EUROPEAN UNION CASE LAW AS A SOURCE OF EUROPEAN PRIVATE LAW:
A Comparison with American Federal Common Law

The main underlying questions in this report are how economic and political integration influence legal integration in Europe compared to the United States and which role courts, especially a Supreme Court, can play in this process. The European Union and the United States of America are both examples of successful regional integration. Both can be qualified as divided power systems, in which (member) states transferred part of their sovereignty to a new entity: the federal United States of America and the autonomous legal order of the European Community. Given the US experience of more than 200 years, compared to a history of less than 50 years in regard to the EU, Europe no doubt can learn from the US.

European private law (private law common to the Member States of the European Union) is rapidly extending. The main sources are the European treaties, regulations and directives. This report examines to what degree case law, especially case law developed by the European Court of Justice, can be a further source of European private law.

The report starts by looking at case law relating to so-called federal common law, uniform law created by the US Supreme Court. After a development of almost one hundred years, the Court gave up its attempts to create a general body of federal commmon law. As such, federal common law still exists, though not as general law, and only in certain limited areas. The European Court of Justice follows the same path as the US Supreme Court finally did. Examples of ECJ case law which are discussed in this report are Member State liability and unjustified enrichtment.

1. Introduction

2. American federal common law

2.a Introduction

2.b Review of landmark cases

2.b.1 Early case law

2.b.2 Federal general common law: Swift v. Tyson (1842)

2.b.3 No federal general common law: Erie v. Tompkins (1938)

2.b.4 Examples of specific areas of federal common law and of areas where state law is chosen as the applicable federal rule

2.b.4.1 Conflict of laws: Klaxon v. Stentor (1941)

2.b.4.2 Commercial paper issued by the United States: Clearfield Trust Co. v. United States (1943)

2.b.4.3 Recovery of amounts because of injuries caused to a soldier: United States v. Standard Oil Co. of California (1947)

2.b.4.4 Collective bargaining agreements: Textile Workers Union of America v. Lincoln Mills of Alabama (1957)

2.b.4.5 Act of State Doctrine: Banco Nacional de Cuba v. Sabbatino (1964)

2.b.4.6 Mineral leases: Wallis v. Pan American Petroleum Corp. (1966)

2.b.4.7 Protection of constitutional rights: Bivens v. Six unknown named agents of the Federal Bureau of Narcotics (1971)

2.b.4.8 Corporation law: Burks v. Lasker (1979)

2.b.4.9 Right of contribution in antitrust cases: Texas Industries Inc. v. Radcliff Materials Inc. (1981)

2.b.4.10 Interstate trade (bill of lading): Southern Pacific Transportation Co. v. Commercial Metals Co. (1982)

2.b.4.11 Environmental law: Comprehensive Environmental Response, Compensation and Liability Act 1980 (CERCLA), Pennsylvania v. Union Gas Co. (1989)

2.b.5 The Uniform Commercial Code as federal common law:United States v. Wegematic Corp. (1966) and Kimbell Foods v. United States (1979)

3. European Union case law

3.a Introduction

3.b Protection of community rights by Member States

3.c State liability

3.c.1 Francovich (1991)

3.c.2 Dori (1994)

3.c.3 Brasserie du Pêcheur and Factortame (1996)

3.c.4 El Corte Inglés, Hedley Lomas and Dillenkofer (1996)

3.d Unjustified enrichment

3.d.1 San Giorgio (1983)

3.d.2 Comateb and Fantask (1997)

3.d.3 Dilexport (1999)

3.e State liability and unjustified enrichment combined: Metallgesellschaft (2001)

4. Comparing and concluding remarks

Notes