EUROPEISATION OF TORT LAW



   MICHAL VLASÁK

                                 Faculty of Law, Masaryk University



   JAN HURDÍK

   

   

   

   

   Key words

   europeisation of law, regulatory europeisation of tort law, spontaneous europeisation of tort
   law, Principles of European Tort Law

   

   Resumé

   Article deals with legal aspects of europeisation of tort law. The aim of this paper is to
   show individual methods of harmonization of tort law.

   

   The term europeisation can be analyse from two insights. Firstly, it refers to the general
   meaning often used on the field of political science and secondly this term contains
   intradisciplinary approach. Article focuses on the later one while dealing with europeisation
   of law, particularly tort law.

   

   Europeisation of law may be understood as a phenomenon of broadening of the scope of European
   law, as well as the emergence of new legal disciplines in Europe, linked to European
   integration.

   

   Europeisation has three main consequences: a fundamental change in the systems of sources of
   law in the legal systems of European countries, a coming closer of legal systems which
   contributes to the break up of the common law family of legal system as well as of the legal
   systems derived from continental European countries, and changes in terms of methodology of
   legal sciences.

   

   Harmonization of European tort law is conditional on regulatory processes by way of EC
   regulations and directives and on the other hand by way of spontaneous europeisation of tort
   law.

   

   Nowadays, regulatory europeisation in the field of tort law is only fragmentary and
   unsystematic. The European Union institutions followed the aim of creating a single European
   market without barriers to trans-border trade and exchange. However, the heart and soul of
   tort law remained outside the scope of scrutiny and control exerted by the European
   institutions. In the area of tort law, the activities of the European institutions were
   confined only to choice of law, partly to consumer matters and matters relating to insurance
   against civil liability in respect of the use of motor vehicles. Probably the most important
   is the Council Directive 85/374/EEC on the approximation of the laws, regulations and
   administrative provisions of the Member States concerning liability for defective products.

   

   Spontaneous europeisation, also called harmonization in weak sense or soft law, means the
   effort of distinguished scholars and practitioners from several states to try to identify the
   common core of European systems of tort law and to restate the result in an accesible manner.
   This approach is not new but has long legal tradition beginning at Roman law.

   

   Draft of the Common Frame of Reference (DCFR) also belongs to the soft law category. It
   contains principles, definitions and model rules of European private law. Book VI. of DFCR
   also contains rules of noncontractual liability arising out of damage caused to another. In
   contrast to other soft law projects DFCR does not include only general principles but also
   contains particular rules.

   

   Principles of European Tort Law (PETL) project is one of the most interesting legal tool from
   the soft law category, therefore last part of the article focuses on their fundamental
   characteristic.

   

   The European Group on Tort Law is a group of scholars in the area of tort law 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 drafted a
   collection of Principles of European Tort Law (PETL) similar to the Principles of European
   Contract Law (PECL) drafted by the European Contract Law Commission. Within the framework of
   this cooperation, the Group has presented the Principles in a public conference on May, 2005,
   in Vienna.

   

   In order to attain the necessary overview of the various legal systems, written country
   reports on the tort law have been prepared. Commentary was written from these country reports
   and was issued at the same time as PETL.

   

   The goal of PETL is to serve as a basis for the enhancement and harmonization of the law of
   torts in Europe. They can serve as a kind of framework for the further development of a
   harmonised European tort law. The Principles of European Tort Law are a compilation of
   guidelines aiming at the harmonization of European tort law.

   

   Under the PETL principles it is clear that a person has to compensate another person`s harm
   only if certain requirements for liability are met. In other words, a person`s obligation to
   render compensation is only established if the damage is legally attributable to him. The
   basis norm thus makes clear that “casum sentit dominus”. The starting point is therefore that
   every person has to bear his loss himself, which is only departed from if there is a legal
   basis for shifting it to another. The second starting point is that damage has to be
   compensated. Damages serve primarly the aim of compensation but also prevention. The core and
   also the conlusion is that a person to whom damage to another is legally attributable is
   liable to compensate that damages.

   

   Principles of European Tort Law may serve both as a source and as an anchor for law reform at
   the national level. Principles may stimulate the debate about the future of this tremendously
   important filed of law in Europe.

   

   Contact – email:

   michal.vlasak@nsoud.cz

   vlasakmichal@seznam.cz