and financial situation, provided that the principles of legality and proportionality are respected.
3. What time limits apply for issuing and challenging an imputation decision?
Special legislation and the Administrative Code provide time limits for issuing imputation decisions (from the date the damage is established and from the date the damage occurred), as well as for challenging them before the administrative courts. Although the details depend on the applicable provisions and on the official’s status, case-law has generally held these to be strict (peremptory) time limits whose breach may lead to annulment of the decision. Officials should seek legal advice promptly to avoid missing challenge deadlines.
4. What if the public official was merely executing a superior’s order?
Executing a superior’s order does not automatically exonerate the official. If the order is manifestly unlawful, the official is expected to refuse it and to record objections in writing. Where the unlawfulness is not obvious and the official has acted in good faith and with due care, courts may shift primary responsibility to the superior who issued the order or to the institution, limiting or even excluding the subordinate’s patrimonial liability.
5. Can patrimonial liability arise for damage caused by omission?
Yes. Patrimonial liability may arise from omissions such as unjustified refusal to resolve a claim, excessive delay in issuing an administrative act, failure to react to warning signs about unlawful payments or contracts, or failure to perform monitoring and oversight duties. If the other conditions of civil liability (damage, causation and fault) are met, such omissions may justify imputation or recourse.
6. What role does the Administrative Litigation Law play in patrimonial liability?
The Administrative Litigation Law is the main instrument by which injured persons obtain damages from public authorities for unlawful acts or omissions. The administrative court can both annul the unlawful act and order the authority to pay damages. After paying, the authority may rely on the court’s findings as a basis for recourse against the public official, under the Administrative Code and Civil Code.
7. Is legal representation necessary in disputes on patrimonial liability of public officials?
Given the high level of technicality, the interplay between administrative, civil and sometimes criminal or fiscal rules, and the importance of evidence and procedural deadlines, legal assistance from a lawyer specialised in administrative law and litigation is, in practice, essential. This applies both to officials facing imputation decisions or recourse actions and to injured persons seeking compensation from public authorities.