European tort law

The term European Tort Law 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.

History

After WWII, 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. [1]

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 code. 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. [2] European tort law is not only about slowly growing harmony in certain respects but also about rich diversity in many other.

Europe: the supranational body

Comparative Law as a converging tool

In community institutions, such as the Council, the Commission and the Court, where lawyers from all Member States work closely together, different legal backgrounds inevitably play a role. [3] 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.’ [4]

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’. [5] In this sense also, Comparative Law is a converging tool.

European Union: legal framework

The legal framework of the European Union 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. [6] 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. [7] 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 a 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 divising a regime of non-contractual liability adapted to the specific circumstances of the Community.’ [8]

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. [9] On the basis of the general principles to which Article 288 refers, the ECJ developed three requirements for liability:

1) the rule of law infringed must be intended to confer rights on individuals

2) the breach must be sufficiently serious

3) 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 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.

ummary of the Principles of European tort law

# TITLE I: Basic Norm
#* Chapter 1: Basic Norm
# TITLE II: General Conditions of Liability
#* Chapter 2: Damage
#* Chapter 3: Causation
# TITLE III: Bases of Liability
#* Chapter 4: Liability based on fault
#* Chapter 5: Strict Liability
#* Chapter 6: Liability for others
# TITLE IV: Defences
#* Chapter 7: Defences in general
#* Chapter 8: Contributory conduct or activity
# TITLE V: Multiple Tortfeasors
#* Chapter 9: Multiple Tortfeasors
# TITLE VI: Remedies
#* Chapter 10: Damages

The future of European tort law

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. [10] 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. [11]

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. [12]

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.

References

[1] Walter van Gerven, The European Union. A Policy of States and Peoples, Oxford, Hart 2005

[2] Cees van Damn, 2006, European Tort Law Oxford University Press.

[3] Walter van Gervan, ‘The Emergence of a Common European Law in the Area of Tort Law: The EU Contribution.

[4] Koen Lennaerts, Interlocking Legal Orders in the European Union and Comparative Law, ICLQ 52 (2003), 873-906

[5] Fairchild v Glenhaven Funeral Services Ltd & Others [2002] 3 All ER 305

[6] Peter-Christian Muller-Graf, ‘EC Directives as a Means of Private Law Unification’ in Hartkamp et al. (eds), Towards a European Civil Code (New York: Aspen Publishers, 2004).

[7] Cees as above n 2

[8] "Ibid"

[9] ECJ 19 November 1991, Joined cases c-6/90 and C-9/90, ECR 1991, i-5357 (Francovich and Bonifaci v Italy)

[10] Van Gerven, W. ‘Harmonization of Private Law; Do we need it?’ CMLR 41 (2004), 505.

[11] Magnus, U (ed.), The Impact of Social Security Law on Tort Law,Vienna, New York; Springer, 2003

[12] Cees as above n 2