Torts, a European ius commune and the private enforcement of Community law

There is a lively debate among scholars in Europe about how, if at all, the private laws (tort, contract, property) of the European nation states should be harmonised. Views range from no harmonisation at all, soft law methods such as models contained in Principles, step by step case law developments, to a fully fledged binding European Civil Code. Another hotly debated issue is the disharmonisation (fragmentation) of domestic systems of private law as a result of current and ongoing EC level harmonisation. The prime consequence of this partial legislative intervention is an enhanced role for the judiciaries of those jurisdictions: they are inevitably entrusted with the fine-tuning of the interaction between domestic and EC private law. Alien concepts make their entry into a Member State’s Civil Code or common law doctrine that do not necessarily easily fit (one scholar has called these “legal irritants”). Most likely, for the foreseeable future, piecemeal harmonisation of specific, and more or less narrow, legal fields is the only show in town

Public and private transnational enforcement of EU consumer law

This paper examines in some detail the two main EC law instruments containing specific provisions on powers to enforce consumer law: a 1998 Directive and a 2004 Regulation. The focus is on intra-Community infringements, the envisaged enforcers and their powers, and extraterritorial consumer protection, including a comparison with the Alpine Investments case. Their combined effect on a number of conceivable transnational enforcement scenarios is analysed. Conclusions are drawn in the light of the 2003 OECD Guidelines on transnational enforcement of consumer law, in order to answer this central question: What progress has been made with the 2004 Regulation and how does it fare when judged by the standards set by the OECD? Despite some shortcomings in the private law sphere (the public law aspects are largely satisfactory), the legislative framework improves on the ECJ’s case law by requiring equal protection of consumers based in the home State and abroad

Civil Liability For Transfrontier Pollution

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Cross-border private enforcement of community law

It is legally more complex to regulate the non-economic aspects of the Single Market, such as a high level of consumer protection, than to ensure market access by operators. The latter can frequently be ensured by the disapplication of national rules obstructing one of the free movements provisions, whereas the former may require the courts to practically redraft a rule of national law. Ensuring compliance with Community standards will depend to a large extent on the willingness of the national courts to creatively construe their domestic law in order to give effect to Community law. Private law sanctions, in particular injunctions, are useful as a policing mechanism in this context. In cross-border situations in particular, civil remedies are potentially effective instruments of enforcement, both for the benefit of private actors and public bodies. The main part of this paper will be a detailed discussion of four illustrative cases, including the Konsumentenombudsman case of July 1997. Before doing so, the legal framework is sketched; afterwards, the most relevant legislative development will be examined

Transnational operator liability

Environmental Liability in the EU focuses on the 2004 EU Environmental Liability Directive - one of the most significant pieces of environmental legislation of the last ten years. The book provides an overview and introduction to the scheme of the Directive and discusses various specific aspects such as its measure of damages, its rules regarding the liability for damage caused by genetically modified organisms and soil pollution, the issue of standing and its relationship with international civil liability conventions that cover environmental harm, in particular the ones dealing with oil pollution. GMO damage is likewise examined against the backdrop of developments at the global level, i.e. the emerging liability regime under the Cartagena Protocol. Environmental Liability in the EU also addresses the issue of who can be held liable for damage covered by the Directive (operator liability), the available defences and its relation to the general principles of EC Environmental Law, notably the polluter-pays principle and the precautionary principle. Given the fact that the Directive is partly based on US and Member State law, a comparison is made with relevant US federal laws, namely the US Oil Pollution Act and CERCLA, as well as with the law of some Member States (Germany and the United Kingdom). A scientific paper considers, by way of case study, complex questions of proof of causation of (environmental) damage caused by arsenic