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2013 ELTE L.J. 73 (2013)
Harmonising Tort Law in the European Union: Advantages and Difficulties

handle is hein.journals/eltelj1 and id is 73 raw text is: 


Harmonising Tort Law in the European Union:

Advantages and Difficulties

I Necessity of Harmonising European Tort Law?

The call to harmonise private law and thus, among other areas, also of tort law, can often be
heard and several groups of scholars have already been designing future tort law, whether as part
of a whole codel or as a separate draft2. However, it can be questioned whether harmonisation
is really a necessity or, at least, brings advantages. Doubts in this respect seem reasonable when
looking at the USA: While it is a sovereign state and not only a more or less loose community of
national states as is the EU, 50 different legal systems nevertheless exist within the USA. However,
one has to take into regard that the legal systems of the EU Member States vary a great deal more
than the legal systems of the states in the USA. Not only is there a fundamental difference
between common law in England and Ireland and Continental civil law but there are also
divergences between the civil law systems. The Member States have been independent countries
for centuries and, therefore, their legal cultures - originally partly based on Roman law3 - pursue
different paths. This is obvious, of course, with regard to the 'legal families', for example, the
Germanic and the Romance families. However, there are decisive differences even between the
legal systems of the German speaking countries.
   Bearing this in mind, the rationale for harmonisation is that the differences between the legal
systems hinder commercial cross-border transactions in Europe:4 Entrepreneurs who offer their
wares or services in other Member States are disadvantaged in comparison to competitors who
are only active nationally, because while domestic providers only have to inform themselves of the
legal frameworks in their own legal system, a foreign provider is forced to inform itself about a legal

  Prof. i.R. Dr. DDr. h.c. Helmut Koziol, Director of the European Centre of Tort and Insurance Law.
1 Christian von Bar, Eric Clive, Hans Schulte-Nolke (eds), Principles, Definitions and Model Rules ofEuropean Private
Law. Draft Common Frame of Reference (European law publishers 2009, Munich).
2 European Group on Tort Law (ed), Principles ofEuropean Tort Law. Text and Commentary (Springer 2005, Vienna -
New York).
3 Cf Reinhard Zimmermann, The Law ofObligations. Roman Foundations ofthe Civilian Tradition (2nd edn Oxford Uni-
versity Press 1996, New York); Ibid, 'Savignys Vermachtnis. Rechtsgeschichte, Rechtsvergleichung und die Begrindung
einer Europaischen Rechtswissenschaft' [1998] Juristische Blatter 273-293.
4 Cf Christian von Bar, Untersuchung der Privatrechtsordnungen der EU im Hinblick auf Diskriminierungen und die
Schaffung eines Europaischen Zivilgesetzbuchs' (1999) in European Parlament PE 168.511, available at <http://www.


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