Band 14, Heft 1 - Special Issue: The Principles of European Tort Law. Where are the Gaps – and How to Fill Them, Part 1 / Guest Editors: Christine Chappuis, Doris Forster and Thomas Kadner Graziano

According to art 10:101 of the Principles of European Tort Law (PETL), tort law pursues two objectives: compensation and the prevention of harm. The following contribution argues that modern tort law pursues a much wider range of objectives. The author identifies a total of eleventh functions which interact and complement each other. He suggests for a future version of the PETL to explicitly mention the whole range of objectives. Naming the full range would facilitate the application of tort law and a teleological interpretation of its provisions, which is, alongside the grammatical interpretation, the most important method for legal interpretation in continental Europe.

The paper examines gaps and potential amendments of art 2:102 of the Principles of European Tort Law (PETL) on the scope of protected interests in tort law, also in light of Prof Bénédict Winiger’s teachings on the history of tort law. To this end, the paper starts by highlighting the many strengths of art 2:102 PETL, focusing in particular on its ability to capture continental European identity and its inherent flexibility, making it resistant to time and compatible with multiple interpretations. It then delves into what may be undertaken to further strengthen art 2:102 PETL. Rather than modifying the provision, the paper suggests that what is most needed is further empirical research about the real world of European tort laws and a more transparent discussion about the functions that tort laws do, and could, perform.

When drafting the Principles of European Tort Law (PETL), the members of the European Group on Tort Law decided to omit wrongfulness as a specific requirement for civil liability, considering it as a concept underlying the notions of interference with legally protected interests and the standard of conduct. This paper tends to demonstrate that this terminological and conceptual choice is still valid eighteen years after the publication of the PETL. On the basis of two case studies examined under German and French law, it is suggested that national traditions are too disparate to adopt a common understanding of what wrongfulness exactly means to a tort lawyer in Europe. The irreconcilability of the different interpretations becomes particularly apparent in mixed tort law systems, such as Japan or Belgium, where the French and the German approach struggle to coexist.