In Belgium, a citizen can sue on behalf of the municipality he lives in and the municipal government (mayor and aldermen, those who normally decide over starting a suit or not) cannot prevent the individual of suing on behalf of the municpality.
It resembles the qui tam procedure known in the U.S.A. When the suit is lost, the suing individual must pay, when he wins, the gains from the suit flow to the municipality.
In Belgium it's mostly used in environmental lawsuits (non-pecuniary injunctions) because those suits can only be started by the municipality and not an individual.
Similar procedures existed until 1966 in the Netherlands and still exist in France and Luxembourg, apparently all three modeled after the Belgian example (law of 1836).
In France and Luxembourg however, the indivudual needs the approval of his action by the administrative court (France) or the national government (Luxembourg).
Does such a procedure also exist in other countries?
Primary legal sources:
- Belgium: Loi communale / Gemeentewet, art. 271 (1988 version, still valid in the Brussels region, originally art. 150 of the 1836 law)
- Flanders: Gemeentedecreet, art. 194
- Wallonia: Code de la démocratie locale et de la décentralisation, art. L1242-2
- France: Code général des Collectivités Territoriales, art. L 2132-5 (originally art. 49.3 of the 1837 law)
- Luxembourg: Loi communale, art. 85 (originally art. 107 of the 1843 law)
- Netherlands: Gemeentewet, art. 143.3 in original 1851 version, art. 177.3 in 1966 when abolished
Als je me je e-mailadres zend kan ik misschien nog aanvullende info bezorgen.
This procedure is not possible in the Czech Republic. It was a matter of discussion few years ago but finaly this right of citizen was not approved. So, those suits can only be started by the municipality and not an individual.
Yes, an individual does not need 'locus standi' in matters of public interest. However, that is in the jurisdictions where the principle of 'Public Interest Litigation' is in practice. See the case of Tajj Mahal in India.
In Jamaica, there is a like matter that is currently under judicial consideration. The relevant goverment authority was purporting to change electoral boundaries and thereafter call a local election. The Claimant brought an injunction against the relevant Minister and other authorities to prevent them from acting to change the boundaries. The application was refused on the basis that the Claimant had no locus standi. The Claimant was a candidate in the upcoming elections, as well as a resident and elector in the affected municipality. He has got permission to appeal and the substantive appeal is pending.
I refer below a link to the Supreme Court Judgment which is being appealed:
http://supremecourt.gov.jm/content/hines-lennox-v-electoral-commission-jamaica-minister-local-government-and-community
as well as a UK Privy Council case in which they granted relief in a similar situation in St. Kitts, (but is not clear in that case if the Claimants were residents):
https://www.jcpc.uk/cases/docs/jcpc-2015-0028-judgment.pdf
I am not an expert on this subject. But in the United States, one must have "standing" to sue under Article III of the Constitution. Generally this requires proof of (1) harm or injury to the person suing; (2) that the injury was a legally protected right; and (3) that the injury or harm resulted from the defendant's action. A municipality in the U.S. is a subdivision of a State and so the right to sue would generally have to arise under a State Constitution (unless the individual were raising a federal claim). There is a federal statute, the False Claims Act where individuals may sue on behalf of the government if the individual believes the government has been harmed -- the citizen's "standing" to sue is generally based on the citizen's rights as a taxpayer. Thus, if someone over charges the government for a hammer, it is my tax dollars that are being wasted so I can sue. At the level of a municipality, a similar right to sue attaches as a state taxpayer under a State Constitution in many states. For example, there was a case in Colorado where someone sued to stop abortions paid for with state dollars. I think they lost however because the government's right to provide healthcare over rode the citizen's interest in where their tax dollars went, but I don't actually remember exactly. So the "standing" to sue is separate from the ability to win the lawsuit, which is the same elsewhere I suspect.
If I were smarter I could probably be more succinct. You can see it would be a matter of looking up case law in 50 states + Or I could link a Supreme Court case the the False Claims Act if you like.
