The German Waterpenny case : a paradigm for the emerging common law of Europe

Europe is an area with many different jurisdictions. The attempts of the harmonizations of law have focussed on legislated law, but less on the free movement of legal professionals and on understanding of how law is being made in the different contituting parts of the European Union. In this context, it has been suggested to follow the American example and use economic analysis as a unifying bracket. In particular, law and economics as a subdiscipline of economics may provide such a unifying ingredient. The more European lawyers, atterneys, barristers, procecuters and judges as well as the rule drafting civil servants think in terms of law and economics concepts, the easier it will be for them to settle their conflicts, as sharp as those may be in particular cases. The German waterpenny case, which not only vindicates the Coase theorem as a conceivable tenet of legislation, but also deals with a problem recurring in every one of the Member States of the European Union, provides a good example for showing how this theory driven process of harmonization of European law could take place without infringing on the sovereignty of any one Member State.