6

IUS COMMUNE

A INTRODUCTION

601 OVERVIEW

Th e foregoing chapters have shown many similarities and differences between the various tort law systems. In fact, the European picture is even more complicated since only three national tort law systems have been covered. It is now time to draw together the lines of the previous chapters.

Twenty years ago, this chapter would have been called Comparative Observations. Nowadays, it needs to be called Ius Commune in order to reflect the search for a common European private law, including a common European tort law (Section 101-2). Indeed, at certain levels and in certain areas there is sufficient common ground between the legal systems to discuss further harmonization. However, in other areas and on a policy level, important differences remain among the various national approaches, and this will make it more difficult to find common ground.

In this chapter, first the quest for a European ius commune in tort law will be pursued. The idea of a European ius commune based on the fundamentals of Roman law dates back to medieval times but did not survive the rise of the national States (Section 602). When the drawbacks of excessive nationalism became apparent after the two World Wars, increasing European cooperation endorsed the idea of a revival of a European ius commune (Section 603).

A number of differences between the legal systems deserve attention in order to put the quest for harmonization into perspective. First, the tort law systems will be compared on the level of rules: fault and strict liability rules (Sections 605–607) as well as the differences between codification and common law, and the pivotal role of the courts in developing tort law (Section 604). Second, a comparison will be carried out on the level of the differences behind the rules, that is, legal–cultural differences, differences in policy approach, and differences in the role of rights (Sections 608–610).

In the bedrooms of some European academics, dreams are dreamt not only of a European ius commune but also of a European Civil Code. However, the question is whether such an ambitious project would be feasible and desirable. For this reason, the positions of the European Commission and European Parliament will be examined

(Section 611). Subsequently, the case for harmonization and codification will be discussed (Section 612) and, finally, an agenda for further research and discussion will be proposed (Section 613).

B THE QUEST FOR A EUROPEAN IUS

COMMUNE

602 FROM OLD TO NEW IUS COMMUNE

Wisdom teaches us that there is nothing new under the sun.1 Th is wisdom also applies to the idea of a European ius commune which received firm backing in the framework of European integration in the second half of the twentieth century.

Th e concept goes back to the ius commune that formed the basis of a common system of legal thought throughout Western Europe from the twelfth century onwards. It was greatly inspired by the discovery and reception of Roman law, particularly of Justinian’s Digest.

Roman legal learning soon formed a major component of what has come to be known as the Roman-Canon ius commune. Law, in the Middle Ages, was not conceived of as a system of rules enacted for, and exclusively applicable within, a specific territory, and thus the ius commune provided the cornerstone for the emergence of an essentially unified, European legal tradition.2

Th e traditional ius commune disintegrated in the eighteenth century with the rise of rationalism and nationalism: the new rulers wanted the identity of the nation to be supported by a national codification, starting with Prussia in 1794, France in 1804 (Section 301-2), and Austria in 1811. This was the beginning of a process of nationalization of the rules of private law.3

After the First and Second World Wars, the drawbacks of extreme nationalism became obvious, and the need for cooperation instead of sole pursuit of national interests was strongly emphasized. A major European cooperation process was launched with the founding of the Council of Europe (Section 202-1) and the establishment of what later became the European Union (Section 203). Combined with the globalization of trade, this political development has boosted the internationalization of private law.

1 Ecclesiastes, Ch. 1:9: ‘What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.’ English Standard Version Bible (Oxford: Oxford University Press, 2001).

2 Reinhard Zimmermann, ‘Characteristic Aspects of German Legal Culture’, in Mathias Reimann and Joachim Zekoll (eds.), Introduction to German Law, 2nd edn. (The Hague/Munich/Frederick: Kluwer Law International, 2005), 2–3. See also Reinhard Zimmermann, ‘Savigny’s Legacy: Legal History, Comparative Law, and the Emergence of a European Legal Science’, LQR 112 (1996), 557 ff.