Cheers! Mary
In Spain it is possible. You can see article 68 of Act 7/1985, regulating the Local Government System:
http://noticias.juridicas.com/base_datos/Admin/l7-1985.t5.html
Ricardo Juan
Many thanks, Ricardo Juan Sánchez, that's very interesting.
Is it frequently used? Was it new in 1985 or did it come from earlier laws on local government? Was it imported from France? Is it exported to other countries as well?
The puzzle is how the private individual gets standing to sue (locus standi). Here's a few thoughts.
A. Tort damages that are to punish or deter: exemplary/punitive
In England and Wales these are only available as extras. That is to say, the claimant must have suffered some compensable ‘loss’ in order to trigger the punitive/ exemplary element. When successful, the private individual claimant gets a windfall benefit (i.e. damages far greater than required to compensate for the loss suffered). But, in some US jurisdictions a substantial proportion of exemplary/punitive damages is payable to the Court rather than to the claimant. On this see:
Dan Priel, A Public Role for the Intentional Torts
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1671546
Marc Galanter and David Luban, Poetic justice: Punitive damages and legal pluralism
https://www.academia.edu/884223/Poetic_justice_Punitive_damages_and_legal_pluralism_with_David_Luban_
David D. Friedman, Beyond the Tort/Crime Distinction
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1573&context=facpubs
B. Private prosecutions of crimes
In England and Wales, private individuals can bring criminal prosecutions, but there is a public control that can lead to them being struck out. See Gouriet v. Union of Post Office Workers [1978] AC 435 http://www.uniset.ca/other/css/1978AC435.html
If Gouriet had posted a letter that was then, because of the trade union action, undelivered, would he have succeeded? Was he trying to be a kind of private Attorney General for the public?
See also, for the official control mechanism:
http://www.legislation.gov.uk/ukpga/1985/23/section/6
C. Public Nuisance
There is also a tort of public nuisance. A private individual can sue but must first have suffered harm greater than the general run of the public has suffered. Can be useful for bringing test cases.
See Tate & Lyle v. GLC {1983] 2 AC 509 at http://swarb.co.uk/tate-lyle-industries-ltd-v-greater-london-council-hl-24-mar-1983/
Cite
1 Recommendation
Luis Miguel Pereira Farinha
Infraestruturas de Portugal, S.A.
In Portugal, The Code of Procedure in Administrative Courts states under aricle 9, number 2 that regardless of personal interest in demand, any person as well as associations and foundations that advocate the interests involved, as well as local authorities and public prosecutors are entitled to propose and intervene in accordance with the law on primary and preventive processes for the defense of values and constitutionally protected property, such as public health, the environment, urban planning, land management, quality of life, cultural heritage and the property of the state, of the Autonomous Regions and local authorities, as well as to promote the implementation of the relevant judicial decisions.
Cite
1 Recommendation
Mary Gillmarten
Bloomberg BNA
Ask and you shall receive -- here is an interesting case -- full disclosure, I work for Bloomberg BNA now; summary, Bureau of National Affairs (BNA), a legal publishing entity was sued by this individual on behalf of the for misuse/misapplication of the sales and use tax on behalf of the state. He makes a living off of these lawsuits having recovered tax dollars for the state, but also US$11.6 million for himself over the years! This is an article about the case with links.
https://www.bloomberglaw.com/product/tax/document/XB8PLJ9G000000?bc=W1siRGFpbHkgVGF4IFJlcG9ydCIsIi9wcm9kdWN0L3RheC9sYXdfcmVwb3J0cy9CTkFEVFIiXV0--6c04bf2280d2ca4ad1a4ff2c90a883a640bc2e47&jcsearch=bna%2520a0k2w1j4c1#jcite
Cite
In Brazil, we have an action called "ação popular" (I am pretty sure there's an ancient expression in Latin for its concept, which is likely to be actio popularis): it's an action any citizen can file in order to protect either (1) property and/or funds belonging to the State or State-participated entities (companies, etc.), (2) the administrative morality (e.g., in cases of confusion between officers' private and public interests), (3) the environment or (4) cultural or historical heritage. It is regulated by a statute (Law n. 4.717/1965) but is also object of a constitutional provision (art. 5th, LXXIII), which also states that, unless the plaintiff is in "bad faith" (the opposite of bona fide), he or she is free from judicial fees and burden of loss in general (i.e., there's no need to pay anything even in loss).
