Franz Hofmann and Franziska Kurz (eds.) – Law of Remedies – A European Perspective (Intersentia 2019)

Against the background of the increasing importance of the concept of remedies in European private law, Law of Remedies – A European Perspective (Intersentia 2019) focuses on remedies as a distinctive and novel field of European legal research. This edited volume, to which 15 authors have contributed, considers the common law tradition (England and Wales) as well as the civil law viewpoint (on the example of Germany), making the case for a European law of remedies.

It is argued that “remedies” are an enforcement tool influencing the scope of substantive rights. In doing so, this book analyses different mechanisms of enforcement, including the debate on private versus public enforcement as well as the perspective of criminal law. The enforcement of rights is understood as an interdisciplinary task. Remedial law is, however, distinct from procedural law as well as from substantive law in a narrow sense.

This book consists of five parts which contribute to a reflected and comprehensive analysis of European private law. For instance, the CJEU’s recent extension of the concept of “communication to the public”, the “notice-and-take-down-procedure” in intermediary liability cases, or the development of “grace periods” in German patent law reveal the importance of a sophisticated enforcement. Further examples for the relevance of a remedial viewpoint are given by European contract law, i.e. referring to remedies for non-conformity of digital content or consumers’ remedies. In corporate law, shareholders´ rights can be analysed from a “remedy” perspective as well.

Part I addresses the issue of remedies. Subsequent to an introduction to the “law of remedies” by the editors, Paul S. Davies (UCL) considers the English perspective on remedies by addressing the following question: Are remedies in English private law a “stand-alone” research area? Claiming that a “stand-alone” research area should be a coherent area of law, he argues that a law of remedies should not be perceived as an area of law isolated from primary rights. However, a reflective analysis of remedies could reveal underlying principles concerning primary rights as well as remedies. Whereas questions surrounding remedies attract attention in academic writing and legal education in common law countries, the civil law perspective is quite different. For instance, in German law, each of the private law disciplines considers remedies merely as an addendum. Most civil law lawyers conceive of remedies as a mere “legal by-product”. If somebody has infringed a patent, for example, the patent owner automatically could claim an injunction. More precisely, the claimant would have a right against the defendant that he or she refrains from infringing the patent (see § 139 (1) PatG). Traditionally, German lawyers comprehend the legal system as a compilation of “subjective rights”. The claimant does not apply for a (judicial) remedy but rather asks the court to “confirm” the existing subjective claim (§ 194 BGB defines an “Anspruch” as the “right to demand that a person does or refrains from an act”). Notwithstanding, a distinction between primary rights and remedies can be established as well. This is demonstrated by Jan Felix Hoffmann (Albert-Ludwigs-Universität Freiburg, Germany) who analyses remedies in private law from a German perspective, presenting an approach to analyse substantive private law as a system of “property rights” and “remedial rights”. Moreover, a remedies analysis of German law is not restricted to private law remedies. Consequently, Andreas Funke (Friedrich-Alexander-Universität Erlangen-Nürnberg, Germany) analyses the picture of rights and remedies in public law. Finally, Klaus Ulrich Schmolke (Friedrich-Alexander-Universität Erlangen-Nürnberg, Germany) adopts a law and economics viewpoint on the issue of remedies considering the economics of remedies from the perspective of corporate law.

Part II deals with mechanisms of enforcement. In particular, private and public enforcement are converging. For example, Art. 11 Unfair Commercial Practices Directive (2005/29/EC) leaves it to the Member States whether competitors combat unfair commercial practices or consumers can bring unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings. This dualism of enforcement raises the question of what can be regarded as the most efficient means. The debate on private enforcement versus public enforcement is dealt with in detail by Jens-Uwe Franck (Universität Mannheim, Germany). Moreover, criminal law is an enforcement tool as well. Dorothea Magnus (Freie Universität Berlin, Germany) considers the foundations of criminal enforcement in German law, arguing that a criminal sanction should only be imposed as a last resort.

Within the law of remedies, the functions of remedies (Part III) can be analysed. Depending on the facts of each case, the questions are: Which remedy is appropriate? Does the chosen remedy support the desired effect? Are there better remedial alternatives? Benjamin Raue (Universität Trier, Germany) is looking into the remedy disgorgement of profits and its distributive and deterrent logics, claiming that the degree of liability should be taken into account when assessing the extent of the monetary remedy. Luboš Tichý (Univerzita Karlova, Czech Republic) considers the issue of preventive liability and system of sanctions in tort law, arguing in favour of a genuine preventive function of private law remedies.

In Part IV, underlying principles are identified. The value gained by identifying such “helpful guidelines” is illustrated with respect to damages in European Private Law by Christian Heinze (Leibniz Universität Hannover, Germany). He particularly addresses the question whether it is possible to speak of a “European Law of Damages” by analysing different sources and common principles of damages in EU private law. Furthermore, proportionality is presented as a fundamental principle in European remedial law. Especially in IP law, the CJEU rulings and secondary European legislation confirm the importance of proportionate remedies. In a manifesto on proportionality and copyright law, Orit Fischman Afori (College of Management Academic Studies, Israel) argues that a proportionality test is the new “mega-standard” and that interests can be balanced via the means of remedies. Specifically, she suggests that remedies shall build the framework for the constitutional balancing required in copyright law. A further issue concerns remedies against intermediaries. Or as Martin Husovec (Tilburg University, The Netherlands) phrases it: the concept of asking innocent third parties for a remedy. In his chapter, he analyses the origins and trends of this concept. In particular, internet platforms which enable access to copyright protected material can directly infringe copyright as a consequence of the CJEU’s broad understanding of the right to communicate to the public (see GS Media/Sanoma; Stichting Brein/Jack Frederik Wullems [Filmspeler]; Stichting Brein/Ziggo [The Pirate Bay]). None of them, though, commits the act of communication to the public on their own. They are sort of assistants. The CJEU, thus, recognises their specific role and considers them liable only if additional requirements are fulfilled. Thus, intermediary liability can depend on a “notice-and-take-down-procedure”, and enforcement is modified. Looking at these cases through the lens of remedial law supports the view that there is an analytical value to this perspective.

Part V considers themes and controversies surrounding remedies in contract law and intellectual property law. Christian Twigg-Flesner (University of Warwick) takes a close look on themes and controversies surrounding remedies in European contract law. He specifically considers remedies for non-conformity of digital content and consumer remedies against the seller of goods, especially under the new directives ((EU) 2019/770 and (EU) 2019/771). Finally, Jonathan Moss (Hogarth Chambers) analyses the intersection between economic justifications for IP rights and cost of enforcement in the English courts.

Overall, Law of Remedies – A European Perspective (Intersentia 2019) argues that “remedies” are more than just an addendum. Remedies are presented as an important research area – not only in the common law but also in civil law jurisdictions and European private law.

Posted by Professor Franz Hofmann and Franziska Kurz (Chair of Private Law, Intellectual Property and Technology Law – Friedrich-Alexander-Universität Erlangen-Nürnberg)