On a comparative reading, Europeanization is a phenomenon that adds to, and exacerbates, the criticality of tort as a private law institution whose boundaries are, as ever, deeply contested.
This chapter explores how EU employment law encourages and/or imposes the development of new remedies for non-contractual liability at a national level. Such developments are not straightforward. Employment law predominantly focuses on the employment relationship, and legal duties and rights of the employees and employers are often implied in the employment contract. Moreover, European Union (EU) directives on employment law do not always safeguard the existence of specific remedies, if they address remedies at all. Nevertheless, the Court of Justice of the European Union (CJEU) interpretation of primary as well secondary EU law affecting employment and labour rights has forced national courts to re-evaluate the existing national remedies and national approaches towards non-contractual liability, (statutory) torts, and the law on delict. The chapter demonstrates this by analysing the effect of two distinct areas of EU employment law on the development of remedies of non-contractual liability, free movement rights and non-discrimination law, and the national responses in Sweden, Germany and the United Kingdom.
Directive 85/374/EEC on liability for defective products has all the appearances of a consumer protection measure, however, a closer examination of the Directive and related case law from the Court of Justice shows that it is first and foremost an internal market measure based on maximum harmonisation. This chapter focusses on the harmonising nature of Directive 85/374/ECC and critically reviews the impact of maximum harmonisation on the consumer protection agenda. It also explores the respective competences of the European Union and member states and the room for manoeuvre left to member states. The chapter identifies the EuropeanCommission as the key player in any future development of Directive 85/374/EEC.
This chapter looks at the emergence of data protection as a distinct area of law, including the European initiatives that led up to the enactment of the 1995 Data Protection Directive (and the continuation of that approach in the new 2016 Regulation). It discusses the relationship between this law and traditional privacy tort law concerns, suggesting that whereas tort law has the potential to protect against harm from the disclosure of propositional information, it is less suited to address more surreptitious risks arising from modern digital technology. After examining how the UK has implemented European data protection rules, including in key judicial decisions over the past 15 years, the chapter concludes by asking how far, in the light of Brexit, the UK may be tempted to follow a different model of regulation in the future, such as the US approach, with its lighter supervision of private sector data processing.
The law governing compulsory motor insurance is fundamental to the tort system and subject to considerable harmonisation. It is a vital part of the life cycle of liability and liability insurance. This chapter considers the expansive vision of compulsory insurance as a guarantor of compensation to third parties under European Union (EU) law alongside the subtle and not so subtle resistance evident in the English courts. The need to identify the proper limits on insurer liability to victims of motor accidents is made more pressing by Brexit. United Kingdom law will have to decide – and soon – whether to voluntarily follow EU standards on third-party protection or endanger cross-border travel and trade.
This chapter investigates the complex interaction between EU law and national rules on compensatory remedies. It starts by explaining the problems lying behind the use of the label of ‘EU tort law’, which is not a recognised category and generates confusion unless some independent definition of the concept of ‘tort law’ is selected. The chapter proposes to define ‘tort law’ by reference to the function of the examined rules, and in particular to the function of regulating compensatory remedies. Following this definition, the chapter discusses the different ways in which EU law regulates compensatory remedies; first, by looking at EU competence to regulate compensatory remedies in its two guises, legislative and judicial, and then by examining the different modes in which the EU regulates compensatory remedies. It argues that these modes could be classified in a three-fold manner: 1) as involving complete harmonisation, 2) as involving only partial harmonisation, where national provisions constitute gap-fillers and/or provide residual rules, and 3) as involving only rudimentary harmonisation, where EU law provides merely regulatory standards and the link between their breach and a compensatory obligation is established by national law. In terms of the substantive content, the chapter looks at EU rules governing damages actions for breach of competition law, liability for damage caused by products, the Francovich remedy, damages for infringements of intellectual property rights, and the relevant rules in consumer Directives. The chapter concludes by discussing briefly the consequences of codifying private law at the EU level for the continued applicability of national rules on compensatory remedies in the sphere covered by the ‘scope of EU law’.