Bridging the unbridgeable: Community and national tort laws after francovich and brasserie

International and Comparative Law Quarterly

Volumn 45, Issue 3, 1996, Pages 507-544

  Van Gerven, W ^a  

^a MAASTRICHT UNIVERSITY   (Netherlands)

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EID: 84937277659     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300059340     Document Type: Article

References (224)

1. The latter part of the title replaces that in the Durham version, “‘Who, then,… is my neighbour’ in Community law?”, a reference to Lord Atkin's famous question in Donoghue v. Stevenson [1932] A.C. 562 (HL).
2. See my earlier contribution “Bridging the Gap between Community and National Laws: Towards a Principle of Homogeneity in the Field of Legal Remedies” (1995) 32 C.M.L.Rev. 679–702.
3. Joined cases C-6/90 and 9/90 Francovich [1991] E.C.R. 1–5357
4. confirmed in Case C-334/92 Wagner Miret [1993] E.C.R. 1–6911.
5. For a general overview, see Schockweiler. Wivenes and Godart. “Le régime de la responsabilité’ extra-contractuelle du fait d'actes juridiques dans la Communauté’ euro-péenne” (1990) Rev.trim.eur. 27,30 et seq.
6. Spartan Steel & Alloys Ltd v. Martin & Co. (Contractors) Ltd [1973] 1 Q.B. 27.
7. Pure economic loss is a rather vague concept. It does not cover e.g. loss of profits as the result of machinery damaged by negligence being out of operation, but covers loss of profits which is the result, as in Spartan, of the inability to sell the product damaged by the interruption of electricity supply due to negligence: see Winfield & Jolowicz on Tort (14th edn, by Rogers), pp.93–94.
8. Idem, p.94 and accompanying n.13.
9. B.G.H.Z. 41,123
10. N.J.W. 1964, 720.
11. Judgment of 12 July 1977, N.J.W. 977,2208
12. J.Z. 1977,721.
13. English version by T. Weir reproduced in B. S. Markesinis. The German Law of Torts (3rd edn, 1994), p.184.
14. A.J.D.A. 1972 II Jur. 356 with the opinion of the Commissaire du gouvernement. M. Bertrand.
15. N.J. 1961, No.570, p.1217; upholding the decision of the Court of Appeal of the Hague of 24 Jan. 1957.
16. For a further discussion see Markesinis, N.J., at pp.891 et seq.
17. Idem, p.892.
18. Idem pp.903 et seq. It does not normally allow reparation for loss or damage which is the consequence of a breach of Community law by the legislature, whose tasks relate, in principle, to the public at large and not to identifiable persons or classes of persons: para.71 of the ECJ's Brasserie judgment: see infra.
19. See Brealy and Hoskins. Remedies in EC Law (1994), p.76. mentioning also the possibility of exemplary damages.
20. See in that respect para.89 of the Brasserie judgment, idem.
21. Brealy and Hoskins. idem, pp.75–76 citing Mann J in Bourgoin.
22. infra n.48. Moreover, such an abuse is inconceivable in the case of the legislature: para.73 of the Brasserie judgment, idem.
23. At a certain point in time (until Anns v. Merlon London Borough Council [1978] A.C. 728 was reversed by Murphy v. Brentwood D. C. [1991] 1 A.C. 398) it was not unlikely that the rules on negligence were evolving in the direction of the existence of a duty of care owed by public authorities, perhaps even to compensate pure economic loss, towards a person as remote as the purchaser of a house (which the public authority had inspected and, wrongfully, found safe and secure).
24. See the discussion in T. Weir, A Casebook on Tort (7th edn, 1992), pp.39 et seq.
25. See A Casebook on Tort.
26. See e.g. in the case of a water authority required by an Act to assure that the water be wholesome Read v. Croydon Corp. [1983] 1 All E.R. 631
27. referred to by Weir, idem, p.167.
28. However, even then only the ratepayer, and not his family, may found on the water company's duty to provide wholesome water: idem. p. 169.
