What is European tort law?

Tort law deals with the question of whether someone can be held liable for damage he or she has caused. The terminology ‘European tort law’ is not self-evident, as tort law is a common law concept that does not have a parallel in continental Europe. Here, the use of ‘delict’ or ‘extra-contractual liability’ is more common. However, European comparative law books and articles on extra-contractual liability generally use the ‘tort’ terminology and it has now become common parlance.

Three tiers of European tort law can be distinguished. The upper tier is supranational law: the case law on the European Convention on Human Rights (ECHR) (section II) and EU law (section III). The lower tier consists of the national tort laws in Europe (section IV). These are very diverse even though they are increasingly influenced by other national systems and supranational law, due to permeable borders and border crossing information. The link between the upper and lower tier is European comparative tort law (section V). This is a source for supranational and national legislators and judges and a tool to search for a European ius commune.

The three tiers can be distinguished but not separated. EU legislation and case law of the European Court of Justice (ECJ) are influenced by the case law of the European Court of Human Rights (ECtHR) and by comparative law. National legislation and case law are influenced by Community law, by the ECHR and by other national legal systems. These developments illustrate the end of the so-called billiard-ball state.