THE APPLICABILITY OF REGULATIONS ROME I
AND II TO CROSS-BORDER CONTRACTS OF SALE
Closing CROBECO Conference
Brussels, 31st May 2012
Prof. Dr. Guillermo Palao Moreno
University of Valencia
TÍTULO DEL DOCUMENTO
CONTENTS:
I. CONTRACTS OF SALE AND REGULATION ROME I
II. CONTRACTS OF SALE AND REGULATION ROME II
III. THE CROBECO PROJECT AND REGULATIONS ROME I
AND II
IV. ASSESMENT
THE APPLICABILITY OF REGULATIONS ROME I AND II TO CROSS-BORDER CONTRACTS OF SALE
I. CONTRACTS OF SALE AND REGULATION ROME I (1)
●SALE AS A CONSUMER CONTRACT:
ART. 6 RR I
- CONTRACTS COVERED: ART. 6(1) RR I
B2C CONTRACTS, WHEN THE PROFESSIONAL EXERCISES HIS ACTIVITIES IN THE
COUNTRY WHERE THE CONSUMER HAS HIS HABITUAL RESIDENCE; OR DIRECTS
HIS ACTIVITIES TO THAT COUNTRY
- CONTRACTS EXCLUDED: ARTS. 6(4) RR I
CONTRACTS RELATING TO A RIGHT IN REM IN IMMOVABLE PROPERTY (OTHER
THAN TIMESHARING CONTRACTS)
- LAW APPLICABLE QUESTIONS: THE LAW OF THE HABITUAL RESIDENCE OF THE
CONSUMER AS THE LAW APPLICABLE TO THE CONTRACT IN THE ABSENCE OF
CHOICE AND AS THE LIMIT OF THE LAW CHOSEN BY THE PARTIES
THE APPLICABILITY OF REGULATIONS ROME I AND II TO CROSS-BORDER CONTRACTS OF SALE
I. CONTRACTS OF SALE AND REGULATION ROME I (2)
● SALE AS A NON CONSUMER (COMMERCIAL) CONTRACT:
PARTY AUTONOMY: ART. 3 RR I
APPLICABLE LAW IN THE ABSENCE OF CHOICE: ART 4 RR I
ART. 4(1)
→ CONTRACTS FOR THE SALE OF GOODS Art. 4(1)a RR I:
THE LAW OF THE COUNTRY WHERE THE SELLER HAS HIS HABITUAL RESIDENCE
→ CONTRACTS RELATING TO A RIGHT IN REM IN IMMOVABLE PROPERTY Art.
4(1)c:
THE LAW OF THE LAW WHERE THE PROPERTY IS SITUATED
ART. 4(3)
THE NON APPLICATION OF THE “ESCAPE CLAUSE” FOR THESE CASES
THE APPLICABILITY OF REGULATIONS ROME I AND II TO CROSS-BORDER CONTRACTS OF SALE
I. CONTRACTS OF SALE AND REGULATION ROME I (3)
● OTHER PROVISIONS OF INTEREST:
- OVERRIDING MANDATORY PROVISIONS: ART. 9 RR I → LEX FORI AND THE LAW
OF PERFORMANCE (LEX REI SITAE)
- EXISTENCE AND VALIDITY: Art. 10(1) RR I → LEX CONTRACTUS
- FORMAL VALIDITY: ART. 11(5) RR I → LEX REI SITAE
- PERFORMANCE AND THE APPLICATION OF THE LAW OF THE COUNTRY IN WHICH
PERFORMANCE TAKES PLACE: ART. 12(2) RR I → LEX REI SITAE
- PUBLIC POLICY OF THE FORUM: ART. 21 RR I → LEX FORI
● QUESTIONS EXCLUDED FORM THE REGULATION ROME I:
- LEGAL CAPACITY OF THE PARTIES → AUTONOMOUS PIL SYSTEMS (NATIONALITY/
DOMICILE)
- IN REM ISSUES (TRANSFER OF THE PROPERTY) → LEX REI SITAE
THE APPLICABILITY OF REGULATIONS ROME I AND II TO CROSS-BORDER CONTRACTS OF SALE
II. CONTRACTS OF SALE AND REGULATION ROME II (1)
● PARTY AUTONOMY:
ART 14
- B2C: CHOICE ONLY AFTER THE EVENT OCCURRED
- COMMERCIAL RELATIONSHIPS: CHOICE POSSIBLE BEFORE OR AFTER THE EVENT
OCCURRED
● APPLICABLE LAW IN THE ABSENCE OF CHOICE:
GENERAL RULE FOR TORTS/ DELICTS: ART 4
- THE APPLICATION OF THE LAW OF THE COMMON HABITUAL RESIDENCE OF THE
PARTIES: ART. 4(2); IF NOT
- THE ROLE OF THE LOCI DELICTI COMMISSSI: ART. 4(1)
- THE “ESCAPE CLAUSE” AND THE APPLICATION OF THE LAW OF THE UNDERLYING
