The German Waterpenny Case: A Paradigm for the Emerging Common Law of Europe

Abstract

Sometimes, arcane cases come before high courts and require a specific ruling. The German waterpenny case^l is such an instance. At stake was not just the issue of who ultimately would have to bear the costs of using artificial fertilizer that may contaminate ground water. Rather, in settling this issue the court faced a decision space of uncertainty and had to settle a basic issue on which, in the future, an entire system of rulings settling liability claims would have to rely. The decision space was one of uncertainty and not risk² because neither the set of conceivable outcomes nor the attributable probabilities can be known beforehand. Moreso. Even the legal system in which the ruling ultimately would serve as a precedent can no longer be known, as the German constitutional court just as other highest courts within the European Union now operates in the context of European harmonization efforts that link the different legal systems of European Member States — as well as those aspiring to become members — one to another. There is substantial pressure to allow for a convergence of these legal systems, when by architecture and in-built procedures they operate according to different rythms. Ultimately, common features and traits will become apparant, and these will be principles that may not have guided any single decisions of courts or other rule makers, but they may be able to further understanding of the decisions and rules as if they had guided them.