Principles of european tort law - A harmonization project



I. Introduction: goals and objectives

Everyone who is a little aware of the development of tort law in various European countries will have noticed that the foundations of tort law in these legal systems differs considerably. There is not only the traditional boundary between the common law and the continental civil law countries. Also, legal systems on the continent e.g. France and Belgium, take a dramatically different approach than e.g. Germany. These differences in tort law today explain why there has, until now, not been an attempt to harmonise the entire field of tort law in a consistent manner. The goal of the proposed project is to draft principles of European tort law, according to the lines set out in this document.

II. Need for principles

As we mentioned in the introduction, there is an increasing trend to harmonising the laws in Europe. This is particularly true for contract law, but also counts for specific areas of tort law, e.g. product liability. However, there has not until now been an attempt to harmonise tort law by the European Union or the Council of Europe. This may be caused by the problems we sketched in the introduction, being that the systems are basically too much different. Therefore one can notice that the only area in which there has been harmonisation so far, was product liability. An attempt to harmonise liability for defective services failed. The same could be noted in the approach followed by the Council of Europe in the Convention on Liability for substances harmful to the environment (the so called Lugano Convention). The approach of the Council of Europe and the European Union will therefore necessarily be fragmentary, without a focus for the main principles.

Therefore, we propose to address the fundamental questions underlying every tort law system. Thus, we shall aim at identifying these principles, thus searching for a common law of Europe, without the necessity yet to lay these principles down in formal legal texts, such as a European civil code.

Identifying the common principles of European tort law is obviously indispensable if it would come to such a European civil code. Harmonisation at a higher level can only be possible if it is first made clear which is which the common ground that underlies all the legal systems concerned with respect to the law of tort. Moreover, the finding of these principles will already have an important academic as well as practical value in itself since it will teach the academic and practitioner the fundamental questions underlying the law of tort in a particular country as well.

III. Working method

We propose to search these principles of European tort law according to the following work method. We shall work with a small group, identified in VI, and work around hypotheticals, country and comparative reports as follows:

A. Hypotheticals, Country and Comparative Reports

1. Firstly, concerning a specific theme, hypotheticals are drafted by one of the members.

2. Secondly, these hypotheticals are answered in individual country reports. In addition the specific theme concerned is addressed in an abstract manner and a general insight is offered.

The main advantage of this methodology is that there is no classic/traditional comparison of rules, but a more case oriented comparative methodology which can analyze whether the solutions in the various legal systems are indeed different, notwithstanding the legal rules on which they are based. Nevertheless, the main features of the legal system concerned shall be briefly sketched as well.

3. Thirdly, a comparative report is drafted. Emphasis shall be put on this comparative report during the discussions at the plenary meetings. In addition, the comparative reports should have an important impact when it comes to drafting the principles for the specific matter concerned. Hence, it might be desirable that the comparative reports conclude with a brief overview of "costs and benefits" of the various approaches/solutions chosen in the various legal systems. This summary of the comparative reports could also identify the main points on which there is agreement in the legal systems and the main points of discussion as well in order to identify the basic normative questions that the group should deal with. This summary at the end of the comparative report could clearly identify the matters to be discussed. Hence, the comparative report could guide the agenda for the plenary meeting and thus structure the debate. In addition, it could also be a first step in the direction of the drafting of principles.

The results of these first steps can be published in books. This seems desirable for the future for the subsequent topics to be dealt with as well. The obvious advantages are that the outside world does not have to wait for the final principles to be published and the activities of the group can be made known to the larger legal community. In addition, through a speedy publication, the work done by the national reporters is not lost.

B. Plenary Meetings, Drafting of Principles and Comments

The important goal of the comparative report which is drafted as a result of the country reports to the hypotheticals should be a contribution to the drafting of principles. Hence, the plenary meetings shall be devoted to the question how this preliminary work can be translated into principles. The discussions concerning the principles could take place in several phases:

1. First a general discussion could take place around the hot issues as identified in the country and comparative reports. Attention should then especially be given to those points where the various solutions differ and to the question of what the fundamental options are that the group wants to chose concerning the particular topic. In addition, attention can already be given after this first debate to the question whether it is possible and, if so, how to translate these options chosen into a legal principle, norm or text. The formulation of principles obviously has priority; the legal texts can also be drafted at a stage when the principles for all topics are more or less fixed in order to avoid double work.

