Rome II Regulation Conflict rules for torts

Rome II Regulation The Regulation defines: the conflict-of-law rules applicable to non- contractual obligations in civil and commercial matters, including product liability, negotiorum gestio (acts relating to the affairs of another person) and non-contractual obligations arising out of dealings before the conclusion of a contract

Rome II Regulation Applicable from 11 January 2009 in all Member States except Denmark it does not attempt to harmonise the substantive law but only their conflict-of-law rules no matter where in the EU an action is brought, the rules determining the applicable law will always be the same.

Rome II Regulation As a general rule, and in order of priority, the law applicable is: –the law of the country where the damage occurs; –the law of the country where both parties were habitually resident when the damage occurred; –the law of the country with which the case is manifestly more closely connected than the other countries. It authorises the parties to choose, by mutual agreement, the law that will be applicable to their obligation. Specific rules are provided for certain domains, e.g. product liability and intellectual property Certain domains are excluded, notably revenue, customs and administrative matters, the liability of the State, and matrimonial and family relationships.

Rome II Regulation - Defining the applicable law: unifying conflict-of-law rules in the EU The law applicable to non-contractual obligations under this Regulation governs: the basis and extent of liability, including the persons liable; the grounds for exemption from liability; the limitation or division of liability; the existence, nature and assessment of damage and the remedy claimed; the measures that the court may take to prevent or end injury or damage and provide for compensation (within the limits of national procedural law); the transferability of the right to seek compensation, including by succession; the persons entitled to compensation for damage; liability for the acts of another person; extinction of obligations, and the rules relating to prescription or limitation based on a period of time.

Rome II Regulation – applicable law As a general rule: the law applicable to a non-contractual obligation arising out of a tort/delict: the law of the country in which the damage occurs, regardless of the country or countries in which indirect consequences of the event may occur Babcock v. Jackson

Rome II Regulation – applicable law 2 Two major exceptions: (1) When the defendant and the claimant are both habitually resident in the same country at the time when the damage occurs, it is the law of that country that applies. (2) When the event is manifestly more closely connected with a different country (e.g. deriving from a pre-existing relation between the parties, such as a contract), it is the law of that country that applies.

Rome II Regulation The Regulation is of universal application: that is, the law specified is applied whether or not it is the law of a Member State (erga omnes principle). (same as Hague Conventions)

Rome II Regulation – choice of law Choice of applicable law: by common agreement after the event giving rise to the damage or between traders, by an agreement before the event giving rise to the damage. The choice must be explicit or evident from the circumstances, and must not prejudice the rights of any third party. The choice does not apply to infringements of intellectual property a The choice cannot be invoked when all the elements relevant to the situation relate to a country other than the one chosen. EU law overrides the law of a non-EU country, chosen by the parties, when all the elements of the situation are located in one or more EU Member States.

Rome II Regulation For unjust enrichment, including undue payments, the applicable law is that governing a pre-existing relation between the parties (e.g. a contract or a harmful event closely connected with the unjust enrichment) If there is no such relation, but both parties were habitually resident in the same country where the event giving rise to the unjust enrichment occurred, it is the law of that country that applies. Failing that, the applicable law is that of the country in which the unjust enrichment occurred or, if the event is manifestly more closely linked with another country, the law of that other country.

Rome II Regulation As regards culpa in contrahendo (non-contractual obligations arising out of dealings before the conclusion of a contract), the applicable law is that governing the contract The concept of culpa in contrahendo is autonomous for the purposes of the Regulation, and should not necessarily be interpreted in the sense of national law. If the law cannot be determined, the applicable law is that of the country in which the damage occurred, or failing that the law of the country where both parties are habitually resident or of the country most closely associated with the event.

Rome II Regulation The Regulation makes specific provision for certain domains: Product liability The law of the habitual residence of the person sustaining the damage at the time the damage occurred, if the product is marketed in that country; otherwise, the law of the country in which the product was purchased; otherwise, the law of the country in which the damage occurred, if the product is marketed there.

Rome II Regulation Unfair competition and acts restricting free competition. For non-contractual obligations resulting from an act of unfair competition, the applicable law is that of the country in which competition or the collective interests of consumers are or are likely to be affected For non-contractual obligations resulting from an act restricting free competition, the applicable law is that of the country in which the market is or is likely to be affected. The law applicable in these cases cannot be derogated from by an agreement on choice of law.

Rome II Regulation Environmental damage. The general rule applies, unless the claimant chooses to base his action on the law of the Member State in which the harmful event occurred. Infringement of intellectual property rights. The law applicable to a non-contractual obligation resulting from the infringement of an intellectual property right is that of the country for which the protection was sought. There can be no derogation to this provision. Industrial action. The law applicable to a non- contractual obligation relating to the liability of a worker, employer or professional association resulting from damage caused by a strike or lock-out, whether in progress or after the event, is that of the country in which the industrial action is taken.

Rome II Regulation - Matters excluded This Regulation does not apply to revenue, customs or administrative matters, to the liability of the State, or to non-contractual obligations arising out of: family or similar relations, incl. obligations of maintenance; matrimonial property regimes and similar, wills and successions; bills of exchange, cheques, promissory notes and other instruments; the law of companies, in relation to e.g. their creation and legal capacity, liability of members, etc.; relations between the settlers, trustees and beneficiaries of a trust created voluntarily; nuclear damage; violations of privacy and rights relating to personality

Rome II Regulation Relationship with existing international conventions The Regulation does not affect the application of international conventions governing non-contractual obligations to which one or more Member States are parties (Hague Convention on Traffic Accidents)