Common position 22/2006 adopted on 25 september 2006 with a view to adopting regulation on the law applicable to non-contractual obligations (rome II)

COMMON POSITION (EC) No 22/2006

adopted by the Council on 25 September 2006

with a view to adopting Regulation (EC) No .../... of the European Parliament and of the Council

of ... on the law applicable to non-contractual obligations (ROME II)

(2006/C 289 E/04)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO- (5) The Hague Programme (4), adopted by the European

PEAN UNION, Council on 5 November 2004, called on work to be

pursued actively on the rules of conflict of laws

regarding non-contractual obligations (`Rome II').

Having regard to the Treaty establishing the European Com-

munity, and in particular Articles 61(c) and 67 thereof,

(6) The proper functioning of the internal market creates a

Having regard to the proposal from the Commission, need, in order to improve the predictability of the

outcome of litigation, certainty as to the law applicable

Having regard to the opinion of the European Economic and and the free movement of judgments, for the conflict-of-

Social Committee ( law rules in the Member States to designate the same

1), national law irrespective of the country of the court in

which an action is brought.

Acting in accordance with the procedure laid down in

Article 251 of the Treaty (2),

(7) The material scope and the provisions of this Regulation

Whereas: should be consistent with Council Regulation (EC)

No 44/2001 of 22 December 2000 on jurisdiction and

the recognition and enforcement of judgments in civil

(1) The Community has set itself the objective of main- and commercial matters (5) (`Brussels I') and the

taining and developing an area of freedom, security and Rome Convention on the law applicable to contractual

justice. For the progressive establishment of such an obligations (6).

area, the Community is to adopt measures relating to

judicial cooperation in civil matters with a cross-border

impact to the extent necessary for the proper func-

tioning of the internal market. (8) This Regulation should apply irrespective of the nature

of the court or tribunal seised.

(2) According to Article 65(b) of the Treaty, these measures

are to include those promoting the compatibility of the

rules applicable in the Member States concerning the (9) Claims arising out of `acta iure imperii' should include

conflict of laws and of jurisdiction. claims against officials who act on behalf of the State

and liability for acts of public authorities, including liabi-

lity of publicly appointed office-holders. Therefore, these

(3) The European Council meeting in Tampere on 15 and matters should be excluded from the scope of this Regu-

16 October 1999 endorsed the principle of mutual lation.

recognition of judgments and other decisions of judicial

authorities as the cornerstone of judicial cooperation in

civil matters and invited the Council and the Commis-

sion to adopt a programme of measures to implement (10) Family relationships should cover parentage, marriage,

the principle of mutual recognition. affinity and collateral relatives. The reference in

Article 1(2) to relationships having comparable effects to

marriage and other family relationships should be inter-

(4) On 30 November 2000, the Council adopted a joint preted in accordance with the law of the Member State

Commission and Council programme of measures for in which the court is seised.

implementation of the principle of mutual recognition

of decisions in civil and commercial matters (3). The

programme identifies measures relating to the harmoni-

sation of conflict-of-law rules as those facilitating the (11) The concept of a non-contractual obligation varies from

mutual recognition of judgments. one Member State to another. Therefore for the purposes

of this Regulation non-contractual obligation should be

understood as an autonomous concept.

(1) OJ C 241, 28.9.2004, p. 1.

(2) Opinion of the European Parliament of 6 July 2005 (OJ C 157 E,

6.7.2006, p. 371), Council Common Position of 25 September (4) OJ C 53, 3.3.2005, p. 1.

2006 and Position of the European Parliament of ... (not yet (5) OJ L 12, 16.1.2001, p. 1. Regulation as last amended by Commis-

published in the Official Journal). sion Regulation (EC) No 2245/2004 (OJ L 381, 28.12.2004, p. 10).

(3) OJ C 12, 15.1.2001, p. 1. (6) OJ C 27, 26.1.1998, p. 34.

28.11.2006 EN Official Journal of the European Union C 289E/69

(12) Uniform rules applied irrespective of the law they desig- possibility of a manifestly closer connection to another

nate may avert the risk of distortions of competition country.

between Community litigants.

(19) The special rule in Article 6 is not an exception to the

(13) The principle of the lex loci delicti commissi is the basic general rule in Article 4(1) but rather a clarification of it.

solution for non-contractual obligations in virtually all In matters of unfair competition, the conflict rule should

the Member States, but the practical application of the protect competitors, consumers and the general public

principle where the component factors of the case are and ensure that the market economy functions properly.

spread over several countries varies. This situation The connection to the law of the country where compe-

engenders uncertainty as to the law applicable. titive relations or the collective interests of consumers

are, or are likely to be, affected generally satisfies these

objectives.

