European tort law
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Part of the common law series |
Tort law |
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(Outline) |
Trespass to the person |
Property torts |
Dignitary torts |
Negligent torts |
Principles of negligence |
Strict and absolute liability |
Nuisance |
Economic torts |
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Defences |
Liability |
Remedies |
Other topics in tort law |
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By jurisdiction |
Other common law areas |
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European tort law, as a term, is not strictly defined and is used to describe a number of various features concerning
History
After
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 start 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 harmonisation 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 others.
Comparative law
In the institutions of the European Union, 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 Union law. The courts however, usually confine themselves to general expression like 'legal principles common to all or several Member States.'[4]
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.
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
The legal framework of
Specifically in the area of tort law, a number of rules can be found in tort law directives.
Liability can also be based on the violation of community provisions. Article 288 of the TFEU explicitly regulates the liability of Community Institutions for damage caused by the breach of Union 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.'[6]
The development of a general principle of liability for breach of Union Law is also in the
- The rule of law 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 Union 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
The Principles of European Tort Law are a compilation of guidelines by the
The Principles of European Tort Law are intended to serve as a common framework for the further development of national tort laws and also of singular European legislation, which could avoid a further drifting-apart of piecemeal rule-making both on a national and on the European level.
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 harmonisation of tort law is feasible and desirable. There is argument to suggest that harmonisation 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.
There are two observations which may further question the desirability and feasibility of the harmonisation of tort law. Firstly, the harmonisation 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 harmonise one without the others.[10]
Secondly, harmonisation of tort law would also need harmonisation 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 harmonisation of the rules for breach of statutory duty, one should also harmonise the statutory rules that can be invoked as a basis for this tort.[2]
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 harmonised rules where needed and diversity where possible.
References
- ISBN 9781847311238
- ^ ISBN 9780199672264
- Walter van Gerven, 'The Emergence of a Common European Law in the Area of Tort Law: The EU Contribution.
- ^ Koen Lennaerts, Interlocking Legal Orders in the European Union and Comparative Law, ICLQ 52 (2003), 873–906
- ^ Fairchild v Glenhaven Funeral Services Ltd & Others [2002] 3 All ER 305
- ^ a b 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).
- ^ ECJ 19 November 1991, Joined cases c-6/90 and C-9/90, ECR 1991, i-5357 (Francovich and Bonifaci v Italy)
- ^ "European Group on Tort Law". www.egtl.org. Retrieved 15 January 2022.
- ^ Van Gerven, W. ‘Harmonization of Private Law; Do we need it?’ CMLR 41 (2004), 505.
- ^ Magnus, U (ed.), The Impact of Social Security Law on Tort Law,Vienna, New York; Springer, 2003