Rome II Regulation
Conflict rules for torts
Rome II Regulation
• The Regulation defines:
• the conflict-of-law rules applicable to noncontractual 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 noncontractual 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)