Co-ordination problems between European and

national private law: a Scenario to be avoided in the Europeanisation of Tenancy Law

Christoph U. Schmid, EUI1

I.Introduction

Up until now, tenancy law has almost entirely remained a national field of law and has not yet been affected by Europeanisation to a large extent. However, against the background of its further Europeanisation, it may be useful to take account of coordination problems which have happened in the interaction of other fields of European and national private law. To this end, this background paper examines the interplay of European and national law in the fields of product liability, which has been dealt with by the European Court of Justice in three more recent and (in)famous cases (II), and of real property and credit law (III), the field which comes closest to tenancy law in ECJ jurisprudence so far. These problems will be shown to be so severe, disrupting and disintegrative that they constitute a scenario to be absolutely avoided in the Europeanisation of further fields of private law. The concluding analysis on how such problems might be overcome leads to a clear result in respect of fields with strong national characteristics such as tenancy law: harmonisation should be abandoned altogether in favour of some loser form of European co-ordination (IV).

II. Product liability cases

1. Survey

The biggest problems in the interaction of the European product liability directive and national law have so far presented themselves in the area of concurrent liability regimes. The concurrency provision (hierarchical and material conflict-of-laws rule) in Art. 13 provides here that claims arising from contractual or non-contractual liability or a special liability rule existing at the date of publication of the directive remain unaffected. It emerges from the genesis and from the thirteenth recital that the last alternative, the “special liability rule”, means sectoral regimes, such as notably strict liability under the German Pharmaceuticals Act. The term contractual liability covers at least warranty liability; quasi-contractual liability regimes like culpa in contrahendo, which in other Member States are mostly regulated tortiously, ought on an autonomous interpretation of the directive better to be counted as non-contractual liability, which by Art. 13 may also apply alongside the directive. The ECJ has decided that non-contractual liability within the meaning of Art. 13 mainly means liability for fault in accordance with national law, but by contrast not the strict liability regulated in the directive. Against this background, the problem arises, for national strict liability regimes that do not transpose the directive nor can, like the

1 Dr. iur. (Munich), Ph.D. (EUI Florence), Scientific Co-ordinator of the European Private Law Forum and the tenancy law project.

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