European tort law
Encyclopedia
European Tort Law, as a term, is not strictly defined and is used to describe a number of various features concerning tort law in Europe
. The concept developed alongside other major historic developments of European integration
.
, the concept of a united Europe began to take shape. The ideas of a unified Europe varied in degree. Some envisioned a Federal Europe run by a European government and others merely aimed for an economic cooperation only in order to achieve a common internal market
. The result today is somewhere in between these two extremes.
As Europe merged politically, a common European tort law also emerged. In the middle of the 20th Century, European tort law was varied and a common European tort law was non-existent. Only in the beginning of the 21st did it started to take shape.
. But on the other side of the spectrum is the idea that harmonization should only be to the extent necessary for a functioning of the internal market. Once again, the current situation is somewhere in between.
There are various developments occurring in this area. The European Court of Justice
(ECJ) has developed case law on the basis of general principles common to the laws of the Member States. The European Commission has also looked toward harmonisation by proposing to develop a so-called Common Frame of References. National courts and legislators are also becoming more prepared to look at foreign developments.
These various developments demonstrate that although a convergent tendency is apparent at some points, differences between Member States remain substantial. This is not only in content but there are also differences in procedure, in legal culture, and in social, economic and political backgrounds. European tort law is not only about slowly growing harmony in certain respects but also about rich diversity in many other.
, the Commission
and the Court
, where lawyers from all Member States work closely together, different legal backgrounds inevitably play a role. Comparative law
can thus be seen as a vital method in finding common ground and developing Community law. The courts however, usually confine themselves to general expression like ‘legal principles common to all or several Member States.’
In order to acknowledge the existence of a general principle of law, the ECJ does not require that the rules be a feature of all the national legal systems. Rather, the Court merely finds that the principle is generally acknowledged and that, beyond divergences, the domestic laws of the Member State show the existence of common criteria.
It is interesting to note that the highest national courts also show an increasing interest in and need for comparative information. Here it is used to avoid gaps between legal systems. As Lord Bingham notes; ‘In a shrinking world there must be some virtue in uniformity of outcome whatever the diversity of approach in reaching that outcome’. In this sense also, Comparative Law is a converging tool.
consists of the treaties
, regulations
, directives
and case law.
Specifically in the area of tort law, a number of rules can be found in tort law directives. Examples of directives include the Product Liability Directive and the Directive on Unfair Commercial Practices
. A directives can be either a maximum harmonisation
directives, which means member states are not allowed to deviate from it, or a minimum harmonisation
directive, which only provide a general framework. Article 249 EC, however, concedes that a directive ‘shall be binding as to the result to be achieved, upon each member State to which it is addressed, but shall leave to national authorities the choice of form and methods’.
Liability can also be based on the violation of community provisions. Article 288 of the EC explicitly regulates the liability of Community Institutions for damage caused by the breach of Community Law. This article does not give precise liability rules but refers to the general principles common to the laws of Member States. It does not mean that ‘the Community judicature must search for a solution favoured by a majority of Member States …. It simply means that the Community judicature must look to the national systems for inspiration in devising a regime of non-contractual liability adapted to the specific circumstances of the Community.’
The development of a general principle of liability for breach of Community Law is also in the Francovich case law of the ECJ. In this 1991 decision, the ECJ acknowledged liability of the Member States towards individuals for violation of Community law as being inherent in the system of the Treaty and being necessary for the effectiveness of Community of law. On the basis of the general principles to which Article 288 refers, the ECJ developed three requirements for liability:
The fulfilment of these requirements is sufficient for a right to compensation, which is directly based in Community Law.
which was established in 1992. The group meets regularly to discuss fundamental issues of tort law liability as well as recent developments and the future directions of the law of tort. The Group has founded the European Centre of Tort and Insurance Law
in Vienna.
The Group has drafted a collection of Principles of European Tort Law
similar to the Principles of European Contract Law
drafted by the European Contract Law Commission. The full text of the Principles is available online at http://www.egtl.org/Principles.
There are two observations which may further question the desirability and feasibility of the harmonization of tort law. Firstly, the harmonization of tort law is hard to achieve without taking into account other compensation systems, such as private insurance and social security systems. These systems are strongly interconnected and it is undesirable to harmonize one without the others.
Secondly, harmonization of tort law would also need harmonization of administrative and criminal law
. Most legal systems acknowledge the possibility to be liable for damage caused by the violation of a statutory duty. Hence, if there were to be harmonization of the rules for breach of statutory duty, one should also harmonize the statutory rules that can be invoked as a basis for this tort.
