Description of the Project
3. Relevant Scientific Literature
It is a well-known fact that in the Area of International Law several texts
acknowledge the necessity of awarding special protection to children. Thus
Art. 25.2 of the Universal Declaration of Human Rights,
provides that “motherhood and childhood are entitled to special care and
assistance. All children, whether born in or out of wedlock, shall enjoy
the same social protection”. The
Declaration of the Rights of the Child,
acknowledges in its Preamble that "the child, by reason of his physical and
mental immaturity, needs special safeguards and care, including appropriate
legal protection, before as well as after birth" and adds in its Principle 8
that “the child shall in all circumstances be among the first to receive
protection and relief”.
The European Constitutions enacted around the second half of the 20th
Century and afterwards have also considered that children deserve a special
protection. Thus, for instance, the
Spanish Constitution 1978 (CE-1978),
besides ensuring that “children shall enjoy the protection provided in
international agreements which safeguard their rights” (Art. 39.4)
establishes that “public authorities shall assure the complete protection of
children…” (Art. 39.2) and that “parents must provide their children, born
in or out of wedlock, with assistance of every kind during the time they are
minors and in other cases where it is legally proper” (art. 39.3).
In Germany, the Federal Constitution confers upon the governments the power
to regulate the freedom of press and speech in order to protect children
(Art. 5 para 2 Grundgesetz of 23rd May 1949, BGBl. 1949 p. 1).
Though limited in scope, this provision is widely regarded as a basis for
governmental intervention in any area of law and of regulation of activities
otherwise legal and protected for the purpose of protecting children in
modern society. Even more important, governments are positively bound to
take measures aimed at protecting the family and at supporting parents in
their efforts to provide their children with an education (Art. 6 para 1, 2
Grundgesetz). Finally, the Federal Constitutional Court, in a famous
decision, has held that the fundamental rights guaranteed by the Federal
Constitution must be taken into account in framing rules of tortious
liability and applying such rules to minors.
In Austria the constitutional law does not emphasise the protection of
children, but the old Civil Code from 1811 stresses that minors and even
unborn children enjoy the special protection of the law (§§ 21, 22 ABGB).
The national legislators have developed this protection in the different
areas of law. However, in the area of tort law the protection of children in
Europe is so far patchy and among European legal writing it has not been
dealt with in a comprehensive way.
In the current tort law studies the problems that affect children either as
tortfeasors or as victims are not treated as the two sides of the same coin,
but as part of the general analysis of the problems involved in the
different areas of tort law (capacity; fault liability; liability of the
parents, wards, teaching institutions; road traffic liability; contributory
negligence, etc.) without a unifying thread.
The unifying thread of the problems related to children in tort law should
be the general principle of protection of children generally acknowledged by
international instruments and national provisions and by the necessity of
striking a balance between this need of protection, on the one side, and the
need either to protect victims when children are tortfeasors or not to
impose too heavy burdens on tortfeasors when children are the victims. This
comprehensive treatment is even more urgent if we bear in mind that from the
last two decades several European legal systems have started to pass
specific rules related to children in different areas of tort law and that
from an European perspective the situation of children in tort law is still
rather disparate. Moreover, the development of the Internet society creates
new possibilities for children to be both wrongdoers and victims.
It is also well known that in the last decades the European perspective in
private law has proven very productive. Not only for the benefits that the
comparative method can bring to the national legislators in their need to
adapt the rules to the progress of society but also for the tools that it
provides to the understanding of the different European legal cultures and
to laying the foundations for an approximation of the European legal
The members of the European team that submits this Project have already been
involved during the last years in different projects that aim to lay these
foundations in the area of tort law. Some members of the team (Prof. Koziol,Vienna;Prof. Comandé,Pisa;Prof. Martín-Casals, Girona) belong to the
“European Group on Tort Law” which endeavours to draft a set of
Principles on Tort Law.
Prof. Koziol is also the director of the
European Centre of Tort and
(Vienna), a Centre that does research on tort law in a
wide range of countries and pays special attention to major developments;
furthermore, Prof. Koziol is a member of the commission which is drafting a
new Austrian law of damages.
Prof. Comandé is actively involved in several international research
projects involving EU scholars and non EU ones. Having studied in the USA he
developed with prominent scholars in the highest ranked Universities in that
Prof. Wagner (Bonn) has also a long standing in the area of tort law and
comparative law. He is co-author of one of the leading German books on tort
law and has worked on projects for the reform of tort law in Germany in the
past, such as the effort of the German Ministry of Environmental Protection
to establish a system of collective enterprise liability with respect to
toxic torts and other damages with environmental ramifications. Here, the
idea was to extend the well-known system of workers compensation schemes to
the field of environmental policy. Over the last decade, a major focus of
his research has involved the interaction of insurance schemes, both public
and private, with traditional tort law.
This Project will be coordinated by the European Centre of Tort and
Insurance Law (Vienna, Austria) and the
Research Group of European
Private Law (University of Girona, Spain) and will take into account the
legislation in force in the four European countries involved, the decisions
of their courts and their legal literature. It will also take into account
the guidelines provided by drafts that, at different stages of evolution,
are being discussed now, such as the German Zweites Gesetz zur Änderung
schadensersatzrechtlicher Vorschriften (as of 19 February 2001)
and the Austrian draft of a new law of damages. Occasionally it will also
refer to the Swiss Draft of the Bundesgesetz über
die Revision und Vereinheitlichung des Haftpflichtrechts (Haftpflichtgesetz)
and to legislation, courts decisions and legal literature of other European
As the Austrian Ministry of Justice has started renewing the whole law of
damages, this Project will be an important groundwork for the new draft.
Prof. Koziol is member of the Drafting Commission.
In Germany, research efforts aimed at establishing a basis for further
approximation or even harmonization of the several European systems of tort
law by way of comparative legal research enjoy considerable support by
public institutions, such as the German Research Foundation (Deutsche Forschungsgemeinschaft).
Moreover, considerable research has been conducted in the fields of
psychology and medicine in an attempt to establish a factual basis
concerning the mental and physical capabilities of children.
In Italy this project is framed in a long line of research in the field of
tort law pursued at the Scuola Superiore S. Anna. In addition to the
research tasks of the European Group on Tort Law, comparative
research and teaching on tort law (e.g. medical malpractice and information
society) is currently performed in interdisciplinary teams. Teams are
participated by lawyers, medical doctors, engineers, and economists.
A special effort in the participation to these project will be devoted to
the understanding of possible needed changes in legal rules for the
protection of children (as potential victims) or from their tortious acts
in the information society. The leading criterion of analysis will be the
protection of human dignity in an information environment that is not
necessarily a “friendly” or useful one.
In Spain this Project is related to the research Project “La elaboración
de los ‘European Principles on Tort Law’ (EPTL). Aportaciones desde el
Derecho de daños español” (SEC 2000-0579) [the Drafting of the European
Principles of Tort Law: Contributions form Spanish Tort Law] awarded by the
Spanish Ministry of Science and Technology for the periods 2000-2002. The
main aim of the Project is to contribute, from the point of view of Spanish
Tort Law, to the preparation and drafting of a set of
European Principles of
Tort Law. The preparation of the
started in 1993 by the
setting up of the European Group on Tort Law, to which Prof. Martín-Casals
joined in 1998. As stated before, other applicants of this Project (Prof.
Koziol and Prof. Comandé) are also members of the
European Group on Tort Law.