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Edited by Paula Giliker

The Research Handbook on EU Tort Law focuses on the study of the law of tort/delict/non-contractual liability of the European Union and examines the institutional liability of the EU, Francovich liability, and liability arising from a variety of EU secondary legislation (directives/regulations). The impact of EU tort law on national legal systems is wide-ranging, covering areas such as consumer law, competition law, data protection law, employment law, insurance law and financial services law. It also discusses the potential development of a European culture of tort law and harmonisation. This comprehensive Research Handbook contains contributions from leading authors in their field, representing a cross-section of European jurisdictions. It offers an authoritative reference point for academics, students and practitioners studying or working in this field, but one which is also accessible for those approaching the subject for the first time.
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Miquel Martín-Casals

The European Group on Tort law presented the Principles on European Tort Law (PETL) in Vienna in May 2005. This chapter describes the work of the group which reconvened in 2009 to work on expanding the PETL’s scope and updating and refining its content in the light of subsequent scholarly debates and developments in national and European Union law. In the years to come, the group aims to publish a series of preliminary studies on topics not addressed in the initial edition of the PETL or otherwise warranting consideration, culminating with the publication of a revised and expanded edition of the PETL by the end of this decade.

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Edited by Paula Giliker

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Kathleen Gutman

This chapter surveys the basic contours of the non-contractual liability of the European Union (EU or Union) in light of recent jurisprudential and institutional developments. It is divided into three main sections. In the first, the nature and scope of Union non-contractual liability is discussed, with emphasis put on the importance of this concept for delineating the jurisdiction of the Union courts and the application to claims involving potential Union liability in the absence of unlawful acts and conduct. In the second section, the changes brought by the Lisbon Treaty that impact Union non-contractual liability are evaluated, which relate to the former pillars, the parties and the Charter. In the third section, the substantive conditions to engage Union non-contractual liability, concerning the existence of a sufficiently serious breach of a rule of EU law that is intended to confer rights on individuals, the occurrence of damage and the causal link, are examined. Through this analysis, the author argues that although there may be a schism between the principle and practice of Union non-contractual liability, certain recent developments in the case law hold promise for helping to ensure that Union non-contractual liability constitutes a meaningful route for claimants and for advancing the research agenda of EU tort law.

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Okeoghene Odudu and Albert Sanchez-Graells

This chapter assesses the framework enabling private parties to enforce competition law and the implications this has both in relation to the evolution of national tort law in European Union (EU) member states and for an incipient acquis of EU tort law. It considers how the law has evolved since the Court of Justice of the European Union (CJEU), in Courage v Crehan, confirmed that those able to show that they have suffered loss as a result of a competition law violation are able to recover compensatory damages and the progress made since the adoption of Directive 2014/104/EU on antitrust damages. The chapter focuses on four selected topics: the erosion of the requirement of fault; the erosion of individual responsibility; the extension of recoverable losses; and modifications to the burden of proof arising from a presumption of damage resulting from certain types of anti-competitive behaviour. It concludes by questioning whether traditional tort law doctrines at member-state level can survive under the pressure of these EU law developments. The chapter indicates areas of uncertainty that may serve to guide future research efforts.

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Michael Faure

This chapter deals with the harmonisation of EU tort law from the perspective of the economic analysis of law. The chapter discusses the basic principle of competition between legal orders as a starting point of the economics of federalism. It shows that the transboundary character of specific problems may be an argument in favour of centralization. Then the danger of a so-called race-for-the-bottom is discussed as well as the traditional argument of the European discourse that the harmonisation would be needed to further market integration. The reduction of transaction costs is also advanced as an argument in favour of harmonisation. The chapter also discusses the possibility of providing a minimum level of protection, although arguing that it does not fit into the economic rationale. A few policy recommendations and concluding remarks conclude the chapter.

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Paula Giliker

This final chapter reflects on earlier chapters in this volume and examines the nature of EU tort law, to what extent common problems may be found across different areas of law and the extent to which tensions remain between national and EU tort law. It addresses the nature of any emerging culture of EU tort law and how attempts at harmonisation have provided soft law models for future courts and legislators. It also considers the future of EU tort law as a basis for providing EU citizens with compensation for wrongs committed against them and as a distinct discipline for academic study.

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Marie-Pierre F. Granger

This chapter examines the application by national courts of the Francovich doctrine of state liability for breach of European Union (EU) law. After a review of the existing literature, it analyses a selection of reported decisions from all member states of the European Union addressing EU law based liability claims decided over the last decade. The analysis suggests that the principle is generally well accepted, even in relation to damages caused by legislative and judicial acts, or regulatory or supervisory failure, which are in breach of EU law, and that it has found its place alongside, or within, national tort regimes. Still, as national courts apply EU conditions restrictively, and impose various additional substantive or procedural requirements, Francovich claims rarely lead to actual compensation, thus casting doubt about its contribution to the enforcement of EU law and the effective protection of individuals’ rights.

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Keith Stanton

This chapter considers the impact that European Union (EU) law has on financial services torts from the perspective of English law. The basis for such actionability is usually a breach of rules laid down by the Financial Conduct Authority in its handbook. Many of the current rules in that handbook have their origin in or have been influenced by EU legislation. The tort produced by this legislation is an important piece of consumer protection law providing protection for persons damaged by the mis-selling of financial products.

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Jonas Knetsch

Is there a culture of European tort law in Western Europe? Based on a chronological approach, this chapter gives a critical assessment of the assumption that national tort law systems have already undergone a massive Europeanisation. Despite an undeniable incidence of European Union law on tort law and considerable academic research in this field, tort law cultures in Western Europe still seem to remain founded on national structures and ways of thinking. The author addresses the question as to why national tort law cultures are so reluctant to adopt the broader phenomenon of the Europeanisation of law and draws parallels to the adjacent legal field of insurance law, which has become over the past years a more fertile ground for European legal culture.