Civil Wrongs Rome II

Overview

The conflicts of law rules for tort and other non-contractual matters have now been revised significantly as of January 2009 by European Union Regulation.  As with the judgments regulation, the European legislation applies directly in all States and has the direct force of law.

Parties have the freedom of choice to submit non-contractual obligations to their chosen law.  They may agree on the law that applies. This must be done by an agreement entered after the event which caused the damage or where all persons are pursuing a commercial activity by freely agreed negotiation before the event.  The choice must be expressed with reasonable certainty and demonstrated with reasonable certainty by the circumstances.

Where all the elements relevant to the situation at the time when the event giving rise to the damage occurred are in a particular country other than the one whose laws are chosen, then the mandatory laws of that former country apply and cannot be changed by agreement.  Where the elements relevant to the situation at the time when the event giving rise to the damage occurs are located in several Member States, the choice of law cannot be derived from mandatory EU rules.

Rome II

The Rome I regulation (Regulation (EC) No 593/2008) sets out the rules for determining the law applicable to contractual obligations in civil and commercial matters.
—The Rome III regulation (Regulation (EU) No 1259/2010) sets out the rules for determining the law applicable to divorce and legal separation.
—Contractual and non-contractual obligations.

Regulation (EC) No 864/2007 — the law applicable to non-contractual obligations (Rome II)

—It brings greater legal certainty as to the law applicable with respect to non-contractual obligations, in particular in cases of tort (a wrong under civil law) and delict (civil liability).
—It also ensures a reasonable balance between the interests of the person claimed to be liable and those of the person who has suffered damage.
—Any law specified by the regulation is applied whether or not it is the law of an EU country.
—The regulation applies to all EU countries except Denmark.As of 11 January 2009, except for Article 29 (which applies as of 11 July 2008).

General

The regulation does not replace national substantive laws (i.e. the laws that determine rights and obligations) on non-contractual obligations; it only determines which national substantive law applies.

The law applicable to a non-contractual obligation arising out of a tort/delict is:

• the law of the country where the damage occurs; or
• the law of the country where both parties were primarily living or had their main place of business when the damage occurred; or
• if the case is more closely connected with the law of another country, the law of that country.

Under certain conditions, the regulation also allows the parties to choose, by mutual agreement, which law applies to a non-contractual obligation.

Scope of the Applicable Law

The law applicable to non-contractual obligations governs in particular:

—the basis and extent of liability, including determining who may be held liable;
—the grounds for exemption from liability and the limitation or division of liability;
—the existence, nature and assessment of damage and the remedy claimed;
—the measures the court may take to prevent or terminate injury or damage and ensure compensation;
—the manner in which an obligation may be extinguished and the rules relating to prescription or limitation;
—the question as to whether the right to seek compensation can be transferred to someone else, including by inheritance;
—persons entitled to compensation for damage they have sustained;
—liability for the acts of another person.

There are specific rules for specific non-contractual obligations, for example product liability and intellectual property. Certain non-contractual obligations are excluded from the scope of the regulation. These include:

—revenue, customs and administrative matters;
—state liability;
—specific non-contractual obligations arising out of, for example, matrimonial property regimes and family relationships, nuclear damage or violations of privacy and rights relating to personality, including defamation.

The Regulation cannot restrict the mandatory rules of the place where the court, which hears matters, sits.  The safety and conduct rules of the place where the event took place must be taken into account in assessing the conduct of the person claimed to be liable.

Habitual Residence

The concept of habitual residence applies, as it applies under other EU Regulations on conflicts of laws.  The habitual residence of a person acting in the course of his business is where the principal place of business is.

The habitual residence of companies or bodies is their place of central administration.  Where the event arises from the operations of a branch agency or other establishment, this is treated as the habitual residence.

Civil Wrongs

In the case of torts or civil wrongs, the general rule that the law of the country where the damage occurs applies irrespective of where the event causing the damage takes place.  Where the claimant and the defendant have their habitual residence in the same country at the time when the damage occurs, that law will apply.

Where it is clear the civil wrong is manifestly more closely connected with another country, the law of that country will apply.  This may arise from a pre-existing relationship, such as a contract closely connected with the civil wrong in question.

In the case of product liability, the law of the country where the person sustained the damages has his habitual residence when the damage occurred applies, provided that the product was marketed in that country. If not, the law where the product was acquired if marketed in that country or the law of the country where the damage occurred if marketed in that country applies.

Damage and loss arising from environmental damages is determined by the law in relation to civil liability unless the person seeking compensation chooses to base his claim on the law of the country where the damage occurred.

ACTS

Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ L 199, 31.7.2007, pp. 40-49)

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, pp. 6-16). See consolidated version.