CONTRACT: ART. 4(3)
THE APPLICABILITY OF REGULATIONS ROME I AND II TO CROSS-BORDER CONTRACTS OF SALE
II. CONTRACTS OF SALE AND REGULATION ROME II (2)
● APPLICABLE LAW IN THE ABSENCE OF CHOICE (CONTD.):
RULE FOR CULPA IN CONTRAHENDO ART. 12(1) → LEX CONTRACTUS
OTHER PROVISIONS OF INTEREST:
- OVERRIDING MANDATORY PROVISIONS: ART. 16 → LEX FORI
- RULES OF SAFETY AND CONDUCT: ART. 17
- PUBLIC POLICY OF THE FORUM: ART. 26 → LEX FORI
THE APPLICABILITY OF REGULATIONS ROME I AND II TO CROSS-BORDER CONTRACTS OF SALE
III. THE CROBECO PROJECT AND REGULATIONS ROME I AND II (1)
● THE CROBECO PROJECT:
- ELECTRONIC CROSS-BORDER CONVEYANCE PILOT PROJECT BETWEEN MS OF THE
EU
- TO FACILITATE CROSS-BORDER COOPERATION, TRANSACTIONS AND ACCESS TO
NATIONAL LAND REGISTRIES
- TO ENHANCE LEGAL CERTAINTY AND CONFIDENCE: BENEFITS FOR THE INTERNAL
MARKET
- THE RESPECT OF EXISTING LEGAL SYSTEMS
● CONTRACTUAL RELATIONSHIPS AT STAKE:
- THE SALE OF AN IMMOVABLE GOOD BETWEEN THE SELLER AND THE BUYER
(CROSS BORDER TRANSACTION)
- THE SERVICE CONTRACT BETWEEN THE PARTIES AND THE NOTARY (DOMESTIC
TRANSACTION)
-THE SERVICE CONTRACT BETWEEN THE NOTARY AND THE REGISTER (CROSSBORDER TRANSACTION)
THE APPLICABILITY OF REGULATIONS ROME I AND II TO CROSS-BORDER CONTRACTS OF SALE
III. THE CROBECO PROJECT AND REGULATIONS ROME I AND II (2)
 FISRT RELATIONSHIP:
THE CROSS-BORDER SALE OF AN INMOVABLE GOOD
● PARTIES MAY CHOOSE THE LAW APPLICABLE TO THEIR CONTRACT: ART.
3 RR I → COMMON NATIONAL/ HABITUAL RESIDENCE LAW
● THE BENEFITS OF THIS CHOICE (FOR THE PARTIES AND THE INTERNAL
MARKET):
- LEGAL CERTAINTY AND PREDICTABILITY
- AVOIDANCE OF THE CONSEQUENCES DERIVED FROM ART 4(1)c RR I
(THE LAW OF THE PLACE WHERE THE PROPERTY IS SITUATED)
● FORMAL ASPECTS ACCORDING TO THE LEX REI SITAE: ART. 11(5) RR I
● IN REM QUESTIONS GOVERNED BY THE LEX REI SITAE
THE APPLICABILITY OF REGULATIONS ROME I AND II TO CROSS-BORDER CONTRACTS OF SALE
III. THE CROBECO PROJECT AND REGULATIONS ROME I AND II (3)
 SECOND AND THIRD RELATIONSHIPS:
A SERVICE CONTRACT (ONLY THE THIRD IS A CROOS-BORDER RELATIONSHIP)
● PARTIES MAY CHOOSE THE LAW APPLICABLE TO THEIR CONTRACT: ART. 3 RR I
● APPLICABLE LAW IN THE ABSENCE OF CHOICE: ART 4 RR I
- THE LAW OF THE COUNTRY WHERE THE SERVICE PROVIDER HAS HIS HABITUAL
RESIDENCE
 NON-CONTRACTUAL RELATIONSHIPS AT STAKE:
PROTECTION AGAINST PUBLIC LIMITATIONS NOT ADMISSIBLE THROUGH THE
LAND REGISTER: CULPA IN CONTRAHENDO
● PARTIES MAY CHOOSE THE LAW APPLICABLE TO THE TORT → ART. 14 RR II
● APPLICABLE LAW IN THE ABSENCE OF CHOICE: LEX CONTRACTUS → ART. 12(1)
THE APPLICABILITY OF REGULATIONS ROME I AND II TO CROSS-BORDER CONTRACTS OF SALE
IV. ASSESMENT
 THE CONSISTENCE OF THE CROBECO MODEL CONTRACT WITH
EXISTING EUROPEAN PIL (REGULATIONS ROME I AND II)
 A BENEFITIAL MODEL FOR THE PARTIES AND THE INTERNAL MARKET
 THE CROBECO PROJECT AND THE RESPECT OF THE CURRENT
TRANSFER OF PROPERTY SYSTEMS OF THE MS WITHIN THE EU
THANK YOU¡
THANK YOU¡
guillermo.palao@uv.es