This introductory chapter examines the meaning of the term ‘European Union tort law’ and distinguishes it from studies examining the more loosely defined ‘European tort law’. European Union tort law is found in a number of different areas of law ranging from product liability to competition law. It plays an important role in ensuring the effectiveness of EU law and that EU citizens are able to obtain compensation for their losses resulting from breach of EU law. Owing to its diverse and piecemeal nature, its true breadth is often overlooked. Chapter 1 also highlights the cultural tensions underlying the development of EU tort law and the role harmonisation proposals play in this context.
Christine Riefa and Séverine Saintier
Directive 2005/29 provides a blanket ban on unfair commercial practices, which harm consumers’ economic interests. The Directive is said to give a pan-European floor to remedying economic torts and yet, the text itself does not make any reference to being a ‘tort instrument’. The absence of the notion of ‘tort’ in the Directive is surprising given the fact that it requires member states to offer ‘tort’-like remedies, including interim as well as final injunctions for the cessation or prevention of unfair commercial practices. In addition, the scope of the Directive explicitly covers unfair practices ‘before, during and after a commercial transaction’ thus encompassing situations where no contractual link will exist and falling necessarily into the remit of tort law. The absence of any mention of tort undoubtedly brings some ambiguity that the national legal orders have had to grapple with. It is therefore not unexpected that the technical choices member states made in order to implement the Unfair Commercial Practices Directive (UCPD) vary greatly. The question of the impact of the UCPD on the common law system of torts is particularly important, given the limits of tort as a tool to address economic loss, and is the focus of this chapter. The UK has opted for a stand-alone piece of legislation, with the Consumer Protection from Unfair Trading Regulations 2008 (UTR) amended by the Consumer Protection (Amendment) Regulations 2014 which introduces a right of private action. This chapter contends that the introduction of the UTRs in 2008 and their amendment in 2014 is a vast improvement of the protection of consumers, although it is clearly still a work in progress. After reflecting on the inadequacy of traditional torts in remedying economic loss, the chapter demonstrates that in the UK, the UCPD supplants the old traditional barriers and there is no longer a need to decide if a claim is in tort or contract, offering consumers a much easier avenue for redress. Nevertheless it remains doubtful that consumers’ economic losses are going to be adequately compensated, given the limitations of the right of private redress introduced in 2014.
These provisions provide a novel taxonomy and to an extent novel rules. The bare bones are the concepts of ‘damage’, ‘accountability’, causation, defences and remedies. Many situations are covered by specific provisions. In the case of strict or stricter liability all are. Beyond this for other situations involving intention or negligence, there is included an ‘expansion joint’ for development of the law. The key to the whole structure is that to give rise to a remedy there must be ‘legally relevant damage’. This chapter provides an analysis of the structure of the provisions to assess their value for study by tort lawyers.
Edited by Paula Giliker
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.
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.
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.