29. For a general overview, as an introduction to a discussion of Francovich as well as Art.215, para.2. EC and individual tort liability, see my article, “Non-Contractual Liability of Member States. Community Institutions and Individuals for Breaches of Community Law with a View to a Common Law for Europe” (1994) 1 Maastricht J. European and Community L. 6.
30. Case 222/86 [1987] E.C.R. 4047. para.14.
31. Case 222/84 [1986] E.C.R. 1651,1683.
32. Joined cases C-143/88 and C-92/89 Zuckerfabrik [1991] E.C.R. 1–415. para.26.
33. See also Brasserie, E.C.R. at para.33, where the principle is relied on to hold member States liable for breaches of Community law by the legislature, since the obligation to make good damage cannot depend on domestic rules as to the division of powers between constitutional authorities.
34. Advocate-General Jacobs puts it as follows: “Community law has to be interpreted and applied uniformly in all the Member States. The need for uniformity has often been stressed but the explanation is quite simply that, in the absence of uniformity, there would be no Community law” (“Remedies in National Courts for the Enforcement of Community Rights”, in Liber Amicorum for Don Manuel Diez de Velasco (1993), p.969; see also p.982).
35. See further my Liber Amicorum for Don Manuel Diez de Velasco, at pp.690–695
36. and R. Caranta, “Judicial Protection Against Member States: A New Jus Commune Takes Shape” (1995) 32 C.M.L.Rev. 703–726.
37. See T. Koopmans, “The Quest for Subsidiarity” and A. Barav, “Omnipotent Courts”, in Schermers Liber Amicorum, Vol.11 (1994), pp.50 and 268, respectively.
38. Starting with the ECJ's judgments in Case 33/76 Rewe and Case 45/76 Comet [1976] E.C.R. 1998 and 2053. For later judgments see the enumeration in the recent ECJ's judgment of 14 Dec. 1995 in Joined cases C-430/93 and C-431/93 Van Schijndel (not yet rep.), para.17.
39. E.C.R. at para.42. and repeated in Van Schijndel, E.C.R., and in the judgment of the same date in Case C-312/93 Peterbroeck (not yet rep.), para.12.
40. Francovich, idem, para.43.
41. In the Van Schijndel and Peterbroeck judgments, idem. there is no such renvoi in respect of substantive conditions, rightly so since these judgments relate clearly to procedural matters proper.
42. See my idem. at pp.692–694.
43. See also, in respect of inadmissible procedural limitations, R. Koch. “Einwirkungen des Gemeinschaftsrechts auf das nationale Verfah-rensrecht” (1995) E.U.Z.W. 78.
44. E.U.Z.W.
45. See for a description of the Court's case-law Advocate-General Jacobs, E.U.Z.W. and his recent opinions in Peterbroeck and Van Schijndel.
46. E.U.Z.W., where he compares and distinguishes procedural rules of the type at issue in the latter cases and those at issue in Simmenthal
47. (Case 106/77 [1978] E.C.R. 629)
48. and Factortame (Case 213/89 [1990] E.C.R. 1–2433). But see the ECJ's judgment in Peterbroeck where it finds the national rule incompatible because it limits the enforceability of Community rights too drastically (I would assume).
49. Francovich, E.C.R., at para.35.
50. Idem, para.38.
51. The principle of Francovich liability is, together with the requirement of interpretation of national laws in conformity with directives, an essential element in the enforcement of Community rules laid down in directives which have not yet, or not fully or correctly, been implemented. Taken together these two doctrines render the refusal to acknowledge the horizontal direct effect of directives, as confirmed in Paola Faccini Dori (Case C-91/92 [1994] E.C.R. 1–3325) and thereafter El Cone Ingles (Case C-192/94. not yet rep.), of little interest.
52. As already decided in Case C-188/89 Foster [1990] E.C.R. 1–3313. paras.21–22.
53. Brasserie judgment, E.C.R. at para.22
54. discussed infra.