3 See also Reinhard Zimmermann, ‘Roman Law and the Harmonisation of Private Law in Europe’, in Towards a European Civil Code (2011), 27–53; Zweigert and Kötz (1998), 138 ff and 163 ff.

Talks in the private law village also took on a European and an intercontinental dimension.

It was against this political background that the search for a new European ius commune began.4 For some, this search ought to culminate in a new symbol of unity and identity: a European Civil Code. It is thought that such a Code could build bridges between Member States and support a common European identity. The question, however, is whether such a Code is feasible and desirable (Section 612).

603 SEARCH FOR HAR MONIZATION

603-1 AN EVER GROWING NUMBER OF PUBLICATIONS

Since the late 1980s, the discourse on a common European private law—which includes the discussion on a common European tort law—has grown extensively. This is not the forum to set out this development in detail but two headlines will be mentioned: publications and harmonization initiatives.

Although they do not deal specifically with European private law or European tort law, the Torts section in The International Encyclopaedia of Comparative Law and Konrad Zweigert and Hein Kötz’s Introduction to Comparative Law—the first German edition of which was published in 1969–1971—are nevertheless of major importance.5 Of similar importance from a historic perspective is Reinhard Zimmermann’s The Law of Obligations. Roman Foundations of the Civilian Tradition, published in 1990.6 Another outstanding comparative work in this area is Basil Markesinis’ The German Law of Torts, the first edition of which was published in 1986.7

One of the first overarching books of modern time in the area of European private law, though primarily from a historic point of view, is Helmut Coing’s Europäisches Privatrecht.8 A more future-oriented approach can be found in Towards a European Civil Code, the first edition of which was published in 1994.9

4 See for an early example Walter Hallstein, ‘Angleichung des Privatund Prozessrechts in der Europäischen Wirtschaftsgemeinschaft’, RabelsZ 28 (1964), 211–231.

5 Zweigert and Kötz (1998).

6 Reinhard Zimmermann, The Law of Obligations. Roman Foundations of the Civilian Tradition (Cape Town: Juta, 1990). See also David Ibbetson and John Bell (eds.), Comparative Studies in the Development of the Law of Torts in Europe, 6 vols. (Legal Doctrine, Medical Liability, Product Liability, Relations Between Neighbours, Technological Change, Traffic and Railways) (Cambridge: Cambridge University Press, 2010).

7 Basil S. Markesinis and Hannes Unberath, The German Law of Torts: A Comparative Treatise, 4th edn. (Oxford: Hart, 2002). See also Helmut Koziol, Basic Questions of Tort Law from a Germanic Perspective (Vienna: Jan Sramek Verlag, 2012); Gert Brüggemeier, Common Principles of Tort Law: A Pre-Statement of Law (London: British Institute of International and Comparative Law, 2004).

8 Helmut Coing, Europäisches Privatrecht, 1st Vol. (Munich: Beck, 1985) and Helmut Coing, Europäisches Privatrecht, 2nd Vol. (Munich: Beck, 1989).

9 Arthur Hartkamp et al. (eds.), Towards a European Civil Code, 4th edn. (The Hague: Kluwer Law International, 2011); see further P.-C. Müller-Graf (ed.), Gemeinsames Privatrecht in der Europäischen

Since the mid-1990s it has been hard to keep track of the ever-growing number of publications in this area. In 1996 and 1999 Christian von Bar published his two encyclopaedic volumes on Gemeineuropäisches Deliktsrecht. The English translations of these volumes were published in 1998 and 2000 as The Common European Law of Torts. In 2000, Walter van Gerven published his Cases, Materials and Text on National, Supranational and International Tort Law. As from the late 1990s, the European Group on Tort Law, headed by Jaap Spier and Helmut Koziol began to publish a series of books under the (ambitious) title Unification of Tort Law.10 And as from the turn of the century, the project on the Common Core of European Private Law of the University of Trento (see Section 603-2) also published a range of books on comparative tort law topics.11