What is certain is that, an agenda for further debate must be pursued. Perhaps the focus should not be on Europe united by European rules, but rather on a Europe united in diversity with harmonized rules where needed and diversity where possible.
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
. The concept developed alongside other major historic developments of European integration
European integration
European integration is the process of industrial, political, legal, economic integration of states wholly or partially in Europe...
.
History
After World War IIWorld War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, the concept of a united Europe began to take shape. The ideas of a unified Europe varied in degree. Some envisioned a Federal Europe run by a European government and others merely aimed for an economic cooperation only in order to achieve a common internal market
Internal market
An internal market operates inside an organization or set of organizations which have decoupled internal components. Each component trades its services and interfaces with the others. Often a set of government or government-funded set of organizations will operate an internal market...
. The result today is somewhere in between these two extremes.
As Europe merged politically, a common European tort law also emerged. In the middle of the 20th Century, European tort law was varied and a common European tort law was non-existent. Only in the beginning of the 21st did it started to take shape.
Background
The ideas on the harmonisation of European Tort Law also vary drastically. On the one hand there is a vision of a codification of European Tort Law as part of a European civil codeEuropean civil code
The European civil code is a proposed harmonization of private law across the European Union.The ultimate aim of a European civil code is, like a national civil code, to deal comprehensively with the core areas of private law. Private law typically covered in a civil code includes the family law,...
. But on the other side of the spectrum is the idea that harmonization should only be to the extent necessary for a functioning of the internal market. Once again, the current situation is somewhere in between.
There are various developments occurring in this area. The European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
(ECJ) has developed case law on the basis of general principles common to the laws of the Member States. The European Commission has also looked toward harmonisation by proposing to develop a so-called Common Frame of References. National courts and legislators are also becoming more prepared to look at foreign developments.
These various developments demonstrate that although a convergent tendency is apparent at some points, differences between Member States remain substantial. This is not only in content but there are also differences in procedure, in legal culture, and in social, economic and political backgrounds. European tort law is not only about slowly growing harmony in certain respects but also about rich diversity in many other.
Comparative Law
In community institutions, such as the CouncilCouncil of the European Union
The Council of the European Union is the institution in the legislature of the European Union representing the executives of member states, the other legislative body being the European Parliament. The Council is composed of twenty-seven national ministers...
, the Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
and the Court
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
, where lawyers from all Member States work closely together, different legal backgrounds inevitably play a role. Comparative law
Comparative law
Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law...
can thus be seen as a vital method in finding common ground and developing Community law. The courts however, usually confine themselves to general expression like ‘legal principles common to all or several Member States.’
In order to acknowledge the existence of a general principle of law, the ECJ does not require that the rules be a feature of all the national legal systems. Rather, the Court merely finds that the principle is generally acknowledged and that, beyond divergences, the domestic laws of the Member State show the existence of common criteria.
It is interesting to note that the highest national courts also show an increasing interest in and need for comparative information. Here it is used to avoid gaps between legal systems. As Lord Bingham notes; ‘In a shrinking world there must be some virtue in uniformity of outcome whatever the diversity of approach in reaching that outcome’. In this sense also, Comparative Law is a converging tool.
European Union
The legal framework of the European UnionEuropean Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
consists of the treaties
Treaties of the European Union
The Treaties of the European Union are a set of international treaties between the European Union member states which sets out the EU's constitutional basis. They establish the various EU institutions together with their remit, procedures and objectives...
, regulations
European Union regulation
A regulation is a legislative act of the European Union that becomes immediately enforceable as law in all member states simultaneously. Regulations can be distinguished from directives which, at least in principle, need to be transposed into national law...
, directives
European Union directive
A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result. It can be distinguished from regulations which are self-executing and do not require any implementing measures. Directives...
and case law.
Specifically in the area of tort law, a number of rules can be found in tort law directives. Examples of directives include the Product Liability Directive and the Directive on Unfair Commercial Practices
Directive 2005/29/EC The Unfair Commercial Practices Directive
Directive 2005/29/EC, the Unfair Commercial Practices Directive, is a major reform of the law concerning unfair business practices in the European Union. Like any European Union Directive, it needs national rules to incorporate it in each national legal system , although even without that it may...
