Principles of European Tort Law
The founders of the European Centre of Tort and Insurance Law (ECTIL), the European Group on Tort Law, are pursuing a most ambitious project with the support of ECTIL and the Institute for European Tort Law (ETL): the drafting of 'Principles of European Tort Law'. [Click here] for the European Group on Tort Law’s (EGTL) Mission Statement.
Prof. Helmut Koziol, managing director of ECTIL and founding director of ETL, the current director of ETL, Prof. Ken Oliphant as well as long term associate of ETL and ECTIL, Prof. Bernhard A. Koch, are all members of this Group.
The aim of this broadly-based comparative research is to create the foundation for discussing a future harmonisation of the law of tort in the European Union, above all with respect to a possible codification of European Private Law. Further, the 'Principles' shall form a stimulus for both academics and practitioners and could serve as a guideline for national legal systems, thereby leading to gradual legal harmonisation. Finally, the present isolated tort law regulations, which are at times themselves contradictory, requires a uniform concept from the European Union.
In order to attain the necessary overview of the various legal systems, written country reports on the tort law questions to be examined have been prepared. These individual country reports address abstract issues as well as case hypotheticals. This methodology takes into account the legal systems of most of the countries of the European Union as well as Switzerland. This work is positively supplemented by contributions from the legal systems of the USA, Israel and South Africa. South Africa in particular, with its mixed system based on continental and English law, can provide valuable experience concerning legal harmonisation. With regard to the eastern expansion of the European Union in the future, a co-operation with these countries in the fields of legal integration is of particular significance. These country reports are supplemented by a comparative report in which the similarities and differences between the tort law regulations in the individual countries are presented. This basis forms the starting point for the drafting of the Principles which could be acceptable for all of the legal systems examined. Due to the diversity of the legal systems under question, it is rarely the case that, in this work, uniform regulations already exist. Rather, existing solutions require further development, or even new solutions have to be sought.
This preparatory work of the European Centre of Tort and Insurance Law has been published by Kluwer Law International. A current list of these publications is available on this website.
The Principles of European Tort Law themselves have also been published already, accompanied by a commentary and several translations. The online version of the Principles in several languages can be found on the Group's website.
The EGTL has just embarked on the next round of work on its 'Principles', ultimately aiming at a second edition of the publication which shall take into account the extensive feedback gathered in the meantime at various conferences and through academic writing. [Click here] for the Group’s Current Work Programme.
Proportional Liability
The first topic the Group embarked on since reconvening in January 2009 is Proportional Liability. The publication on this subject, edited by Israel Gilead (University of Jerusalem), Michael Green (Wake Forest University, USA) and Bernhard A. Koch, is scheduled for 2012/13 by de Gruyter in the Tort and Insurance Law series under the title "Proportional Liability: Analytical and Comparative Perspectives".
The main aim is to examine further why, how and in what situations rules of proportional liability can promote the goals of tort law. The major goal of tort law is to promote justice and fairness. Subject to considerations of justice and fairness in the allocation of risks and harms, the increase of the aggregate well-being in society (efficiency) is also a worthy secondary goal of tort law. This goal attempts to increase overall well-being by inducing potential actors to avoid harms that can be prevented at lower cost than the harm (deterrence) and by minimizing the costs of determining who should bear the costs of those accidents that do occur (administrative efficiency). Given that, the question is which rules best promote the goals of tort law. Both the traditional ‘all or nothing’ rule, and the rival ‘proportional liability’ rule, should be understood as alternative legal tools to promote these goals of tort law, and the question therefore is in which situations the ‘all or nothing’ rule does a better job in promoting these goals, and in which situations proportional liability is a better promoter.
Public Authority Liability
In the last decades, liability relating to public authorities (‘public authority liability’) has been one of the main focuses of development in tort law in Europe, with major reforms implemented or considered at national level, and a steady stream of major court decisions. During the same period, public authority liability has also been recognised in the law of the EU, and the interplay of principles of national and EU law – and additionally the ‘just satisfaction’ jurisprudence of the ECtHR – evidently warrants close attention. At present, neither of the two European tort law harmonisation projects (the PETL and Book VI of the DCFR) addresses public authority liability, and a major study considering the current state of play across Europe and the possibility of harmonisation in this area is undoubtedly overdue.
The project aims are to contribute to the understanding of the law of tortious liability relating to public authorities in the legal systems of Europe, to facilitate its enhancement where necessary or desirable, and to consider the appropriateness of extending the European Group’s PETL to cover public authority liability, and (if appropriate) the best means of effecting this.
|