Consultation on a preliminary draft proposal for a council regulation on the law applicable to non-contractual obligations
With regard to applicable law for non-contractual obligations (so called "Rome II" project), the Commission launched on 3 May 2002 consultation on a preliminary draft proposal for a Council Regulation
It is no more than a Commission staff working paper for the sole purpose of consulting interested parties.
The Commission invites all interested parties to present duly substantiated comments on the various conflict rules set out in this document. More general comments will also be welcomed.
The Commission will take account of reactions to this Green Paper when preparing a proposal for a Community instrument.
Interested parties are invited to present their comments in writing no later than 15 September 2002 to the following address:
Directorate-General for Justice and Home Affairs
Unit A3, Judicial Cooperation in Civil Matters
Office: LX 46 5/152
Fax: (+32 2) 299.64.57
In the absence of instructions to the contrary from the author, replies and comments may be posted on the Commission's website.
TITLE 1 - SCOPE
Article 1 - Scope1. The rules of this Regulation shall apply to non-contractual obligations in any situation involving a choice between the laws of different countries.
2. They shall not apply to:
(a) non-contractual obligations arising out of a family relationship or a relationship deemed to be equivalent, including maintenance obligations to the extent that they are governed by specific rules;
(b) non-contractual obligations governed by the law of succession;
(c) obligations arising under bills of exchange, cheques and promissory notes and other negotiable instruments to the extent that the obligations under such other negotiable instruments arise out of their negotiable character;
(d) the personal liability of officers, of members, and of persons responsible for carrying out the statutory audits of accounting documents, for the obligations of a company or body incorporate or unincorporate;
(e) liability incurred in the exercise of public authority;
(f) non-contractual obligations among the settlers, trustees and beneficiaries of a trust;
(g) evidence and procedure, without prejudice to Article 17.
3. For the purposes of this Regulation, "Member State" means any Member State other than [the United Kingdom, Ireland or] Denmark.
Article 2 - Universal applicationAny law specified by this Regulation shall be applied whether or not it is the law of a Member State.
TITLE II - UNIFORM RULES
CHAPTER 1 - NON-CONTRACTUAL OBLIGATIONS DERIVING FROM A TORT OR DELICT
Article 3 - General rule1. The law applicable to a non-contractual obligation arising out of a tort or delict shall be the law of the country in which the loss is sustained, irrespective of the country or countries in which the harmful event occurred and irrespective of the country in which the indirect consequences of the harmful event are sustained, subject to paragraph 2.
2. Where the author of the tort or delict and the injured party have their habitual residence in the same country when the tort or delict is committed, the applicable law shall be the law of that country.
3. However, if it appears from the circumstances as a whole that there is a substantially closer connection with another country and there is no significant connection between the non-contractual obligation and the country whose law would be the applicable law under paragraphs 1 and 2, the law of that other country shall be applicable.
A substantially closer connection with another country may be based in particular on a pre-existing relationship between the parties, such as a contract that is linked to the tort or delict in question.
Article 4 - Areas not subject to territorial sovereignty1. The law applicable to a tort or delict occurring in areas not subject to the territorial sovereignty of a State shall be the law of the country in which the means of transport or the installation connected with the tort or delict is registered or whose flag it flies or with which it has similar connections.
2. If there is no connection with a specific country or if there is a connection with several countries, the applicable law shall be that of the country with which the case is most closely connected.
Article 5 - Product liability1. The law applicable to a non-contractual obligation arising out of damage caused by a product shall be that of the country in which the person directly sustaining the loss is habitually resident or has his main establishment, if that country is also the country where :
Article 6 - Unfair competition and other unfair practicesThe law applicable to a non-contractual obligation arising from unfair competition or other unfair practices shall be the law of the country where the unfair competition or other practice affects competitive relations or the collective interests of consumers.
Article 7 - DefamationThe law applicable to a non-contractual obligation arising from a violation of private or personal rights or from defamation shall be the law of the country where the victim is habitually resident at the time of the tort or delict.
Article 8 - Violation of the environmentThe law applicable to a non-contractual obligation arising from a violation of the environment shall be the law of the country in whose territory the damage occurs or threatens to occur.
Article 9 - Scope of the law applicable to non-contractual obligations arising out of a tort or delictThe law applicable to non-contractual obligations under Articles 3 to 8 and 11 of this Regulation shall govern:
1. the basis, conditions and extent of liability, including the determination of persons who are liable for acts performed by them;
2. the grounds for exemption from liability, any limitation of liability and any division of liability;
3. the existence and kinds of injury or damage for which compensation may be due;
4. the measures which a court has power to take under its procedural law to prevent or terminate injury or damage or to ensure the provision of compensation;
5. the measure of damages in so far as prescribed by law;
6. the question whether a right to compensation may be assigned or inherited;
7. persons entitled to compensation for damage sustained personally;
8. liability for the acts of another person;
9. the rules of prescription and limitation, including rules relating to the commencement of a period of prescription or limitation and the interruption and suspension of the period.
