Volume 9, Issue 1

This article will examine what we mean by the term ‘EU tort law’ and why it is important to recognise EU tort law both as a concept providing remedies to citizens in EU and national courts, but also as an area of law which, notably in the context of national courts, is under-theorised and in danger, therefore, of being incorrectly applied. EU tort law is a sub-set of a broader category which may be termed ‘European tort law’. It crosses sectors as diverse as consumer, employment, competition and financial services law. It provides citizens with rights, often to compensatory damages, for breach of interests protected by EU law. Fundamentally, it plays a vital role in ensuring the effectiveness of EU law. It will be submitted that only by focussing on what we actually mean by EU tort law will we gain an understanding of its content and rules and be able to address problems in its application.

This article enquires as to the principles that should govern children’s liability in the tort of negligence in England and Wales and its functional equivalents in other European legal systems. Infants are currently exempted from liability in negligence in virtually every European jurisdiction. In most of them, this result is achieved by making basic moral responsibility a requirement for liability under this tort, while in others it is brought about by tailoring to the defendant’s age the standard against which her conduct is measured. I argue that, whereas neither of these approaches is entirely consistent with the internal logic of the tort of negligence, their common practical outcome is grounded in the combined force of two main policy reasons: children’s general impecuniosity and their inherent inability rationally to manage their own affairs. It is my contention that these reasons can be honoured, while at the same time preserving doctrinal and theoretical integrity, by recognising a (defeasible) infancy defence to liability in negligence.

This article addresses the principles of tort law that govern claims in respect of lost illegal earnings. It focuses on common law jurisdictions (and the law in the United Kingdom in particular) where such claims, despite apparently being commonplace, have been largely ignored by academics. It describes the existing law and calls in aid in this regard a four-fold taxonomy of cases. The article then turns attention to how claims in respect of lost illegal earnings ought to be decided. At this juncture, the article looks to ideas emanating from German tort law, which has developed a highly sophisticated jurisprudence on the subject of illegal earnings. The German approach, stated simply, requires tort law to defer to rules in other departments of private law. If, for example, contract law would not protect an interest that a claimant has in a particular transaction by reason of the transaction being tainted with illegality, tort law will not allow a claimant indirectly to obtain the benefits of that transaction via a claim for lost illegal earnings. It is argued that the German solution holds considerable promise and merits consideration as a serious alternative to the significantly more complicated principles that the common law courts have developed, which principles currently lack any thoroughgoing rationalisation.

In August 2016 the French Parliament adopted legislation introducing civil liability for ecological harm into the civil code. Since tort law is traditionally concerned with the compensation of harm to individuals, the recognition of ecological harm as a basis of liability extends the boundaries of tort by requiring an alternative approach to what constitutes harm, who will have standing to bring claims and what remedies are appropriate. Through a discussion of the French reform, this article analyses the issues raised in adapting civil liability to deal with ecological harm and considers how French law seeks to overcome the challenges that these issues present. The article also reflects on whether the new civil code provisions are likely to provide an attractive model for reform in other legal systems by considering the extent to which they may represent an effective additional source of environmental protection in France and prove financially sustainable.

Following the decision of the First Division of the Court of Cassation issued on May 16, 2016, the United Section of the Italian Court of Cassation delivered a very important ruling on 5 July 2017 deciding – for the very first time – in favour of the enforceability of US punitive damages in Italy.The decision of the Joint Divisions of the Court of Cassation was based on the following arguments: a) more than one provision of the Italian legislative framework already attributes to damage compensation a scope that goes far beyond the mere restoration of the prejudice suffered by the victim; b) recent case law on the matter excludes the incompatibility of the punitive scope of civil liability with the Italian legal system; and c) several doctrinal contributions have promoted the possibility of granting the injured party the right to obtain compensation, beyond the patrimonial loss suffered, assuming that civil liability may also have a deterrent effect.On these premises, the Plenary Session of the Italian Court of Cassation recognised that civil liability may serve different functions: it primarily grants compensation to the injured party, in line with the previous connotation of civil liability as restoration of patrimonial loss, but it may also ensure deterrence and sanction the wrongdoing of the tortfeasor.Given this comprehensive nature of civil liability, the decision stated that foreign decisions granting punitive damages are not against public policy in principle and, thus, can be enforced in Italy, but only under certain preconditions.A foreign ruling providing the payment of punitive damages may be executed in Italy only in the case where foreign legislative provisions, or equivalent sources, grant the competent judge the power to award punitive damages based on typical and predictable circumstances. Moreover, the amount of punitive damages due shall be limited.A decision of the Joint Divisions of the Italian Court of Cassation—which is entitled to provide an uniform interpretation of the law— represents a significant precedent, which lower courts and subsequent judgments are likely to follow, in terms of which courts will be required to recognise and enforce foreign decisions implying a compensation of punitive damages.