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.
Parities have freedom of choice to submit non-contractual obligations to their chosen law. They may agree 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 derogate from mandatory EU rules.
The law applicable under the EU regulation covers the basis and extent of liability. This includes
- who is to be found liable,
- grounds for exemption,
- limitation and division of liability,
- the measurement and assessment of damages,
- persons entitled to claim,
- liability for the acts of another and
- rules as to limitations and extinguishment of rights to bring claims.
The Regulation cannot restrict the mandatory rules of the place where the court which hears matter, 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.
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 or agency or other establishment this is treated as the habitual residence.
In the case of torts or civil wrong 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 country where the damage occurred if marketed in that country, applies.
Where however it is clear that the wrong is manifestly connected with one country more closely than that above, the law of that country will apply. This may arise from a pre-existing relationship such as a contract connected with the wrong in question.
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.