Tort
European Union

The legal framework of the European Union consists of the treaties, regulations, directives and case law. Specifically in the area of tort law, a number of rules can be found in tort law directives. Examples of directives include the Product Liability Directive and the Directive on Unfair Commercial Practices. A directives can be either a maximum harmonisation directives, which means member states are not allowed to deviate from it, or a minimum harmonisation directive, which only provide a general framework. Article 288 of the TFEU, however, concedes that a directive 'shall be binding as to the result to be achieved, upon each member State to which it is addressed, but shall leave to national authorities the choice of form and methods'. Liability can also be based on the violation of community provisions. Article 288 of the TFEU explicitly regulates the liability of Community Institutions for damage caused by the breach of Union Law. This article does not give precise liability rules but refers to the general principles common to the laws of Member States. It does not mean that 'the Community judicature must search for a solution favoured by a majority of Member States.... It simply means that the Community judicature must look to the national systems for inspiration in devising a regime of non-contractual liability adapted to the specific circumstances of the Community.'

The development of a general principle of liability for breach of Union Law is also in the Francovich case law of the ECJ. In this 1991 decision, the ECJ acknowledged liability of the Member States towards individuals for violation of Union law as being inherent in the system of the Treaty and being necessary for the effectiveness of Community of law. On the basis of the general principles to which Article 288 refers, the ECJ developed three requirements for liability:

The fulfilment of these requirements is sufficient for a right to compensation, which is directly based in Union Law.

Within the European Union and neighbouring countries, the European Group on Tort Law promotes the harmonisation of tort law within the region. 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 founded the European Centre of Tort and Insurance Law in Vienna. The Group has drafted a collection of Principles of European Tort Law similar to the Principles of European Contract Law drafted by the European Contract Law Commission. The Principles of European Tort Law are a compilation of guidelines by the European Group on Tort Law aiming at the harmonisation of European tort law. They are not intended to serve as a model code, even though their wording may resemble statutory texts. At least with respect to form and structure, they resemble an American Restatement of the Law. The Principles of European Tort Law are intended to serve as a common framework for the further development of national tort laws and also of singular European legislation, which could avoid a further drifting-apart of piecemeal rule-making both on a national and on the European level.
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