Making European Tort Law: The Game and its Players
In the last decades, building a common European tort law has become a primary goal for many European institutions and research groups. On the one hand, EU institutions frequently highlight the need of simplifying the current diversity in European tort law, and try to achieve this goal injecting the European legal framework with (so far quite incoherent) pieces of legislation. On the other hand, many research groups aim to enhance the Europanization process through means that are much differentiated one to the other. Some of these groups (like the European Group on Tort Law and the Study Group on a European Civil Code) adopt a top-down approach, and seek to draft a ‘soft’ European tort law. Others (e.g. the ‘Ius Commune Casebook for a Common Law of Europe’ project and the ‘Common Core of European Private Law’ project) follow a bottom-up path, committed as they are to develop a better knowledge on tort law across the European law-users. Despite the number and the qualities of such enterprises, there is no agreement on what should be done nor on who should do it. It is from this debate that the paper takes off, aiming to offer an overview of the endeavours currently under way, of the different techniques and methodologies they adopt, and of the possible outcomes that they are likely to produce in the short run as well as in the long run.
The “Principles of European Tort Law”*
The author presents the major aspects of the Principles of European Tort Law (PETL). These have been drafted by the European Group on Tort Law in order to provide a basis for discussing a future harmonisation of tort law in Europe, which must be achieved not only by some codification on the EU level, but also by way of gradual convergence of the laws at their own initiative. The Principles of European Tort Law are not a mere restatement of the law as is, not least due to the fact that there are significant differences between the European jurisdictions when it comes to attributing a loss. Indeed, many concepts that are commonly accepted at present are being preserved, since there is no obvious need to abandon the experience accumulated throughout Europe so far. Nevertheless, the Principles try to merge these traditional approaches with a modern perspective on how the law of torts should develop in the future.
Unification of tort law : fault
The Foundations to Tort Law in European legal systems differ considerably. Until recently, there has been no attempt to harmonize the entire field of Tort Law in a consistent and comprehensive manner. A group of Tort Law experts, the European group on Tort Law, is currently engaged in systematically researching the most fundamental questions underlying the various tort law systems. The result of their work is this important series of books, which is intended as a contribution to a common law of Europe. In the present volume, the authors provide an overview of fault, traditionally considered the most important and most general prerequisite to, and the basis of, liability and its main criterion of imputation. It thus complements the two volumes on "Strict Liability and Liability for Damage Caused by Others" (vol. 6 and 7 of the present series), which have set forth the two other important reasons or principles by which liability is justified. The notion of fault is examined under both its philosophical and functional aspects, an approach which additionally reveals the evolution of this concept from a traditionally subjective to a modern and objectivised understanding. These divergences are reflected in the different legal systems, as demonstrated by an analysis of actual cases. Furthermore, this volume contains an appreciation of the role of fault from the perspective of the Economic Analysis of Law, as well as a comparative report which attempts to describe the most important elements identified by the individual country reports and to draw some conclusions in view of the harmonisation of fault-based liability and its relation with the other bases of liability. In summary, this volume shows the common grounds of liability based on fault in the various legal systems under examination, whilst concurrently providing the academic and the practitioner with the fundamental issues of this type of liability in the countries covered.