55. Opinion of 28 Nov. 1995 in Joined cases C-46/93 and C-48/93. in Case C-392/93 (all E.C.R.) and in Joined cases C-178 and 179/94, C-188,189 and 190l94(Diltenkofer) (all not yet rep.).
56. See my E.C.R. at pp.37–38 and my opinion of 27 Oct. 1993 in Case C-l 28/92
57. Banks [1994] E.C.R. 1–1212, paras.49 et seq. where I have tried to summarise the conditions for liability resulting from the Art.215, para.2, EC case law of the ECJ with a view to the Francovich liability.
58. At para.71 of his opinion in [1991] E.C.R. 1–5000. But see Advocate-General Léger's opinion in Hedley Lomas.
59. E.C.R., at paras. 128 et seq. and 138 et seq.
60. Bourgoin SA v. Ministry of Agriculture, Fisheries and Food [1986] Q.B. 716.
61. Thus in Joined cases 83 and 94/76.4,15 and 40/44 Bayerische HNL [1978] E.C.R. 1209, para. 6.
62. Case 5/71 Schöppenstedt [1971] E.C.R. 975. para.11 (the words between brackets refer to a change introduced into the formula by later judgments).
63. Bayerische, E.C.R.: also Joined cases 104/89 and 37/90
64. Mulder and Heinemann [1992] E.C.R. 1–3061. para.12.
65. Brasserie judgment, E.C.R., at para.42.
66. Idem, para.22. The Court thus explicitly acknowledges that “direct effect” and “State liability” are no alternative remedies, and rejects the position that “State liability” was recognised in Francovich only “to fill a lacuna in the system for safeguarding rights of individuals namely in case of not directly effective Community law provisions”: para.22 junao para. 18.
67. Idem, para.29.
68. Idem, para.32. See also para.34 where international law is relied on as a precedent to hold the State liable irrespective of whether the breach is attributable to the legislature, the judiciary or the executive.
69. Idem, para.45 where the reasons for that strict approach are recalled
70. see infra n.89.
71. For a discussion of the requirements of harmonisation, consistency and homogeneity, see my “Toward a Coherent Constitutional System within the European Union”, 5th Bonner Europa-Symposium, Die Verfassung der Europäischer Union (1995) at pp.39 etseq.
72. also in (1996) European Public Law 81–101.
73. In Brasserie, European Public Law, the ECJ rejects the submission of the German government that a general right to reparation can be created only by legislation and not by judicial decision: see paras.24–30.
74. For an excellent overview of the Court's Art.215, para.2. EC case law both for individual and legislative measures, see J. Steiner, Enforcing EC Law (1995), pp.144 et seq.
75. Brasserie, Enforcing EC Law. at para.40.
76. As the Court explicitly said in Zuckerfabrik, Enforcing EC Law. at para.26. in respect of the remedy of interim relief, such uniform application is a fundamental requirement of the Community legal order.
77. See also Brasserie, idem, para.33.
78. I am leaving aside conditions of a procedural nature: but see Van Schijndel and Peterbroeck, idem and accompanying text, and Jacobs, idem n.29.
79. As the Court said in Francovich. idem, at para.38. where it laid down the conditions in respect of full non-implementation of a directive, and confirmed in Brasserie.
80. idem. at para.38, where the Court specified the conditions in respect of unlawful conduct on the part of the national legislature.
81. See more particularly Advocate-General Tesauro's opinion in Brasserie and Factortame, idem. at paras.70 et seq.
82. See also my earlier opinion in Banks, idem, where I tried to make use of the Court's Art.215. para.2.
83. case law to define common conditions of substantive law regarding the liability of member States, of Community institutions and of individuals (the latter being raised in that case: see infra).
84. See also Advocate-General Léger's opinion in Hedley Lomas, idem. at paras. 135 ef seq. and paras. 152 et seq. esp. para. 160. In the earlier version of this article, as published by the Durham European Law Institute.
