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Applicable law - Community law

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One day the courts in all the Member States of the European Union will apply the law of the same country to a given international situation.

The 1980 Rome Convention on the law applicable to contractual obligations harmonises the rules of conflict of laws applicable to contracts. Regulation (EC) 864/2007 (so called Rome II) sets the conflict of law rules for non-contractual obligations. The Community also plans to harmonise the conflict of law rules for divorce, matrimonial property regimes and successions and wills. The main objective of these measures is to ensure that a given legal situation is adjudicated under the substantive law of the same country, irrespective of the fact which court and in which EU Member State decides the matter, and thus contribute to establishing a genuine European area of justice.

Contractual Obligations

  • The 1980 Rome Convention entered into force on 1 April 1991 and complements the 1968 Brussels Convention (International law under Jurisdiction of the Courts). This Convention, like the Brussels I Regulation, which has replaced it since 1 March 2002, provides that in certain circumstances the courts of several Member States may have jurisdiction over a claim. This entails the risk that a party might seize the court of a particular country not because that court is best placed to settle the dispute (e.g. because evidence needed to adjudicate the dispute is concentrated there), but because this court will apply the substantive law most favourable to his claim - the phenomenon of forum shopping. By ensuring that the courts in all the European Union countries apply the same law to the same international contract, unification of the conflict of law rules reduces the risk of forum shopping within the Community.
  • The rules of the Rome Convention are in force in all Member States, including Denmark.
  • The central feature of the system established by the Convention is the principle of freedom of choice, whereby the parties are free to choose the law applicable to their contract. The freedom available to the parties is considerable: they may choose any law, even if it is unrelated to the subject of the contract, and they may also anytime change their original choice.
  • Where the parties have not determined which law shall be applicable to their contract, the contract will be governed by the law of the country with which it has the closest connection. The contract is presumed to be connected with the country where the party who is to provide the characteristic performance is habitually resident, which in general in practice means that a sales contract is governed by the law of the country where the seller is established and a contract for services is governed by the law of the country place where the service provider is established. But these are only presumptions and the court can choose to apply a different law if it finds that such law is more closely connected with the contract in question.
  • Like the Brussels I Regulation, the Rome Convention contains special rules to protect the weaker parties, such as consumers and employees. The mere fact that a contract specifies that a particular law is to be applicable shall not deprive a consumer or an employee of the protection of mandatory rules of the law normally applicable to them. Where the parties have made not provided otherwise in their contract, a consumer contract is governed by the law of the country where the consumer is habitually resident, and an employment contract is governed by the law of the country where the employee normally works or, if there is no such place, the country where is the establishment that employed him.
  • At the end of 2002 the European Commission presented a Green Paper on the question whether the Rome Convention 1980 should be converted into a Community instrument proper (regulation or directive) and modernised in the substance. In this context around 80 contributions have been received by the Commission.
  • As a result of the consultation process the European Commission adopted on 15 December 2005 a proposal for a Regulation of the Parliament and Council on the Law Applicable to Contractual Obligations (“Rome I”) whose intention is to modernise the rules of the Rome Convention and at the same time transform it into a Community legal instrument. On 17 June 2008, Regulation (EC) No 593/2008 of the European Parliament and of the Council on the law applicable to contractual obligations (Rome I) was adopted and will be applicable to contracts concluded after 17 December 2009.

Non-contractual Obligations

  • Regulation (EC) 864/2007 ("Rome II") harmonises the conflict of law rules for non-contractual obligations. It regulates the issues of determining the law applicable in international situations to questions related to non-contractual obligations, such as personal injury, product liability and environmental damage.
  • The adoption of this regulation was preceded by a wide public debate on the matter which included a public hearing held in Brussels on 7 January 2003 and a written consultation of interested circles on the basis of a preliminary draft proposal for a Council regulation on the law applicable to non-contractual obligations on 3 May 2002. About 80 contributions were received by the Commission which have been summarized in a synthesis document.

Maintenance

  • The Commission has introduced, as part of its proposal of 15 December 2005 for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations provisions on applicable law in relation maintenance obligations.
  • On 18 December 2008 the Council adopted Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. Under Article 15 of the Regulation the law applicable to maintenance obligations shall be determined in accordance with the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations in the Member States bound by that instrument. Thus, the rules of the Hague Protocol will also apply in the Community. The Commission has proposed on 23 February 2009 the conclusion by the Community of the Hague Protocol. The Protocol has to be applied in the Community on the date of application of the Regulation 4/2009, i.e. 18 June 2011.

Wills and Successions

  • The Commission as published on 1 March 2005 the Green Paper on Succession and Wills which contains aspects of conflict of laws related to this area of law.
  • The replies to the Green Paper were published on the website of Directorate General Justice, Freedom and Security.

Divorce

  • The Commission has launched work on applicable law in divorce matters. The Commission published on 14 March 2005 a Green Paper on applicable law and jurisdiction in divorce matters. It received approximately 65 replies. A public hearing was held on 6 December 2005.
  • As a result of the consultation process, the Commission presented on 17 July 2006 a proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters. The overall objective of this proposal is to provide a clear and comprehensive legal framework in matrimonial matters in the European Union and ensure adequate solutions to citizens in terms of legal certainty, predictability, flexibility and access to court.
  • The proposal introduces harmonised conflict-of-law rules in matters of divorce and legal separation to enable spouses to easily predict which law will apply to their matrimonial proceedings. The proposed rules are based in the first place on the choice of the spouses. The choice is confined to laws with which the marriage has a close connection. In the absence of choice, the applicable law is determined on the basis of a scale of connecting factors which will ensure that the matrimonial proceedings are governed by a legal order with which the marriage has a close connection.
  • The proposal seeks also to improve access to court in matrimonial proceedings. The possibility to choose the competent court in proceedings relating to divorce and legal separation ("prorogation") will enhance access to court for spouses who are of different nationalities. The rule on prorogation applies regardless of whether the couple lives in a Member State or in a third State. In addition, the proposal specifically addresses the need to ensure access to court for spouses of different nationalities who live in a third State.

Matrimonial Property

  • On 17 July 2006 the Commission adopted a Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition. This document launches a wide-ranging consultation exercise on the legal questions which arise in an international context as regards matrimonial property regimes and the property consequences of other forms of union. It presents the various aspects of the matter on which there is apparent need for the adoption of Community legislative rules

Reference documents:

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