National Court Practice and European Tort Law (Digesten III)

This project aims to collect, analyse and compare the most significant case law from selected European jurisdictions on the issues of wrongfulness and fault (`misconduct`). Through a comprehensive comparative study, it will not only provide guidance for the resolution of current cross-border cases, but will also promote critical engagement on the basis of real-life case settings with existing projects aiming at the harmonisation of European tort laws. The various national legal systems offer a broad range of responses to the question of what can be regarded as wrongful behaviour or fault, though the outcomes in practice are often more similar than the conceptual differences might lead one to believe. It was for that reason the `European Group on Tort Law` formulated its `Principles of European Tort Law`, which are a systematic set of basic rules intended to serve as a model for the future harmonisation of diverse European tort law systems. The `Principles` are founded upon a thorough examination of existing legal systems, in an effort to achieve the broadest possible acceptance for them. They were presented at a public conference in Vienna in May 2005. The Group has now embarked upon a new work programme with a view to expanding the scope of the `Principles` and updating and refining their content in the light of subsequent scholarly debates and developments in national and EU law. With a new common European law of torts, however, the experience derived from extensive court practice on the basis of prior law will no longer be of the same use as before. The proposed project aims to overcome such disadvantages. Court decisions from almost thirty European jurisdictions will be systematically selected to cover a broad range of central aspects of tort law. The cases will be analysed and commented upon from both a national as well as a comparative perspective. Additionally, the impact of the decisions on the future European law of torts will be highlighted. Finally, a selection of typical cases will be analysed and resolved on the basis of the recently drafted harmonised principles in order to provide both academics and practitioners with an analytically structured body of case law derived from domestic and international court practice. The project will therefore build a bridge from existing national case law to the new body of uniform tort law, which will promote the continuity of legal development in Europe. The proposed project will continue in the line of the FWF`s funded projects (Causation and Damage) but will deal with another key element of tort law: `misconduct`. Building on the findings and conclusions of its precursors, this third project constitutes a further advance in the exploration of the core areas of European Tort Law.

In 2003, the Institute for European Tort Law of the Austrian Academy of Sciences, funded by the Austrian Science Fund (FWF Der Wissenschaftsfonds), and the University of Geneva, under the auspices of the Swiss National Science Foundation (SNSF), partnered on an ambitious research project: a collection of court decisions from almost every European jurisdiction on the most fundamental aspects of tort law. These cases are not only systematically selected, but are also structured and analysed and the topics are commented upon from a historical, national, EU as well as a comparative perspective. To add depth to the research, academic principles aiming at harmonisation including the Principles of European Tort Law (PETL) of the European Group on Tort Law (EGTL) and the Draft Common Frame of Reference (DCFR) are also synthesised. This complex study referred to as National Court Practice and European Tort Law or the Digest of European Tort Law project does not only provide guidance for the resolution of current cross-border cases but also it primarily aims at providing an extensive jurisprudential corpus on the European law of damages, thus bridging the gap between the application of national law and the increasingly harmonised notion of compensation in Europe. It promotes critical engagement, on the basis of real-life case settings, with existing projects aiming at the harmonisation of European tort laws. A reference to the Digest project in the Australian High Court (ie the Supreme Court) case of Tabet v Gett ([2010] HCA 12 (21 April 2010)) testifies to the significance of the project well beyond Europe. Crucially, and uniquely, if at some time in the future a European Civil Code is introduced, lawyers and judges would have immediate access to case law collected under the project to give specific content to its provisions. Studies on two central aspects of tort law, natural causation4 and damage,5 have already been published (in 2007 and 2011 respectively).This aim of the current National Court Practice and European Tort Law (Digest III: Misconduct) was similarly to collect, analyse and compare the most significant case law from selected European jurisdictions, this time, however, on the issues of the failure to meet a given standard of required conduct as a basis of tortious liability (Rechtswidrigkeit, Verschulden, faute, culpa). In additional to special reports, in total 55 contributors were involved from 29 legal systems including the jurisprudence of EU courts. The project began on 30 September 2013 and will culminate in the publication of a book under the editorship of Prof Ernst Karner, Prof Ken Oliphant and Prof Bénédict Winiger. The manuscript is currently with the publishers, De Gruyter, and is scheduled to be released in autumn 2017.6 The study will not only be published in book form, but the results of the Digest III project will also be made accessible (in English) to a broad platform of users via a comprehensive internet- based database (Eurotort, www.eurotort.org).