Tort and Insurance Law Yearbook. European Tort Law European Centre of Tort and Insurance Law
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2 Tort and Insurance Law Yearbook European Tort Law 2005 Edited by the European Centre of Tort and Insurance Law together with the Research Unit for European Tort Law of the Austrian Academy of Sciences
3 Helmut Koziol Barbara C. Steininger (eds.) European Tort Law 2005 With Contributions by Håkan Andersson Irene Kull Bjarte Askeland Rok Lampe Ewa Bagińska Milda Lauc` ienė Elena Bargelli Peter Loser Søren Bergenser Attila Menyhárd Agris Bitāns Olivier Moréteau Willem H. van Boom Ken Oliphant Matthias Cornils André G. Dias Pereira Eugenia Dacoronia Andrea Pinna Anton Dulak Eoin Quill Isabelle C. Durant Robert Rebhahn Michael Faure Jordi Ribot Jörg Fedtke Albert Ruda Herkus Gabartas Alessandro P. Scarso Michael D. Green Barbara C. Steininger Suvianna Hakalehto-Wainio Christian Takoff Ton Hartlief Vibe Ulfbeck Jir` í Hrádek Gerhard Wagner Bernhard A. Koch SpringerWienNewYork
4 European Centre of Tort and Insurance Law Landesgerichtsstraße Vienna, Austria Tel.: Fax: ectil@ectil.org Austrian Academy of Sciences Research Unit for European Tort Law Landesgerichtsstraße Vienna, Austria Tel.: Fax: etl@oeaw.ac.at This work is published with the financial support of the Austrian Ministry of Education, Science and Culture, Munich Re and Freshfields Bruckhaus Deringer. Gedruckt mit Unterstützung des Bundesministeriums für Bildung, Wissenschaft und Kultur in Wien. This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically those of translation, reprinting, re-use of illustrations, broadcasting, reproduction by photocopying machines or similar means, and storage in data banks Springer-Verlag/Wien Printed in Austria Springer-Verlag Wien New York is part of Springer Science + Business Media springeronline.com Product Liability: The publisher can give no guarantee for the information contained in this book. This also refers to that on drug dosage and application thereof. In each individual case the respective user must check the accuracy of the information given by consulting other pharmaceutical literature. Typesetting: Composition & Design Services, Minsk, Belarus Printing and binding: Ferdinand Berger & Söhne Gesellschaft m.b.h., 3580 Horn, Austria Printed on acid-free and chlorine-free bleached paper SPIN: CIP data applied for ISBN-10 ISBN-13 ISSN SpringerWienNewYork SpringerWienNewYork
5 Preface A harmonisation of European law presupposes sound mutual knowledge of the jurisdictions involved in the harmonisation process. However, partly due to language problems it is not always easy to obtain information about all these jurisdictions, especially as far as new developments are concerned. Against this background, the European Centre of Tort and Insurance Law and the Research Unit for European Tort Law decided to publish a Yearbook on European Tort Law containing reports on the most interesting new developments in the field of tort law in different European countries. The fifth Yearbook on European Tort law includes reports on most EU Member States, including the new Member States the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. Contributions from Switzerland and Norway, an overview of the developments in the field of EC law as well as a report on Bulgarian tort law are also included. Furthermore, the Yearbook includes a comparative overview and several essays on key issues of tort law, five of which focus on questions of public liability. These essays, as well as the most important results of the country reports and the comparative overview, were presented and discussed at the 5th Annual Conference on European Tort Law in Vienna from 20 to 22 April The opening lecture of the Conference on The Impact of the Jury on American Tort Law as well as a contribution on the topic of Harmonizing European Tort Law are also published in the present Yearbook. The 6th Annual Conference on European Tort Law will again take place in Vienna from 12 to 14 April In publishing the Yearbook we pursue the idea of providing a comprehensive overview of the latest developments in the law of torts of many European countries thereby enabling scholars as well as practitioners from different national backgrounds to keep abreast of questions concerning tort law. Furthermore, we hope that the Yearbook will enhance and promote a greater understanding of the respective national legal and judicial systems which is essential for a successful harmonisation of European tort law. At this point, we would like to express our gratitude for the support of this project by the Austrian Ministry of Education, Science and Culture; the Austrian Ministry of Justice; Freshfields Bruckhaus Deringer; the Kulturabteilung der Stadt Wien, Wissenschafts- und Forschungsförderung and Munich Re. Without their support this project could never have been realised. Moreover, we would like to thank the staff of the Research Unit for European Tort Law