CHAPTER 2 - NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF AN ACT OTHER THAN A TORT OR DELICT
Article 10 - Determination of the applicable law1. If a non-contractual obligation arising out of an act other than a tort or delict concerns a relationship previously existing between the parties, it shall be governed by the law of the country whose law governs that relationship.
2. Subject to paragraph 1, a non-contractual obligation arising out of unjust enrichment shall be governed by the law of the country in which the enrichment takes place.
3. Subject to paragraph 1, a non-contractual obligation arising out of actions performed without due authority in connection with the affairs of another person shall be governed by the law of the country in which the action takes place.
4. Notwithstanding paragraphs 2 and 3 and subject to paragraph 1, if the parties have their habitual residence in the same country when the non-contractual obligation arises, the obligation shall be governed by the law of that country.
CHAPTER 3 - COMMON RULES APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF A TORT OR DELICT AND THOSE ARISING OUT OF AN ACT OTHER THAN A TORT OR DELICT
Article 11 - Freedom of choice1. The parties may choose the law applicable to a non-contractual obligation. The choice shall be made expressly and shall not adversely affect the rights of third parties.
2. If all the other elements of the situation at the time when the obligation arises are located in a country other than that whose law has been chosen, the choice of the parties shall not prejudice the application of rules of the law of that country which cannot be derogated from ("mandatory rules").
3. The choice of the parties of the applicable law shall not debar the application of mandatory provisions of Community law where the other elements of the situation were located in one of the Member States of the European Community at the time when the obligation came into being.
Article 12 - Mandatory rulesNothing in this Regulation shall restrict the application of the mandatory rules of the law of the forum irrespective of the law otherwise applicable to the non-contractual obligation.
Article 13 - Rules of conduct and safetyWhatever may be the applicable law, in determining liability account shall be taken of the rules of conduct and safety which were in force at the place and time of the act giving rise to non-contractual liability.
Article 14 - Direct action against the insurer of the person liable1. Persons who have suffered injury or damage shall have a right of direct action against the insurer of the person liable if they have such a right under the law applicable to the non-contractual obligation.
2. If this law does not provide any such right, it may be exercised if it is provided by the law governing the contract of insurance.
Article 15 - Subrogation1. Where a person ("the creditor") has a non-contractual claim upon another ("the debtor"), and a third person has a duty to satisfy the creditor, or has in fact satisfied the creditor in discharge of that duty, the law which governs the third person's duty to satisfy the creditor shall determine whether the third person is entitled to exercise against the debtor the rights which the creditor had against the debtor under the law governing their relationship in whole or in part.
2. The same rule shall apply where several persons are subject to the same claim and one of them has satisfied the creditor.
Article 16 - Formal validityA unilateral act intended to have legal effect and relating to a non-contractual obligation is formally valid if it satisfies the formal requirements of the law which governs the non-contractual obligation in question or the law of the country in which this act is done.
Article 17 - Burden of proof, etc1. The law governing non-contractual obligations under this Regulation applies to the extent that it contains, in matters of non-contractual obligations, rules which raise presumptions of law or determine the burden of proof.
2. Acts intended to have legal effect may be proved by any mode of proof recognised by the law of the forum or by any of the laws referred to in Article 16 under which that act is formally valid, provided that such mode of proof can be administered by the forum.
TITRE III - GENERAL PROVISIONS
Article 18 - Habitual residence1. For bodies corporate or unincorporate, the central administration shall be considered to be the habitual residence.
2. Where the act giving rise to the non-contractual obligation is perpetrated or suffered in the exercise of a trade or a profession, the principal place of business shall be considered to be the habitual residence. Where there is more than one place of business, the one at which the harmful event was perpetrated or suffered shall be considered to be the habitual residence.
Article 19 - Exclusion of renvoiThe application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law.
Article 20 - "Ordre public"The application of a rule of the law of any country specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy ("ordre public") of the forum.
Article 21 - No retrospective effectThis Regulation shall apply to non-contractual obligations deriving from acts occurring after its entry into force.
Article 22 - States with more than one legal system1. Where a State comprises several territorial units, each of which has its own rules of law in respect of non-contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Regulation.
2. A State within which different territorial units have their own rules of law in respect of non-contractual obligations shall not be bound to apply this Regulation to conflicts solely between the laws of such units.
Article 23 - Relationship with other provisions of Community law1. This Regulation shall not prejudice the application of provisions which are or will be contained in the Treaties establishing the European Communities or in acts of the institutions of the European Communities which:
Article 24 - Relationship with other provisions of Community lawThis Regulation shall not prejudice the application of international conventions to which the Member States are party when this Regulation is adopted and which, in relation to particular matters, lay down choice of law rules relating to non-contractual obligations.
TITLE IV - FINAL CLAUSES
Article 25This Regulation shall enter into force six months after its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.