. A directives can be either a maximum harmonisation
Maximum harmonisation
Maximum harmonisation is a term used in European Union law.If a piece of law , is described as maximum harmonisation, that means that national law may not exceed the terms of the legislation...
directives, which means member states are not allowed to deviate from it, or a minimum harmonisation
Minimum harmonisation
Minimum harmonisation is a term used in European Union law.If a piece of law , is described as minimum harmonisation, that means that it sets a threshold which national legislation must meet...
directive, which only provide a general framework. Article 249 EC, however, concedes that a directive ‘shall be binding as to the result to be achieved, upon each member State to which it is addressed, but shall leave to national authorities the choice of form and methods’.
Liability can also be based on the violation of community provisions. Article 288 of the EC explicitly regulates the liability of Community Institutions for damage caused by the breach of Community Law. This article does not give precise liability rules but refers to the general principles common to the laws of Member States. It does not mean that ‘the Community judicature must search for a solution favoured by a majority of Member States …. It simply means that the Community judicature must look to the national systems for inspiration in devising a regime of non-contractual liability adapted to the specific circumstances of the Community.’
The development of a general principle of liability for breach of Community Law is also in the Francovich case law of the ECJ. In this 1991 decision, the ECJ acknowledged liability of the Member States towards individuals for violation of Community law as being inherent in the system of the Treaty and being necessary for the effectiveness of Community of law. On the basis of the general principles to which Article 288 refers, the ECJ developed three requirements for liability:
- The rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
infringed must be intended to confer rights on individuals - The breach must be sufficiently serious
- There must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.
The fulfilment of these requirements is sufficient for a right to compensation, which is directly based in Community Law.
European tort law in action
There is a group of scholars, known as The European Group on Tort LawEuropean Group on Tort Law
The European Group on Tort Law is an academic group devoted to revising tort principles that are supposed to be common to Europe.In 1992 Jaap Spier, who at the time was a professor of law at the Universiteit van Tilburg, called together a group of scholars to discuss fundamental questions of tort...
which was established in 1992. The group meets regularly to discuss fundamental issues of tort law liability as well as recent developments and the future directions of the law of tort. The Group has founded the European Centre of Tort and Insurance Law
European Centre of Tort and Insurance Law
Since November 2000 the European Centre of Tort and Insurance Law , based in Vienna, has been an association whose purpose is*to conduct legal and comparative research in the field of national, international and common European tort and insurance law...
in Vienna.
The Group has drafted a collection of Principles of European Tort Law
Principles of European Tort Law
The Principles of European Tort Law are a compilation of guidelines by the European Group on Tort Law aiming at the harmonization of European tort law. They are not intended to serve as a model code, even though their wording may resemble statutory texts. At least with respect to form and...
similar to the Principles of European Contract Law
Principles of European Contract Law
-Definition:The Principles of European Contract Law is a set of model rules drawn up by leading contract law academics in Europe. It attempts to elucidate basic rules of contract law and more generally the law of obligations which most legal systems of the member states of the European Union hold...
drafted by the European Contract Law Commission. The full text of the Principles is available online at http://www.egtl.org/Principles.
Principles
- Basic Norm
- General Conditions of Liability
- Damage
- Causation
- Bases of Liability
- Liability based on fault
- Strict Liability
- Liability for others
- Defences
- Defences in general
- Contributory conduct or activity
- Multiple Tortfeasors
- Remedies
- Damages
Future
Despite these efforts, there is still the preliminary question of whether harmonization of tort law is feasible and desirable. There is argument to suggest that harmonization is not as self-evident as it seems to be at first. Harmonization of tort law does not need only a formal legal basis but also a substantial justification. The need for harmonization may be self-evident because the idea was that differences between the Member States were an obstacle to the achievement of an internal market. According to the ECJ, a measure of harmonization must actually contribute to improving the establishment and functioning of the internal market. A harmonizing measure therefore has to delineate the distortions that flow from the differences between national laws. Also, it would have to outline how the measures aim to prevent distortions. In any case, the advantages of these measures need to be balanced with the costs involved.There are two observations which may further question the desirability and feasibility of the harmonization of tort law. Firstly, the harmonization of tort law is hard to achieve without taking into account other compensation systems, such as private insurance and social security systems. These systems are strongly interconnected and it is undesirable to harmonize one without the others.
Secondly, harmonization of tort law would also need harmonization of administrative and criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
. Most legal systems acknowledge the possibility to be liable for damage caused by the violation of a statutory duty. Hence, if there were to be harmonization of the rules for breach of statutory duty, one should also harmonize the statutory rules that can be invoked as a basis for this tort.
What is certain is that, an agenda for further debate must be pursued. Perhaps the focus should not be on Europe united by European rules, but rather on a Europe united in diversity with harmonized rules where needed and diversity where possible.