85. I referred to the recent House of Lords decision in X (minors) v. Bedfordshire [1995] 1 All E.R. 353, where a rather similar effort is made, under English law, by Lord Browne-Wilkinson to distinguish between different categories of breach in the exercise of statutory powers by a public authority.
86. See e.g. under Art.215, para.2. Case C-l52/88 Sofrimport [1990] E.C.R. 1–2477, para.29 where the Court refers to the potential existence (absent in that case) of a countervailing higher public interest to justify the breach.
87. That point has been decided both in respect of liability under Art.215. para.2. EC (see Joined cases 5,7 and 13–24/66 Kampffmeyer [1967] E.C.R. 245) and under Francovich (the first condition in para.40 of the judgment).
88. Joined cases 64 and 113/76.167 and 239/78,27,28 and 45/79 Dumortier Frères [1979] E.C.R. 3091, para.21. See also the recent decision of the CFI in Case T-168/94 Blackspur DIY(1995, not yet rep).
89. See Case 145/83 Adams v. Commission [1985] E.C.R. 3539.
90. Thus Bayerische, E.C.R., at para.6.
91. See also Steiner. E.C.R. at pp. 148149 and 151.
92. See Brasserie judgment, E.C.R., and Advocate-General Tesauro's opinion, E.C.R., at paras.97 et seq.
93. See Joined cases 116,124/77 Amylum [1979] E.C.R. 3497.
94. This defence raises difficult questions of a procedural nature. Cf. W. Wils, “Concurrent Liability of the Community and a Member State” (1992) 17 E.L.Rev. 191 et seq.
95. See Steiner, E.L.Rev., at p. 151 where less straightforward judgments are cited as well.
96. See the Court's judgment in Mulder and Heinemann, E.L.Rev. at para.26 and also my opinion, para.47.
97. The Court has in the meantime acknowledged that point explicitly in Brasserie, E.L.Rev., at para.87.
98. See also infra.
99. See for a situation of potential immaterial damage to the person Joined cases 169/83 and 136/84 Leussink-Brummelhuis [1986] E.C.R. 2801.
100. Cf. also Case 53/84 Adams v. Commission, E.C.R.
101. Joined cases 56–60/74 Kampffmeyer [1976] E.C.R. 711, para.6
102. and further references in the opinion in Banks, E.C.R., at para.51. note 138. The Court referred thereby to the majority of legal systems in the member State “which recognize an action for declaration of liability based on future damage which is sufficiently certain”.
103. Joined cases 29,31,36,39–47,50 and 51/63 S.A. Laminoirs [1965] E.C.R. 911,939.
104. See e.g. Mulder and Heinemann, E.C.R., where in paras.23–36 the rules on full compensation are neatly and thoroughly applied.
105. See Bayerische, E.C.R. at para.6.
106. See also Steiner. E.C.R. at pp.148–149 and 151.
107. Case C-271/91 Marshall II [1993] E.C.R. 1–4367, para.26: the words between brackets are taken from para.25.
108. See my opinion in that case [1993] E.C.R. 1–4381, paras.14–19.
109. See my E.C.R. at p.694.
110. See also Curtin and Mortelmans. “Application and Enforcement of Community Law by the Member States …”, in Schermers. E.C.R., at pp.451 et seq.
111. Bayerische, E.C.R., at para.6.
112. As to causation, the Court indicates that the causal link must be direct but leaves the determination thereof to the national courts (Brasserie, E.C.R., at para.65), which may find some elements of interpretation in the Court's Art.215 EC case law the Court having taken the position that both Community liability legal systems are based on similar principles.
113. See text accompanying E.C.R.
114. Idem, paras.67 and 82 el seq. As described above, the latter point is in line with previous case law of the Court.
115. As to the “familiar” principles of equality and effectiveness, see text accompanying Idem.
116. Idem.para.39.
117. Idem, paras.40–42.
118. By the strict approach is meant an approach full of understanding for the public authorities and thus restrictive for the plaintiffs. In idem, para.45 the Court recalls the reasons for that strict approach, namely not to hinder the legislative function and to respect the exercise of wide discretion in a legislative context.