6 VI Preface and the European Centre of Tort and Insurance Law. Special thanks go to Mag. Lisa Zeiler for making the Conference such a success and Donna Stockenhuber M.A. for once again taking on the delicate and time-consuming task of proof-reading the entire manuscript. Moreover, we would like to thank Simone Sartor for preparing the Index, Mag. Kathrin Karner-Strobach for unifying the style of the footnotes and Dr. Nora Wallner for her help with the final manuscript. Helmut Koziol and Barbara C. Steininger Vienna, September 2006
7 Table of Contents Essays... 1 I. Liability for Failure to Regulate Health and Safety Risks (Willem H. van Boom and Andrea Pinna)... 2 II. Foreseeing Liability for Breach of EC Law. Reflections on the ECJ s Differing Notions of Illegality (Matthias Cornils) III. State Liability in Times of Budgetary Crisis (Jörg Fedtke) IV. The Impact of the Jury on American Tort Law (Michael D. Green) V. Public Liability in Comparison England, France, Germany (Robert Rebhahn) A. Introduction B. Overview of the National Systems C. The Liability for Unlawful Behaviour in Detail D. Conclusion VI. Tortious Liability of Regulatory Authorities (Alessandro P. Scarso) A. Introduction B. Liability of Regulatory Authorities Under Italian Law C. Comparative Material D. Liability of Regulatory Authorities Under European Law E. Conclusion
8 VIII Table of Contents Reports I. Austria (Barbara C. Steininger) A. Legislation B. Cases C. Literature Appendix: Working Group Draft II. Belgium (Isabelle C. Durant) A. Legislation B. Cases C. Literature III. Czech Republic (Jiří Hrádek) A. Legislation B. Cases C. Literature IV. Denmark (Vibe Ulfbeck and Søren Bergenser) A. Legislation B. Cases C. Literature V. England and Wales (Ken Oliphant) A. Legislation B. Cases C. Literature VI. Estonia (Irene Kull) A. Legislation B. Cases C. Literature VII. Finland (Suvianna Hakalehto-Wainio) A. Legislation B. Cases C. Literature
9 Table of Contents IX VIII. France (Olivier Moréteau) A. Legislation B. Cases IX. Germany (Jörg Fedtke) A. Legislation B. Cases C. Literature X. Greece (Eugenia Dacoronia) A. Legislation B. Cases C. Literature XI. Hungary (Attila Menyhárd) A. Legislation B. Cases C. Literature XII. Ireland (Eoin Quill) A. Legislation and Official Reports B. Cases C. Literature XIII. Italy (Elena Bargelli) A. Legislation B. Cases C. Literature XIV. Latvia (Agris Bit2ns) A. Legislation B. Cases C. Literature
10 X Table of Contents XV. Lithuania (Herkus Gabartas and Milda Laučienė) A. Legislation B. Cases C. Literature XVI. The Netherlands (Michael Faure and Ton Hartlief) A. Introduction B. Legislation and Evolutions at Policy Level C. Case Law D. Doctrine E. Concluding Remarks XVII. Norway (Bjarte Askeland) A. Legislation B. Cases C. Literature XVIII. Poland (Ewa Bagińska) A. Legislation B. Cases C. Literature XIX. Portugal (André G. Dias Pereira) A. Legislation B. Cases C. Literature XX. Slovakia (Anton Dulak) A. Legislation B. Case Law C. Literature XXI. Slovenia (Rok Lampe) A. Legislation B. Cases C. Literature
11 Table of Contents XI XXII. Spain (Jordi Ribot and Albert Ruda) A. Legislation B. Cases C. Literature XXIII. Sweden (Håkan Andersson) A. Introduction B. Legislation C. Cases D. Literature XXIV. Switzerland (Peter Loser) A. Legislation B. Cases C. Literature XXV. European Union (Bernhard A. Koch) A. Legislation and Legislative Projects B. Selected Cases XXVI. Comparative Overview (Bernhard A. Koch) Other Contributions I. Bulgaria (Christian Takoff) A. General Review of the Doctrine B. Legislation C. Case Law Developments D. Bibliography II. The Project of Harmonizing European Tort Law (Gerhard Wagner) A. Introduction: The Janus-Faced Project of Harmonization B. The Need for Harmonization C. The Feasibility of Harmonization D. The Method and Depth of Harmonization E. Soft Harmonization: Veritas, Non Auctoritas F. Hard Harmonization: A European Civil Code
12 XII Table of Contents G. The Political Question: Principles as a Blueprint for Full Harmonization? H. Conclusion Contributors Index Publications
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