The Wikipedia entry on it has some other info on it, but it isn't translated to English. If you require more about it, feel free to contact me directly.
https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm#art5lxxiii
http://www.planalto.gov.br/ccivil_03/leis/L4717.htm
https://pt.wikipedia.org/wiki/Ação_popular
Cite
1 Recommendation
Erimma Gloria Orie
National Open University Of Nigeria
In Nigeria this used to be a tall order with the many judicial decisions in favour of a litigant having the locus standing before he can successfully sue. However, the case of Gbemre v . Shell PDC Ltd and Ors (2005) AHRLR 151 (NgHC2005) and more recently Centre for Oil Pollution Watch v.NNPC (2019) 5 NWLR (Pt. 1666) 518 has changed this position. So a litigant can now sue in a representative capacity and even when he has no interest at all. For further reading see;
Orie Erimma Gloria (2021).COVID-19 Pandemic,Migration and Human Rights Protection in Nigeria. International Journal of Migration and Global Studies (IJMGS), 1(1):133-162 ; Orie, Erimma Gloria (2014). Environmental protection and Fundamental Human Right to life: a review of the Nigerian constitutional provision and the judicial posture. NOUN Current Issues in Nigerian Law 4:148-196.
Cite
1 Recommendation
Obongha Usang
Nnamdi Azikiwe University, Awka
This is very possible under the Nigerian fundamental rights (enforcement procedure) rules in particular, and it seems so too when defending or protecting a community (municipality) property which you have an interest in.
Cite
1 Recommendation
Similar questions and discussions
What legal impact would it have a distributed and hibrid database architecture (SQL, NoSQL, GraphQL) for the Electronic Medical Record (EMR)?
Question
6 answers
- Jaime E Soto U
Traditionally, the databases dedicated to the recording of electronic medical records (EMR) have been monolithic, centralized and isolated. The evolution of data architectures and their distributed location in the Cloud, motivate us to consider them as an excellent option for timely and secure access; however, we wonder what legal implications this suggested scenario might have. Generally, EMR information is treated with great caution, reserve and even fear of the legal consequences of potential lawsuits that doctors and health centers may suffer for disclosing health information belonging to patients or for mishandling it.
Educational malpractice lawsuits have uniformly failed, will the focus on teacher accountability change this legal/policy response?
Question
8 answers
- Todd A. DeMitchell
Since the Peter W. v. San Francisco Unified Sch. Dist. (1976) case, lawsuits brought under educational malpractice have uniformly failed. Will the push for increased teacher accountability, the development of teaching standards, and the use of VAM models resurrect educational malpractice as a viable tort? Should it be resurrected?
Is Legal positivism of Hans Kelsen outdated by Dworkin?
Question
23 answers
- Marcelo Negri Soares
Legal positivism, by contrast to natural law, holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts. Legal positivists differ on what those facts are. (Soper, "Legal Positivism", Cambridge Dictionary of Philosophy)
In his book Law's Empire Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an 'interpretive' concept, that requires judges to find the best-fitting and most just solution to a legal dispute, given their constitutional traditions. (Ronald Dworkin, Law's Empire (1986) Harvard University Press)
What value do we attached to our life?
Question
11 answers
- Olatunji A Shobande
The value of life is an economic value used to quantify the benefit of avoiding a fatality. It is also referred to as the cost of life, value of preventing a fatality (VPF) and implied cost of averting a fatality (ICAF). In social and political sciences, it is the marginal cost of death prevention in a certain class of circumstances. In many studies the value also includes the quality of life, the expected life time remaining, as well as the earning potential of a given person especially for an after the fact payment in a wrongful death claim lawsuit.