119. Thus leaving, as the Court says, a considerably reduced margin of discretion to the member States (cf. idem, para.46). That statement should be understood to mean: no discretion at all as to the fact that the directive must be implemented within a given period, and a limited discretion to choose, from the alternatives left open by the directive, the one which the member State concerned finds the most appropriate.
120. Idem, paras.48–49.
121. Idem, para.51. Obviously, there is a fourth condition for liability to arise–to wit that the plaintiff has suffered injury or damage.
122. Idem, para.54.
123. Idem, para.65.
124. See Idem.
125. Idem, para.55.
126. It appears from idem, para.58 read in conjunction with para.41 of the British Telecom judgment, Idem, that the Court will assess itself whether the facts amount to a sufficiently serious breach of Community law (on the part of the member State) when it has all the necessary information (as in British Telecom) whereas otherwise it will only “indicate a number of concrete circumstances which the national courts might take into account” (as in Brasserie and Factortame).
127. That situation being dealt with separately in para.46 of the Brasserie judgment, idem
128. but see Idem.
129. Mem, para.57.
130. Idem, para.64.
131. Cf. idem, para.45. To which category one might add in my view (see text following Idem) the situation where the authority has to make value judgments or to assess complex economic situations.
132. Idem, para.47.
133. I realise that the Court found itself in a difficult situation, having to choose between those advocating the reversal, or at least non-extension, of the Francovich ruling and those preferring a more generous approach for the plaintiffs suffering damage from legislative action. As for myself I believe that the Court was right in applying the Schöppenstedt formula in situations involving policy decisions (and the like: see Idem) for which it was created, but not for situations involving interpretation of legal rules.
134. Brasserie judgment, Idem, at para.59.
135. Idem.
136. Idem, paras.61–63.
137. British Telecom judgment, Idem, at para.43.
138. See para, of text ending with Idem.
139. Francovich, Idem. at para.38.
140. Case C-334/92 [1993] E.C.R. 1–6911.
141. Referred to in E.C.R.
142. As indicated before, in Brasserie, E.C.R. at para.46, the Court cited the Francovich situation as an example of a situation where the member State's margin of discretion is reduced “sometimes to a considerable degree”. Nevertheless, in para. 56 of the judgment.
143. idem, “the measure of discretion” is quoted as one of the elements in assessing the presence of a sufficiently serious breach. Why. then, not bring the Francovich situation entirely under the general decisive test defined in para.55 of Brasserie, by the same token as “direct discrimination” is held to come “manifestly” under the test in Brasserie, at para.61?
144. Thus, idem, paras.66–67, to be compared with para.79 which indicates that member States may not use tests which are less demanding for the authorities, e.g. by requiring that “fault” be proved by the plaintiff above and beyond a sufficiently serious breach.
145. See idem.
146. Case 128/92 [1994] E.C.R. 1–1209.
147. Idem, para.17.
148. That is in line with the ruling of the Court later in Brasserie.Idem. at paras.51–52.
149. where the first-stated condition for State liability is that the infringed rule of law must be intended to confer rights on individuals. See also Idem.
150. See my opinion at [1994] E.C.R. 1–1209, 1249. para.43.
151. See also D. Waelbroeck, “Treaty Violations and Liability of Member States and the European Community: Convergence or Divergence?”, in Schermers. E.C.R., at p.475 with further references.
152. Brasserie, E.C.R., at para.22.
153. Cf. Jo Shaw. “Decentralization and Law Enforcement in EC Competition Law” (1995) 15 Legal Studies 128, 143–144.
154. In Brasserie. Legal Studies, at para.39 the ECJ has declared in the meantime that “the full effectiveness of Community rules and the effective protection of the rights which they confer form the [first] basis for State liability”. The same obviously holds true for the liability of individuals breaching obligations which Community law imposes upon them.
155. The horizontal character of Art.48 EC also comprises the application of the grounds of justification contained in Art.56; see Bosman. idem, para.85.
