This article is based on a key note paper I gave at the SLS Comparative Law subject section in Dublin in 2017 and I am very grateful to the organisers and the audience for the opportunity to discuss a relatively under-researched topic: the extent to which tort law whose origin is European Union law is developing into a source of law which will impact on the national tort law of Member States. European Union tort law takes two main forms: (i) claims relating to the liability of EU institutions brought under art 340(2) TFEU where the case is brought before the CJEU to establish the non-contractual liability of the Union and obtain compensation for damage caused by unlawful acts and conduct committed by Union institutions and bodies, and (ii) cases brought against the Member State and private parties in the national courts for breach of EU law. ‘EU tort law’ may therefore be defined as tort law (and term ‘tort law’ is used for convenience, but as synonymous with civil law notions of ‘non-contractual liability’) whose source is that of EU, not national, law.
There is considerable literature on the liability of EU institutions under art 340(2) TFEU. The article therefore focusses primarily on the less developed second category of claims which raise significant questions concerning the correct application of the law by national courts. Here while the source of liability is that of primary (Treaties) or secondary (Directives, Regulations) EU legislation or CJEU case law, the law is applied, not by the courts of the EU, but by the national courts of Member States in line with the interpretative guidance of the CJEU. As the article shows, this second category is characterised by the fact that most claims will arise in sector-specific contexts in which the tortious remedy is part of a framework of rights given to EU citizens in fields such as consumer law, employment, competition, and financial services law. As yet, there have been only limited attempts to identify a common binding factor: that these are all claims based on EU tort law.
The aim of the article, therefore, is to rectify this omission and highlight the nature of EU tort
law as applied by the national courts of the European Union. It draws together the disparate sources of EU tort law, identifies problems which exist in its application by the domestic courts and examines to what extent tensions still exist between the EU and the Member States courts in this field. Fundamentally, EU tort law gives EU citizens the right to tortious remedies in the national courts. This presents a challenge to the autonomy of domestic tort law doctrine, but also to the courts to set aside their national modes of interpretation (‘national preferences’) and acknowledge a particular vision of tortious or non-contractual liability reflecting the values of EU law, notably that of enhancing the effectiveness of EU law itself. As this article shows, this exercise has not proven easy. The article argues, therefore, that the problems identified can only be resolved if the courts (and lawyers generally) gain a clearer understanding of the particular nature of EU tort law actions and the policies underlying this distinct form of liability.
At a time of Brexit, it is important for comparative lawyers to continue to examine the comparative melting-pot that is the EU and, indeed, highlight to UK lawyers generally that leaving the EU may lead to a diminution in protection for consumers and other vulnerable parties currently protected by EU tort law. While comparative lawyers may not automatically think of EU tort law as “comparative law”, it does raise many of the themes we traditionally address – tension between common and civil law legal systems, the viability of legal transplants, the need for inter-jurisdictional dialogue and understanding and so on. EU tort law will not end after Brexit but continue to thrive and it is to be hoped that the comparative law community within the UK will continue to address the interesting questions to which it gives rise.
The article may be found at: https://www.degruyter.com/view/j/jetl.2018.9.issue-1/jetl-2018-0104/jetl-2018-0104.xml. For further inquiries, please contact Paula Giliker (paula.giliker [at] bristol.ac.uk). The topic of EU tort law is explored further in P. Giliker (ed), Research Handbook on EU Tort Law (Edward Elgar, 2017).
Posted by Professor Paula Giliker, Professor of Comparative Law, University of Bristol and former President of the British Association of Comparative Law (paula.giliker [at] bristol.ac.uk).
(Suggested citation, P. Giliker, “New Publication: Paula Giliker ‘What do we mean by EU Tort Law?’ Journal of European Tort Law 2018; 9(1): 1–24” available at https://british-association-comparative-law.org/2018/05/08/new-publication-paula-giliker-what-do-we-mean-by-eu-tort-law-journal-of-european-tort-law-2018-91-1-24)