EU Tort Law

Sources and Structure

EU tort law operates at multiple levels. The Treaty on the Functioning of the European Union (TFEU) provides for the non-contractual liability of the Union itself (Article 340(2) TFEU). The Court of Justice of the European Union (CJEU) has developed the principle of member state liability for breach of EU law (the Francovich doctrine). Secondary legislation includes directives harmonising specific areas of tort law, most importantly the Product Liability Directive 85/374/EEC. Academic projects — the Principles of European Tort Law (PETL) and the Draft Common Frame of Reference (DCFR) — propose principles for a future harmonised European tort law. These sources interact with national tort systems, creating a multi-level governance framework.

Non-Contractual Liability of the EU: Article 340(2) TFEU

Article 340(2) TFEU provides that the Union shall, in accordance with the general principles common to the laws of the member states, make good any damage caused by its institutions or by its servants in the performance of their duties. The provision establishes the non-contractual liability of the Union as an autonomous system of law, interpreted and applied by the CJEU.

The Schöppenstedt formula (Aktien-Zuckerfabrik Schöppenstedt v. Council [1971] ECR 975) required a sufficiently serious breach of a superior rule of law protecting individuals. The Bergaderm test (Bergaderm SA and Goupil v. Commission [2000] ECR I-5291) modernised the conditions, establishing three requirements: (1) the rule of law infringed must confer rights on individuals, (2) the breach must be sufficiently serious, and (3) a direct causal link between the breach and the damage. A sufficiently serious breach occurs where the institution manifestly disregards the limits of its discretion. Where the institution has no discretion, a mere infringement may suffice.

Damage must be actual and certain. Direct causal link requires a sufficiently direct nexus; intervening acts may break the chain.

Legislative and Administrative Acts

The distinction between legislative and administrative acts affects the strictness of the sufficiently serious breach requirement. For legislative measures involving policy choices, the Court applies greater deference, requiring a manifest and grave disregard of discretion. For administrative acts, where discretion is narrower, a mere illegality may establish a sufficiently serious breach. The Union is not liable for lawful acts, even where they cause disproportionate damage (FIAMM v. Council and Commission [2008] ECR I-01683, declining to recognise liability for lawful acts in the absence of a specific legal basis).

Liability of Member States for Breach of EU Law

The Francovich principle (Francovich v. Italy [1991] ECR I-5357) established that member states are liable to individuals for loss caused by breaches of EU law. The case involved Italy’s failure to implement Directive 80/987 on the protection of employees in the event of insolvency. The Court held that the full effectiveness of EU law would be impaired if individuals could not obtain compensation when their rights were infringed by a breach of EU law attributable to a member state.

The conditions for state liability were elaborated in Brasserie du Pêcheur SA v. Germany and R v. Secretary of State for Transport, ex parte Factortame Ltd (No. 3) [1996] ECR I-1029. Three conditions must be satisfied: (1) the rule of law infringed must be intended to confer rights on individuals, (2) the breach must be sufficiently serious, and (3) there must be a direct causal link between the breach and the damage sustained by the injured party. The conditions apply regardless of which organ of the state caused the breach — legislature, judiciary, or executive.

A sufficiently serious breach by a member state is determined by the same factors as for Union liability. Manifest and grave disregard of the limits of discretion constitutes a sufficiently serious breach. Failure to implement a directive within the prescribed period is, in itself, a sufficiently serious breach. Where the member state had no discretion, a mere infringement may suffice.

The principle of state liability applies to judicial decisions in Traghetti del Mediterraneo SpA v. Italy [2006] ECR I-5177: a member state is liable for damage caused by a national court’s manifest infringement of EU law. The liability is supplementary to the right to reparation under national law; national procedural rules apply provided they are not less favourable than those for similar domestic claims (principle of equivalence) and are not so framed as to make reparation virtually impossible (principle of effectiveness).

Product Liability Directive 85/374/EEC

The Product Liability Directive harmonises strict liability for defective products across the EU. The Directive imposes liability without fault on the producer for damage caused by a defect in the product. The injured person must prove the damage, the defect, and the causal relationship between them.

A defect exists where the product does not provide the safety which a person is entitled to expect, taking into account all circumstances including presentation, reasonably expected use, and the time of putting into circulation. Damage covered includes death and personal injury and damage to (or destruction of) property ordinarily intended for private use, subject to a lower threshold of €500. The Directive harmonises the field completely (maximum harmonisation): member states may not adopt stricter or more lenient rules.

Defences include: the defect is attributable to compliance with mandatory regulations; the product was not put into circulation; the defect did not exist at the time of circulation; the development risks defence (the state of scientific and technical knowledge at the time was not such as to enable the discovery of the defect); and, for component parts, that the defect is attributable to the design of the finished product or to the manufacturer’s instructions.

The limitation period is three years from the day the plaintiff became aware or should reasonably have become aware of the damage, the defect, and the identity of the producer. A long-stop period of ten years from the date the product was put into circulation extinguishes all rights unless proceedings have been commenced.

Principles of European Tort Law (PETL) and the DCFR

The European Group on Tort Law drafted the Principles of European Tort Law (PETL, 2005) as a non-binding restatement of general principles drawn from the common core of European legal systems. The PETL adopt a broad notion of recoverable damage requiring harm to a legally protected interest. Liability is primarily fault-based (Article 4:101), with strict liability for abnormally dangerous activities (Article 5:101). Causation follows the conditio sine qua non test, supplemented by proportional liability for uncertain causation. Punitive damages are excluded.

The Draft Common Frame of Reference (DCFR, 2009) includes Book VI on non-contractual liability, adopting a unitary concept of legally relevant damage covering life, bodily integrity, health, dignity, liberty, and property. Liability is based on accountability: intentional causation, violation of statutory duty, or negligence. The DCFR has not been adopted as binding law but influences academic discourse and CJEU interpretation.

The European Centre of Tort and Insurance Law (ECTIL, Vienna) publishes the European Tort Law Yearbook and provides comparative materials for national courts and the CJEU.

Future Directions

The Product Liability Directive is under review for reform to address artificial intelligence and software defects. The proposed AI Liability Directive (2022) addresses causation and evidence for damage caused by AI systems, proposing a presumption of causality. EU tort law reflects an ongoing tension between harmonisation and respect for national legal traditions, resolved through minimum standards and gradual convergence under CJEU influence.