Any comment on Malta's "coastal perimeter" and the 2016 amendment of the civil code?
Question
2 answers
- Pantelina Emmanouilidou
In 2016, Malta made a paradigm shift in its legislation by adopting the "public domain" doctrine in order to safeguard some coastal sites. The details are inserted by amendment as a 4th schedule of the civil code, cap. 16.
In addition, the same amendment defines the "coastal perimeter", as well as other landmarks of the coastal zone (art. 311 CC).
I found these changes ground-breaking for the Malta's legal order, but I did not find any literature about them.
Do you have any views or references?
Possession recovery claim/ دعوى استرداد الحيازة
Discussion
3 replies
- Naseer Sabbar Lafta Al-Jubouri
ان التكييف القانوني للدعوى التي يقيمها المستأجر على الغير الذي اشغل جزء من المأجور هي دعوى الحيازة وانه لا يقبل الطعن بالحكم بطريق الاستئناف بل يكون الطعن تمييزا امام محكمة الاستئناف بصفتها التمييزية فقط..
The legal qualification for the lawsuit filed by the tenant against the third party who occupied part of the leased property is the possession lawsuit, and the ruling is not accepted by way of appeal. Rather, the appeal is considered a cassation case before the Court of Appeal in its cassation capacity only.
Where is the edge between robots (artificial intelligence) and human beings?
Question
16 answers
- George G. Tumanishvili
Dear Colleagues,
What to do you think, in case of future possibility of creating artificial intelligence which will be like ours, where will be the edge (in a legal point of view) between human being and the robot with artificial intellect?
Does anyone know report or publication on marine spatial planning in West Africa ?
Question
3 answers
- Marie Bonnin
marine environmental law.Does anyone know report or publication on marine spatial planning in West Africa ?
How would you study a set of indicators as discursive elements?
Question
3 answers
- Stefano Golinelli
In spite of their apparent neutrality, indicators can be seen as discursive elements. In that they bear specific values and knowledge claims that (as discourses) frame a problem and its solutions in a particular way. For instance, in measuring the quality of land-related legal systems, a high number of lawsuits filed can be seen either as a symptom of a good legal system which promote access to justice for smallholders, or a symptom of a weak legal system (as it is in the world bank approach).
Which methodologies/ approach you think can be useful to study these differences?
Related Publications
Pour une théorie juridique de l'expertise
Article
- Rafael Encinas De Munagorri
Using the Master’s Tools: Reflections on Feminist Lawyering and Process
Article
- Karin Galldin
Dans le présent article, j’explore comment l’avocat.e féministe pourrait accorder une plus grande attention aux méthodes utilisées dans son travail avec ses clientes. À la lumière des premières théories juridiques féministes, je suggère que le professionnalisme, la blancheur et une tendance historique à dire que la pratique féministe du droit est u...
Economics and the Autonomy of Law, Legal Analysis and Legal Theory
Chapter
- Robert S. Summers
- William G. McRoberts
- Arthur L. Goodhart
The main theses of this paper are:1. Since about 1960 in the United States there has been an important movement in legal thought applying economic analysis to law (the “law and economics” movement).1 2. Some American proponents of economic analysis of law have expressly stated or implied that law, legal analysis, and legal theory have no genuine au...
Got a technical question?
Get high-quality answers from experts.
Top contributors to discussions in this field
Yoganandan G
Chukwuebuka Egbuna
Ljubomir Jacić
Jesús S. Aguilar-Ruiz
Esra Abdelzahra
Join ResearchGate to find the people and research you need to help your work
- 25+ million members
- 160+ million publication pages
- 2.3+ billion citations
or
- Join for free
- LoginEmail Tip: Most researchers use their institutional email address as their ResearchGate login
PasswordForgot password?
Keep me logged inor
Continue with Google
Welcome back! Please log in.
Email · HintTip: Most researchers use their institutional email address as their ResearchGate login
PasswordForgot password?
Keep me logged in
or
Continue with Google
No account? Sign up
- Badges
- Science method
- Similar topics
- Methodology