From the very beginning, the Author places the monograph in the private law perspective, and analyses the subject matter from a tort lawyer's point of view. This is the important contribution to EU tort law literature, which still seems underestimated by European private lawyers. The liability schemes existing in the EU law structure initially have not been the subject of research in renowned and comprehensive comparative scholarly work (compare
The liability schemes existing in the EU law structure initially have not been the subject of research in renowned and comprehensive comparative scholarly work (compare
The monograph is divided into
Vicarious (personal torts of individual officials and employees) and quasi-vicarious liability (torts of EU executive officers, EU bodies and institutional organs), according to the author, are traditional State liability for torts in public office committed by EU servants or bodies, based on the fault (faute personelle or organisational fault) (p. 43–44). The author points out that vicarious liability of the Union is neglected and misallocated in the breach-of-law division of the EU non-contractual responsibility and it should be reconsidered as an independent field of EU liability. However, no further considerations or answers are given to the questions of whether demonstrating the absence of fault will exempt from liability, who should prove fault and what criteria should be taken into account to assess the fault (degree of fault).
The second type of liability distinguished in this part is breach-of-law liability, which is not a tort (fault) committed by a public servant/institution but ‘normative incident’ constituted by unlawfulness of a legislative, a judicative or an administrative act or omission (wrongful acts) (p.55). Liability is triggered in the case of ‘relevant breach’, whose assessment depends on the scope of discretion. In case of wide margin of distraction manifest breach is needed (gross malfunctioning/maladministration), while in case of no discretion plain unlawfulness is sufficient. This widely accepted distinction is complemented by the author's original recognition of the third category concerning institutional fault in cases without discretion but with high uncertainty in a situation of factual (scientific) and legal complexity, which requires due diligence (sound administration). The author rightly criticises that the current formula of ‘sufficiently serious breach’ means everything and nothing. (p. 64).
Although the above-mentioned the distinction between two types of liability proposed by the author is intriguing, the author does not thoroughly explore the liability conditions. When it comes to a causal link, the author quite categorically states that the causal link is simply assessed by ‘but for test’, which is based on general principles common to the laws, and elements such as directness and certainty are normative criteria and thus they do not belong to the matter of causation (p. 69–70). This is undoubtedly a view with which one can argue and which depends on the general understanding of the causal link in law and the relationship between factual and normative causation. Even if the author distinguishes normative elements from causation, in his monograph he does not analyse the notion of ‘directness’, which prevails in the CJEU case law. In case of damage, the more detailed deliberations are included in the section ‘Consequences of Liability’, which on the one hand is consistent with the book's structure, but on the other it can be onerous for the reader's attention. Interesting section is devoted to fault. The author indicates that fault is required in vicarious liability cases (organisational fault in quasi-vicarious liability), but the elements of fault can be found also in the case of breach of law: in institutional fault in cases of high complexity, and gross maladministration in cases including wide discretion (p.73–74).
Second, the author discusses third-party effects on fundamental rights of the EU charter (freedoms and fundamental rights, cases
The consistent distinction between vicarious liability and breach-of-law liability is also maintained while discussing damages. In case of vicarious liability, the author indicates: personal injuries (medical treatment, physiotherapy), consequential damages, non-economic loss (which should be assessed by lex loci delicti), wrongful death (which has not yet been considered) and grief and trauma (liability of the insurer); however, in those cases, some doubts may be raised by the mention of the case
This part, however, pays scant attention to interests and ignores the distinction between default interests and compensatory interests, the moment of calculating interests and their rates. Limitation period based on Art. 46 of Status is also only briefly discussed, without an in-depth analysis (p.143–145). The role of limitation period in tort law area has been recently recognised by the European Group on Tort Law in the ongoing project: Principles of European Tort Law – Prescription and Time Limits in Tort.
The role of limitation period in tort law area has been recently recognised by the European Group on Tort Law in the ongoing project: Principles of European Tort Law – Prescription and Time Limits in Tort.
In Summary and Commentary of this part (p. 147–149), the author critically assesses the role of non-contractual liability for breach of EU law in fulfilment of EU law effectiveness. Equally interesting, though omitted by the author, issue concerns the reactions of national courts to the principles of Member State liability and liability of private parties formulated by the CJEU and the effectiveness of these principles in the practice of dispute resolution by national courts. As the examples from national case law show, in many cases national courts avoid using the CJEU rulings, and, even if they refer to them, they tend to interpret national law in a way that results in not awarding damages. Compare W. Matti, A-M. Slaughter, Revisiting the European Court of Justice, International Organization, Winter 98, vol. 52, issue 1, p. 177.
Compare W. Matti, A-M. Slaughter, Revisiting the European Court of Justice, International Organization, Winter 98, vol. 52, issue 1, p. 177.
The second one is staff cases (employee–employer like relationship). The author lists the interests protected in staff cases, Including remuneration, career progress, recruitment, health and enjoyment of life.
Including remuneration, career progress, recruitment, health and enjoyment of life.