156. Idem, para.145.
157. Lord Denning MR in the English Court of Appeal's judgment of 22 May 1974 in Bulmer v. Bollinger [1974] 3 W.L.R. 202.
158. [1974] 2 All E.R. 1226.
159. All E.R. at paras.4 and 7.
160. All E.R., at paras.1 15–127.
161. All E.R. at para.7. first indent.
162. Idem, second indent (fn. omitted).
163. That is. loss not directly consequential on damage to property or the person: see Idem.
164. Idem. at para.7. third indent (fnn. omitted).
165. See the reference to Garden Cottage, infra n. 131.
166. Idem, fourth indent.
167. Follow references to Bourgoin. Idem.
168. and a footnote to Kirklees Metropolitan Borough Council v. Wickes Building Supplies Limited [1992] 3 W. L. R. 170. in particular at 188, where the House of Lords itself has questioned whether Bourgoin was correctly decided.
169. After the ECJ's decision in Francovich. Bourgoin seems to be overruled (see infra n.132). However. Parker LJ's considerations in respect of the necessity of equal treatment of Community institutions under Art.215 EC and national public authorities are not overruled and may have contributed to convincing the ECJ to opt in Brasserie, as shown infra, for consistency between the two Community tort liability legal systems.
170. Garden Cottage Foods Ltd v. Milk Marketing Board [1984] 1 A.C. 130.
171. A.C. In Kirklees.
172. A.C. the House of Lords, per Lord Goff. doubted whether Bourgoin can be considered good law after Francovich.
173. Brasserie, A.C. at paras.73 and 87 respectively.
174. Idem, para.79.
175. The same holds true for the extent of reparation: see idem, para.89 regarding the award of exemplary damages under English law.
176. See Advocate-General Tesauro's opinion, idem. at para.4.
177. See e.g. the Bundes-gerichtshof s decision (B.G.H.Z. 56,40). where also the second cause of action referred to in the next fn. is dealt with.
178. B.G.H.Z.
179. I am leaving aside here a second cause of action, discussed in B.G.H.Z., which is typical for German law according to which State liability may also arise “on account of an unlawful act of the public authority which is capable of being equated with expropriation” (B.G.H.Z.).
180. I am also leaving aside questions in respect of liability of the administration under the same provisions (Art.34 Basic Law and s.839 Civil Code) because of a wrong consisting of applying an Act which it knew was inconsistent with directly effective Community law. and therefore in not applying Community law. See on these and other points. J. Geiger. “Die Entwicklung eines Europäischen Staatshaftungsrecht” (1993) D.V.B.L. para.465.
181. See also, in connection with the Community directive at issue in Dillenkofer. S. Leible and O. Sosnitza. “MP Travel Line. EG-Recht und Staatshaftung” (1993) M.D.R. 1159.
182. Brasserie, M.D.R., at para.71.
183. The fact that such limitation also applies, under that national legal system, to breaches of “higher-ranking national provisions”–as in Germany under provisions of the Basic Law–is no valid justification: idem, paras.69–72.
184. Idem, paras.86–87.
185. Idem. at paras.112 et seq.
186. In its Nicolo judgment of 20 Oct. 1989 J.C.P. 89, ed. G,II,21371 and thereafter, also in respect of Community directives, in its Rothmans France and Philip Morris France decision of 28 Feb. 1992 as well as in the judgment referred to infra n.143.
187. both reported in A.J.D.A. 1992–3. pp.224–226. with the opinion of Ms Laroque.
188. Commissaire du gouvernement, p.210.
189. Thus in its judgment, also of 28 Feb. 1992 in Arizona Tobacco Products and Philip Morris France, idem, p.225.
190. Advocate-General Léger's opinion, idem, at para. 119.
191. See also with further references Barav. idem, at pp.294 et seq.
192. Droit fiscal (1992), No. 1665. p.1420
193. R.J.F., 8–9 (1992), No.1280.
194. See also the decision of (the 2nd division of the) same Court of 12 Nov. 1992, Johnny Walker. R.J.F., 3 (1993) No.469.