A number of journals are devoted to the topic of European private law, such as the

European Review of Private Law and the Zeitschrift für europäisches Privatrecht (also with articles in English) but articles on this topic are, of course, also published in other law journals and reviews. In 2011, the first issue of the Journal of European Tort Law was published, the first review dedicated to this specific area of European private law. Another source of information on European tort law, including many translated French and German statutes and cases, is the website of the Institute of Transnational Law of the University of Texas at Austin.12

Last but not least, the European Tort Law Yearbooks, edited by Helmut Koziol and Barbara Steininger, provide concise overviews of recent tort law developments in most European countries.13

Gemeinschaft (1993); Jan Smits, The Making of European Private Law (Antwerp: Intersentia, 2002); Wolfgang Wurmnest, Grundzüge eines europäischen Haftungsrechts (Tübingen: Mohr, 2003); Christian Twigg-Flesner (ed.), The Cambridge Companion to European Private Law (Cambridge: Cambridge University Press, 2010); Jürgen Basedow, Klaus J. Hopt, Reinhard Zimmermann, and Andreas Stier (eds.), Max Planck Encyclopedia of European Private Law (Oxford: Oxford University Press, 2012), all with further references.

10 In the series Unification of Tort Law (The Hague/London/New York: Kluwer Law International): H. Koziol (ed.), Wrongfulness (1998); J. Spier (ed.), Causation (2000); U. Magnus (ed.), Damages (2001); B.A. Koch and H. Koziol (eds.), Strict Liability (2002); J. Spier (ed.), Liability for Damage Caused by Others

(2003); U. Magnus and M. Martin-Casals (eds.), Contributory Negligence (2004); W.V. Horton Rogers (ed.), Multiple Tortfeasors (2004); P. Widmer (ed.), Fault (2005).

11Mauro Bussani and Vernon V. Palmer (eds.), Pure Economic Loss in Europe (Cambridge: Cambridge University Press, 2003); Franz Werro and Vernon V. Palmer (eds.), The Boundaries of Strict Liability in European Tort Law (Durham, NC: Stämpfli-Carolina Academic Press, 2004); Thomas M.J. Möllers and Andreas Heinemann (eds.), The Enforcement of Competition Law in Europe (Cambridge: Cambridge University Press, 2008); Monika Hinteregger (ed.), Environmental Liability and Ecological Damage in European Law (Cambridge: Cambridge University Press, 2008); Gert Brüggemeier, Aurelia Colombi Ciacchi, and Patrick O’Callaghan (eds.), Personality Rights in European Tort Law (Cambridge: Cambridge University Press, 2010).

12<www.utexas.edu/law/academics/centers/transnational/work_new>.

13Helmut Koziol and Barbara C. Steininger (eds.), European Tort Law 2002–2011 (Vienna/New York: Springer, 2003–2012). See also the practical and concise overview of legislative and judicial materials in Ken Oliphant and Barbara C. Steininger (eds.), European Tort Law. Basic Texts (Vienna: Jan Sramek, 2011).

603-2 HARMONIZATION INITIATIVES

In addition to these publications, a number of initiatives have been undertaken in order to study the possibilities of harmonizing European private law and to produce recommendations.14 One of the best known and most fundamental initiatives is the Lando Commission on European Contract Law, named after its Danish founder and chairman Ole Lando. This Commission has completed and published its Principles of European Contract Law.15

Th e Study Group on a European Civil Code was founded in 1998 by Christian von Bar. It considers itself the successor to the Lando Commission and aims to deal with other areas of private law. In 2005, the Group published a draft on Non-Contractual Liability Arising out of Damage Caused to Another.16 To a considerable extent this draft was included in the Draft Common Frame of Reference (DCFR) as Book VI on ‘Noncontractual liability arising out of damage caused to another’ (see Section 611). At various places throughout this book, reference will be made to Book VI of the DCFR.