2. As a result of the discussion in the plenary session, clear directions should be given to a reporter who shall then make an initial draft taking into account these first discussions.

3. This initial draft will then be distributed to all members five weeks prior to a second plenary meeting. Obviously, at this second plenary meeting, there will not be another discussion concerning the desirability of a certain option. This should in principle already have taken place. However, on the other hand there should be a fully open debate on the basis of the initial draft. Preferably members have already submitted comments on the first draft, which has been distributed both to the reporter and to the chairman of the particular session, who can then structure the discussion. Although we should avoid to repeat discussions that have taken place at the first step, it is on the other hand equally clear that the discussions concerning the initial draft should take place with an "open academic mind", meaning that if there is a majority in favour of changes, this should be possible as well.

It is important to stress that we should avoid both at the first as well as at the second step of drafting the principles to discuss in detail the legal regime in a particular country. This should be known to the members who have all read the country reports and the common denominator has been identified earlier in the comparative report. Hence, the debate can immediately take place at a more abstract level, taking into account the results of the comparative analysis and tackle the more heavy normative questions.

4. A final step in this second phase of the drafting should be the drafting of comments on the principles which have been accepted. Time permitting, a reporter could already try to make these comments in an earlier phase if the general direction given during the first discussion is more or less clear. Otherwise the commentary can be drafted when members agree in the second phase on the principles drafted. The commentary itself should probably not necessarily be discussed at the plenary session, but distributed to the members who can all provide written comments to the reporter. It is important that in this commentary some reference is made to the relationship between the proposals in the principles and the country reports or at least the initial comparative report. Thus, a clear link is provided with the first phase of the research. Moreover, it allows the lawyers in particular countries to identify what the consequences of the principles shall be for the legal regime in their country. In addition, we might also want to relate the principles which have been drafted to other harmonizing initiatives, e.g. at EC-level or in the literature. These latter two steps seem of great importance in order to avoid the impression that the principles drafted by our group stand alone. Ideally it might even be preferred that these steps (relation to country reports and other initiatives) are taken at the phase when the first ideas are discussed. The doctrine of other scholars might indeed provide guidance to answering the normative questions we shall have to discuss during the plenary sessions. However, taking other initiatives (such as e.g. the American restatement on torts) into account might provide a considerable work load. In some cases research assistants may be helpful, but these may not be available to everyone of us. In that case these other initiatives and the link with the country reports can also be provided at a later stage.

C. Summary

Summarizing, the structure of the work on the principles shall be structured as follows:

A 1. Drafting of hypotheticals and questionnaires with general questions

2. Country reports

3. Comparative reports with

  • identification of main points of difference and agreement
  • identification of the basic normative issues to discuss in the plenary sessions
  • suggestions for possibilities of drafting principles

B 1. First general discussion to:

  • identify fundamental options
  • provide directions to a reporter

2. Initial draft by reporter (possibly already with comments):

  • sent 5 weeks before general meeting to all members
  • members send written comments to reporter and chairman

The following topics have already been addressed by the group in earlier work:

  • The issue of wrongfulness

3. Second plenary discussion to discuss draft

4. Redrafting of principles and comments

5. Relating principles to:

  • country / comparative reports
  • other harmonizing initiatives
IV. Topics and timing

Next, the subsequent topics shall be addressed by the group, according to the lines set out in III:

  • Causation
  • Damage
  • Fault
  • Strict liability
  • Drafting of principles
V. Previous work

The group which proposes to draft the principles on European tort law has already done previous work on which they can rely. In this respect, we can point to e.g. the following:

1. A book on the limits of liability, edited by Prof.Dr. Jaap Spier, attorney general at the Dutch Supreme Court, published by Kluwer International.
2. A next book on hypotheticals, to be published again by Kluwer International and edited by Prof.Dr. Spier.
3. A book edited by Prof.Dr. Helmut Koziol on wrongfulness, including papers on the boundary between contract and tort and the interests at stake in tort law.

VI. Academics involved

The Project has involved outstanding academics not only from Europe but also from other continents. For the full list of members and guests. please, click here.

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