195. See further Advocate-General Léger's opinion, R.J.F., at paras. 123–127.
196. Idem, para.114.
197. He points out, though, that under “purely” French law, so to speak, liability of the legislature proper is not accepted: idem. para. 125.
198. idem.
199. For a discussion, see Brealy and Hoskins. idem. at pp.63–65.
200. For subsequent cases see idem. p.65.
201. See the writings of J. Schwarze who has strongly advocated the concept in relation to administrative law (a.o. in European Administrative Law (1992) discussed by I. Ward. “The Anomalous, the Wrong and the Unhappy: UK Administrative Law in a European Perspective” (1994) 45 N. Ireland Legal Q. 46. in relation to the decision in M. v. Home Office, mentioned further in the text).
202. See my N. Ireland Legal.
203. Jacobs, N. Ireland Legal, at p.983.
204. [1993] 3 W.L.R. 433.
205. [1993] 3 All E.R. 537.
206. See also in the same case Lord Donaldson, speaking in the Court of Appeal [1992] 4 All E.R. 139 referred to and discussed with further references in Ward.
207. All E.R. at pp.49 et seq.
208. Thus Steiner. All E.R.
209. In an earlier decision, of 20 Dec. 1990, the Spanish Tribunal Supremo Contensioso-administrativo had already considered, “in the wake of Factortame. that effective judicial protection must necessarily include a right to interim protection” (Barav. All E.R. at p.301 with references in n.169).
210. [1993] A.C. 70.
211. [1992] 3 W.L.R. 366.
212. See my W.L.R.
213. W.L.R., at p.983.
214. Thus Vranken in Algemeen Deel (“General Part”) in the famous (Dutch) Asser commentary (1995). p.132.
215. In their excellent book An Introduction to Comparative Law (2nd rev. edn, trans, by T. Weir. 1987), pp.2 et seq. esp. 11–27.
216. In the 3rd edn of the German (original) text of the book Einführung in die Rechts-vergleichung (1996), Zweigert and Kötz add a new function: the need to develop a common European civil law (pp.14 and 27–31).
217. See also Kötz, “Comparative Legal Research and Its Function in the Development of Harmonized Law. The European perspective”, in M. Jare-borg (Ed.). Towards Universal Law (1995). pp.21–36.
218. Vranken, Towards Universal Law, at p.140.
219. Idem, pp.124 et seq. There is, of course, a nuance: international, supranational and national rules, applicable within the same territory, belong to different (but intertwined) legal orders: national, regional and local (e.g. municipal) rules pertain to the same legal order but function, vertically, on a different level: common law and equity, civil and administrative rules function vertically on the same level but, horizontally, in different compartments.
220. Brasserie, Idem. at para.27. It is precisely for that reason, i.e. because both Community law liability systems have the same source, namely general principles common to the laws of the member States, that they have to be consistent with each other.
221. This requirement imposed by Community law (see e.g. idem, para.67) leads to homogeneity within the national legal order in that Community rights, in the event that they are less protected than national rights, must be protected in the same way as (pure) national rights. As explained above, further homogeneity is achieved when the protection of national rights, if less protected than Community rights, is upgraded to match the protection of Community rights for reasons of equal treatment under national law.
222. Idem, paras.67 and 89. It is on the basis of the second requirement that the Court orders national legal systems to allow compensation for breaches attributable to the legislature (paras.68 el seq.) and not to exclude totally loss of profit as a head of damage (para.87).
223. The judgment of the Court to be rendered soon in Dillenkofer (Idem) may, it is hoped, shed additional light.
224. It would be interesting to know whether the Court, in preparing its judgments in Brasserie. British Telecom, Hedley Lomas and Dillenkofer, has had the benefit (apart from the excellent overview given in the article cited Idem) of a comparative analysis of the legal systems of the member States relating to the important issues of tort liability raised in these cases, but seen in the wider context of the general laws on tort.