National Court Practice and European Tort Law
  1. Introduction
  2. Project Goals
  3. Part Projects:
    1. Natural Causation
    2. Damage
    3. Misconduct
  4. Publication
I. Introduction

The Institute for European Tort Law supported the European Group on Tort Law (EGTL) in their efforts to draft the Principles of European Tort Law (PETL). The work of the Group led to a series of well-received publications with Kluwer Law International Publishers and the ‘Principles’ themselves were published in 2005. The Group reconvened in 2009 to work on expanding the PETL’s scope and to update and refine its content in the light of subsequent scholarly debates and developments in national and EU law.

In the course of the Principles’ project it became clear that one major groundwork necessary for solid research in tort law today as well as for analysing proposals for the future had yet to be completed: Even though no legal system, neither civil nor common law, can be properly assessed without a thorough analysis of the law in practice (in particular before the courts), an exhaustive comparative study of leading cases is not yet accessible, neither for scholars nor practitioners.

While there certainly are single country databases or other publications of court decisions, they do not give access to a comparative selection of recurring issues in the various legal systems. However, it is most desirable to research tort law from the perspective of real-life issues in a familiar analytical structure rather than within geographical limits of a multitude of separate national collections.

The requirements for such a compilation obviously go way beyond a mere collection of case texts which as such would not bring about any significant added value in that respect. Bringing together case law from as many jurisdictions as possible is only one preparatory step along the way – what is truly necessary and essential is a thorough examination of all such findings both from the perspective of national expertise as well as through the eyes of an all-encompassing comparison, both horizontally as well as vertically.

For the purposes of a future harmonisation of tort law in Europe in particular, it is even more important to compare and examine any proposals for upholding or changing existing rules on the basis of such a thorough analysis of current case law. The EGTL is not the only group of scholars working in this field. In particular, the so-called ‘Study Group on a European Civil Code’ and its ‘Osnabrück Working Team on Torts’ under its chairman, Prof Christian von Bar (a former member of the EGTL), has completed its proposal for a future tort law codification as part of a projected European Civil Code. This section is now contained in Book IV of the Draft Common Frame of Reference (DCFR). A comparison between the various drafts can also only be done on the basis of a comprehensive account of current practice.

The Institute for European Tort Law has therefore embarked on an extensive project which ultimately shall create a scientific Corpus Jurisprudentiae of European tort law that shall fill the substantial gap outlined above.

To date, the project has been directed by Prof Bénédict Winiger (University of Geneva, Switzerland), Prof Helmut Koziol (European Centre of Tort and Insurance Law, Vienna, Austria), Prof Bernhard A Koch (University of Innsbruck, Austria), and Prof Reinhard Zimmermann (Max-Planck-Institute for Comparative and International Private Law, Hamburg, Germany). However, changes to the editorial team are foreseen for forthcoming projects under this series.

II. Project goals

This project aims at bringing about a comprehensive comparative compilation of court decisions on particular areas of tort law in Europe. It is not limited to a mere bibliographic accumulation of case law as such, however: The entire body of cases collected are put together into an analytical structure based on real-life issues (though from a legal perspective), which is essential in order to avoid single-jurisdictional bias. As explained further below, the selection is guided by a multi-step procedure designed to bring together all tort-related aspects of the relevant topic in question throughout Europe. The cases are commented upon both from a national as well as a comparative point of view and the various issues are preceded by introductory comments and overviews. Finally, there are extensive references to the most important proposals for the harmonisation of European tort law, which shall as a whole allow a comparison of the past, the present and the future of this core element of tort law both on a national as well as on a European level.

The project will therefore help tort law practitioners as well as researchers to identify specific issues of the topic in question in an easily-accessible comparative perspective. For academics, the findings of this project will provide invaluable help for the vivid ongoing discussions in the course of the quest for a future harmonisation of European tort law.

III. Part Projects

1. Natural Causation

The first topic tackled (and already completed) within the framework of this huge project was natural causation. It was published as the first volume of the "Digest of European Tort Law" series.

The publication is divided into 11 fundamental categories of “natural” causation. Within each category, the selected cases, solutions and comments are presented in the following manner: each category begins with a historical introduction, followed by the reports of 25 European jurisdictions, the decisions of the European Courts of Justice, the solutions of hypothetical cases according to the Principles of European Tort Law and finally by a comparative summary.

2. Damage

The second project, which came to an end in 2011 is damage. The publication is divided into 28 categories and is structured in a manner identical to the first project: ie each case is presented in the form of facts, decisions comments. Each category also begins with a historical introduction, followed by the reports of 26 European jurisdictions, the decisions of the Courts of Justice of the European Union, the solutions of hypothetical cases according to PETL and the DCFR and finally by a comparative summary.

3. Misconduct
 
This study addresses one of the most important bases for the imposition of tortious liability, which is here called ‘misconduct’. The term itself may not be immediately familiar, having been chosen as a neutral label that avoids any prejudgement of how the underlying concept ought to be classified – some legal systems addressing it under the heading ‘fault’, others under ‘wrongfulness’ or ‘unlawfulness’. However, the idea to which it refers – the failure to meet a given standard of required conduct as a basis of tortious liability – ought to be comprehensible, whatever legal system’s perspective one applies. As with the first two Digest volumes - on 'natural causation' and on ‘damage’ - this new volume of the Digest is conceived as a contribution to a better understanding of tort law in Europe. Moreover, if at some time in the future a European Civil Code should be introduced, lawyers and judges would have an immediate need for case law to give specific content to its provisions. To fill this gap, lawyers and judges may initially find it useful to refer to the cases collected in this Digest, which provides a foundation upon which a genuinely European jurisprudence can be built.