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Regulation 864/2007 on the law applicable to non-contractual obligations (Rome II)

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Directorate-General Justice and Consumers

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Unit A.1 Civil justice

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Background

  • Link between Brussels I - Rome I and Rome II
  • Negotiated since end of 1960‘s
  • Split Rome I – Rome II in 1980
  • Renewed consultations 1990‘s
  • COM proposal 2003
  • Adoption of Regulation 2007 – entry into force 11.01.09

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Objective and interpretation

  • Foreseeability as to applicable law independently of forum seised

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  • Prevent forum-shopping

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  • Create conditions for abolition of exequatur

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  • Less far-reaching solution than harmonisation of substantive law

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  • Autonomous interpretation

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Structure of Rome II

  • Scope

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  • Non-contractual obligations arising out of a tort or delict

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  • Non-contractual obligations arising out of an act other than a tort or delict

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  • Freedom of choice

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Scope

    • Situations involving a conflict of laws
    • Non-contractual obligations in civil and commercial matters
    • No revenue, customs or administrative matters
    • Exceptions

Obligations arising out of family relations, including maintenance

Obligations arising out of matrimonial property regimes and successions

Negotiable instruments

Company law - liability of company directors, members, auditors

Trusts

Nuclear damages

Violations of privacy and personal rights by the media

Evidence and procedure

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General rule for torts

  1. Law of country in which the damage occurs
  2. Exceptions:

Law of country of common habitual residence of parties

Law of country with which situation has a manifestly closer connection

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Special rules for specific torts

  1. Product liability
  2. Unfair competition and restrictions to competition
  3. Environmental damage
  4. Infringement of intellectual property rights
  5. Industrial action

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Rules for acts other than torts

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  1. Unjust enrichment
  2. Agency without authority (negotiorum gestio)
  3. Culpa in contrahendo

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Freedom of choice

  1. Choice of law possible after dispute arose
  2. Choice of law between businessmen possible also before dispute arises
  3. Choice must be expressed or demonstrated with reasonable certainty by circumstances of case
  4. No prejudice to application of national or Community mandatory rules

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