Th e University of Trento has set up a project on the Common Core of European Private Law. Also known as the Trento Group, it seeks to unearth the common core of European private law, that is, of what is already common, if anything, among the different European legal systems. It aims to discover deeper analogies hidden by formal differences. The Group does not aim to attain uniformity but it considers its work as part of building a common European legal culture.17

Finally, the European Group on Tort Law (formerly known as the Tilburg Group) was founded in 1993 by Jaap Spier and Helmut Koziol. In 2005 the Group, currently based in Vienna, published its draft Principles of European Tort Law (PETL) accompanied by an extensive commentary.18 Th e Group aims to contribute to the enhancement and harmonization of tort law in Europe through the framework provided by its Principles of European Tort Law (PETL), and in particular to provide a principled basis for rationalization and innovation at national and EU level.

14Th ere may be about a dozen initiatives in this area: Wolfgang Wurmnest, ‘Common Core, Grundregeln, Kodifikationsentwürfe, Acquis-Grundsätze—Ansätze internationaler Wissenschaftlergruppen zur Privatrechtsvereinheitlichung in Europa’, ZEuP 2003, 714–744.

15Ole Lando and Hugh Beale (eds.), Principles of European Contract Law—Parts I and II (The Hague/ London: Kluwer Law International, 2000); Ole Lando (ed.), Principles of European Contract Law—Part III (The Hague/London: Kluwer Law International, 2003).

16<www.sgecc.net>. See Christian von Bar, ‘Konturen des Deliktsrechtkonzeptes der Study Group on a European Civil Code’, ZEuP 2001, 515 ff; John W.G. Blackie, ‘Tort/Delict in the Work of the European Civil Code Project of the Study Group on a European Civil Code’, in Reinhard Zimmermann (ed.), Grundstrukturen des europäischen Deliktsrecht (Baden-Baden: Nomos, 2002), 133–146.

17Mauro Bussani and Ugo Mattei (eds.), The Common Core of European Private Law (The Hague/London/ New York: Kluwer Law International, 2003).

18<www.egtl.org>. European Group on Tort Law: Principles of European Tort Law (Vienna/New York: Springer, 2005). See Helmut Koziol, ‘Die “Principles of European Tort Law” der “European Group on Tort Law” ’, ZEuP 2004, 234–259. See also Roger Van den Bergh and Louis Visscher, ‘The Principles of European Tort Law: The Right Path to Harmonization?’, ERPL 14 (2006), 511–542. See for a comparison between the Principles and the provisions in the DCFR Ken Oliphant, ‘Rival Perspectives on European Tort Law (A Comparative Analysis)’, ETL 2009, 666–694.

Th ese headlines show that the area of European private law generally, and European tort law in particular, is buzzing with activity. Academic bees are tirelessly collecting the pollen of the national flowers and bringing it to the European hive where the queen bee of European harmony is looking on with approval.

Th e various study groups and their respective proposals are private initiatives and do not have an official status. Naturally, the groups primarily consist of academics sympathetic towards the idea of harmonization or who believe that harmonization is in some way desirable. Indeed, the groups have representatives from England and France although these countries are generally not well known for their enthusiasm for additional European harmonization in the area of private law. Also, the final proposals are, of course, a matter of give-and-take but it is questionable whether the members of these study groups can be considered to have the authority to give and take on behalf of their national legal systems. This is particularly the case for policy-related matters of which tort law contains several. Hence, the principles are intermediate points for discussion— and excellent ones—rather than the final result of the discussion. See also Sections 612–613.