In 2018 the Commission selected the Expert Group on liability and new technologies (E03592),
In 2018 the Commission selected the Expert Group on liability and new technologies (E03592),
In Book II, the author rightly focuses on product liability. As regards damage, it is worth to mention the author's views on: the possibility of covering by the Directive the damage caused to embryo; distinguishing from personal injuries: injury to body and injury to health (case
When it comes to the notion of ‘product’, the author considers as a product any professionally and for economic purpose manufactured moveable thing (Art. 2 and Art. 7). Based on that, products are parts of human body (e.g. organs, only when they are processed and stored (p. 176)), industrial by-products (residues are the problem of environmental law, p. 177) and computer software (only when it is stored on a tangible medium).
Next, the author focuses on the notion of ‘defect’ as a central and the most controversial notion of EU product liability. Defects that are covered by the Directive concern: manufacturing defects (flaws), design (construction) defects and instruction warning defects. According to the author's view, common opinions on a uniform category of product defect and recognising product liability as strict liability are only half-truth (p.180). Product liability in the monograph is presented as a hybrid – a quasi-strict liability. On the one hand, strict (no-fault) liability is applied for manufacturing defects (defectiveness comes from a factual deviation from other item of the same production process, and it does matter if a deviation could be avoided) and to the extent in which Member States exclude development risk defence. On the other hand, the objective negligence liability of enterprises is applied in regular construction (design) and instruction defects (the normativity of the defect and safety category constitute the structural analogy to negligence law, and courts proceed as they do in cases of negligence – in order to determine ‘defectiveness’ they have to assess normative alternative standard of safety) (p. 180–181, 184).
In case of the notion of ‘producer’, the author analyses the entities that can be liable under the Directive. When it comes to exclusionary grounds, the author focuses on development risks, which are restricted to design or construction defects (flaws and one-offs are not covered) (p.188). The way development risk defence is regulated, the author reads as political compromise, which in fact burdens the risks on the victims. The author also raises the issue of caps for damages in cases of serial losses (damage resulting from death/injury caused by identical products with the same defect), prescription (the problem of unavoidable error on the producer – the limitation period remains unaffected towards the right producer) and a cut-off period that leads to the extinction of rights (the bitter of the case
In Conclusion (p. 191–192), the author criticises that the Directive does not cover commercial property and non-material damage, excludes development risks for design defects from EU product liability law and does not provide a remedy in cases of producer's failure to monitor the product nor oblige it to react properly (e.g. through post-sale warning). However, in my opinion, the Conclusion lacks the author's considerations on the directions of product liability development in terms of technological development, including considering the separation of medicines from the current regulation, establishing presumptions of the existence of a defect and a causal link and extending the notion of product for intangible goods based on data. The problem of new technologies has been already recognised by the European Commission and the formation of the Expert Group on liability and new technologies (E03592).
The author also presents the failure of adapting service liability directive (p. 193), rightly searching for the reasons for failure in too heterogeneous field of services, and close relations to contractual relations.
To sum up, the author presents his readers with the uneasy area of liability for damages in the EU law and, in a consistent manner, and as far as possible, systematises these issues among the ‘juristic jungle’ p. 33. The assumed goals forced the construction of the monograph focused on systematising private-law elements and the attempt to comprehensively discuss them (especially visible in Book I). The attempt to look at the EU tort law comprehensively led to the situation in which less attention has been devoted to the liability conditions, and in many fragments the reader may not be sure whether issues discussed collectively in the same scope will apply to the liability of the European Union, Member States or private parties.
To facilitate orientation among the discussed issues, it would be desirable to add an introduction (apart from the General Introduction), which would clearly present the main idea of the monograph, the adopted criteria for the division of issues, the overview of the main text, the objectives of the argumentation and the justification of sometimes surprising statements. Taking into account that the aim of this monograph is to present EU tort law in the systematised way, such an introduction could be a valuable guideline (road map) for readers.
The author demonstrates a remarkable ability to include in a skilful and non-overwhelming manner historical and legal threads, which explain the development of the line of CJEU jurisprudence and show the regularity outlined in the development of the EU tort law (e.g. p. 37, 53, 152, 165–168). The author, when it is necessary, also cites the AG opinions, which were not always accepted by the Court but which significantly contribute to the development of tort doctrine (e.g. AG opinions in cases
The monograph, however, lacks, in my opinion, a critical analysis and highlighting problems regarding the application of the EU law by national courts on the basis of internal regulations and the national procedure (in cases of Member State liability, private party liability and product liability). It is worth emphasising the issues related to how little we know about the factual interaction between CJEU and national courts, as well as insufficient use of preliminary ruling procedure by national courts, and the way of monitoring of compliance of national legal practices with EU law. These problems are essential for applying private law in practice, taking into account that not all of the disputes are resolved before courts (or they do not reach higher instances) and there are not effective mechanisms that enable to investigate this interaction. The omission of these problems in the monograph can be explained by its limited scope, although their inclusion would undoubtedly affect the practical problems associated with the functioning of the tort law mechanisms, and not just the recognition of the issue of responsibility in a model way.