603-3 BACKGROUND TO THE DISCUSSION

Harmonization and the search for a new ius commune are at the very heart of the current European private law discourse.19 However, the preliminary question of whether harmonization is desirable is less often discussed. Sometimes it seems that the discussion of a European ius commune has divided the academic private law world into believers and non-believers. The former believe in a new and unified European private law, whereas the latter refuse to believe that differences and division will or should be overcome. For many authors, the quest for a new ius commune seems to be self-evi- dent. It is understandable, particularly after the end of the Cold War, that the emphasis has been on commonalities and similarities. It was in 1989 that Francis Fukuyama wrote his article on ‘the end of history’: ‘We may be witnessing the end of history as such: that is, the end point of mankind’s ideological evolution and the universilation of Western liberal democracy as the final form of human government.’ He further argued that the future would be devoted to resolving mundane economic and technical problems.20 It was against this background that optimism about a united Europe dominated the agenda: nothing seemed to be more appropriate than to set out to find the Holy Grail of Europe’s ius commune.

Th is optimism is reflected in the fairly widespread belief that Europe’s national legal systems are converging. This is, for instance, strongly advocated by Markesinis who argues that there is

19See eg the overview by Reinhard Zimmermann, ‘Comparative Law and the Europeanization of Private Law’, in Mathias Reimann and Reinhard Zimmermann (eds.), Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006), 539–578.

20Francis Fukuyama, ‘The End of History’, The National Interest, 16 (1989), 4, 18.

a convergence of solutions in the area of private law as the problems faced by courts and legislators acquire a common and international flavour; there is a convergence in the sources of our law since nowadays case law de facto if not de jure forms a major source of law in both common and civil law countries; there is a slow convergence in procedural matters as the oral and written types of trials borrow from each other and are slowly moving to occupy a middle position; there may be a greater convergence in drafting techniques than has commonly been appreciated . . . ; there is a growing rapprochement in judicial views.21

Clearly, not everyone agrees with these views. One of the few authors who explicitly dared to advocate against harmonization is Legrand, who considers particularly the differences between common law and civil law to be unbridgeable:

if one insists on the cognitive structure of the common law world as it differs from that of the civil law world . . . one must see that, in addition to being rudimentary, the analysis of European legal integration at the level of posited law suggesting a convergence of legal systems is misleading. Indeed, if one forgoes a surface examination at the level of rules and concepts to conduct a deep examination in terms of legal mentalités, one must come to the conclusion that legal systems, despite their adjacence within the European Community, have not been converging, are not converging and will not be converging . . . law as rules must have a sense of its limits: cultural integration or convergence is a promise that law is simply ontologically incapable of fulfilling.22

Th e discussion on this topic is diverse, and opinions are expressed in all shades between the two singled out here. The discussion on convergence and divergence seems to be an empirical question (Sein), the answer to which requires extensive research into case law and legislation in Europe over a number of years. However, the discussion also has a strong policy angle (Sollen). In other words, the debate not only concerns what is desirable for Europe (an private law): harmony or diversity? Rather, the arguments put forward in this discussion are expressions of legal–political visions about the direction Europe and national laws should take.23

In this respect, there is also a difference in the way harmonization is supported in the three legal systems. Whereas France and England are generally reluctant, Germany seems to be the most supportive country in the quest for harmonization. The reasons for this are threefold.

First, from a systematic point of view, many German authors love to draft legal texts and to systematize the law and this interest fuels the motor of harmonization.24 Th e

21B.S. Markesinis, ‘Learning from Europe and Learning in Europe’, in B.S. Markesinis (ed.), The Gradual Convergence (Oxford: Clarendon Press, 1994), 30. See also James Gordley, ‘Common law und civil law: eine überholte Unterscheidung’, ZEuP 1993, 498–518; Jan Smits, The Making of European Private Law (Antwerp: Intersentia, 2002), 73–105.

22Pierre Legrand, ‘European Legal Systems are not Converging’, ICLQ 45 (1996), 63–64.

23See eg Pierre Legrand, ‘European Legal Systems are not Converging’, ICLQ 45 (1996), 64: ‘I wish to argue that such convergence, even if it were thought desirable (which, in my view, it is not), is impossible on account of the fact that the differences arising . . . are irreducible’ (emphasis in original).

24Th e Germans found supporters in Dutch academics who became familiar with drafting techniques and discussions surrounding them in the 45 years they worked on their Civil Code of 1992.