(14) Uniform rules should enhance the foreseeability of court

decisions and ensure a reasonable balance between the

interests of the person claimed to be liable and the (20) The non-contractual obligations arising out of restric-

person who has sustained damage. A connection with tions of competition in Article 6(3) should cover infrin-

the country where the direct damage occurred (lex loci gements of both national and Community competition

damni) strikes a fair balance between the interests of the law. The law applicable to such non-contractual obliga-

person claimed to be liable and the person sustaining tions should be the law of the country on whose market

the damage, and also reflects the modern approach to the restriction has, or is likely to have, effect, provided

civil liability and the development of systems of strict that the effect is direct and substantial. Where the

liability. damage is sustained in more than one country, the appli-

cation of the law of any of those countries should be

limited to the damage which occurred in that country.

(15) The law applicable should be determined on the basis of

where the damage occurs, regardless of the country or

countries in which the indirect consequences could (21) Examples of cases covered by Article 6(3) include prohi-

occur. Accordingly, in cases of personal injury or bitions on agreements between undertakings, decisions

damage to property, the country in which the damage by associations of undertakings and concerted practices

occurs should be the country where the injury was which may affect trade between Member States and

sustained or the property was damaged respectively. which have as their object or effect the prevention,

restriction or distortion of competition within a Member

State or within the internal market, as well as prohibi-

tions on the abuse of a dominant position within a

(16) The general rule in this Regulation should be the `lex loci Member State or within the internal market.

damni' provided for in Article 4(1). Article 4(2) should

be seen as an exception to this general principle, creating

a special connection where the parties have their habi-

tual residence in the same country. Article 4(3) should (22) Regarding environmental damage, Article 174 of the

be understood as an `escape clause' from Article 4(1) and Treaty, which provides that there should be a high level

(2), where it is clear from all the circumstances of the of protection based on the precautionary principle and

case that the tort/delict is manifestly more closely the principle that preventive action should be taken, the

connected with another country. principle of priority for corrective action at source and

the principle that the polluter pays, fully justifies the use

of the principle of discriminating in favour of the person

sustaining the damage. The question of when the person

(17) Specific rules should be laid down for special torts/ seeking compensation can make the choice of the law

delicts where the general rule does not allow a reason- applicable should be determined in accordance with the

able balance to be struck between the interests at stake. law of the Member State in which the court is seised.

(18) The conflict rule in matters of product liability should (23) Regarding infringements of intellectual property rights,

meet the objectives of fairly spreading the risks inherent the universally acknowledged principle of the lex loci

in a modern high-technology society, protecting consu- protectionis should be preserved. For the purposes of this

mers' health, stimulating innovation, securing undis- Regulation, the term `intellectual property rights' should

torted competition and facilitating trade. Creation of a be interpreted as meaning, for instance, copyright,

cascade system of connecting factors, together with a related rights, the sui generis right for the protection of

foreseeability clause, is a balanced solution in regard to databases and industrial property rights.

these objectives. The first element to be taken into

account is the law of the country in which the person

sustaining the damage had his or her habitual residence

when the damage occurred, if the product was marketed (24) The exact concept of industrial action, such as strike

in that country. The other elements of the cascade are action or lock-out, varies from one Member State to

triggered if the product was not marketed in that another and is governed by each Member State's internal

country, without prejudice to Article 4(2) and to the rules. Therefore, this Regulation assumes as a general

C 289E/70 EN Official Journal of the European Union 28.11.2006

principle that the law of the country where the industrial contribute to the proper functioning of the internal

action was taken should apply, with the aim of market insofar as they cannot be applied in conjunction

protecting the rights and obligations of workers and with the law designated by the rules of this Regulation.

employers.

(32) Respect for international commitments entered into by

the Member States means that this Regulation should

(25) The special rule on industrial action in Article 9 is

without prejudice to the conditions relating to the exer- not affect international conventions to which one or

cise of such action in accordance with national law and more Member States are parties at the time this Regu-

without prejudice to the legal status of trade unions or lation is adopted. To make the rules more accessible, the

of the representative organisations of workers as Commission should publish the list of the relevant

provided for in the law of the Member States. conventions in the Official Journal of the European

Union on the basis of information supplied by the

Member States.

(26) Provision should be made for special rules where

damage is caused by an act other than a tort/delict, such (33) The Commission will make a proposal to the European

as unjust enrichment, negotiorum gestio and culpa in Parliament and the Council concerning the procedures

contrahendo. and conditions according to which Member States would

be entitled to negotiate and conclude on their own

behalf agreements with third countries in individual and

(27) Culpa in contrahendo for the purposes of this Regulation exceptional cases, concerning sectoral matters,

is an autonomous concept and should not necessarily be containing provisions on the law applicable to non-

interpreted within the meaning of national law. It should contractual obligations.

include the violation of the duty of disclosure and the

breakdown of contractual negotiations. Article 12 covers (34) Since the objective of this Regulation cannot be suffi-

only non-contractual obligations presenting a direct link ciently achieved by the Member States, and can there-

with the dealings prior to the conclusion of a contract. fore, by reason of the scale and effects of the Regulation,

This means that if, while a contract is being negotiated, be better achieved at Community level, the Community

a person suffers personal injury, Article 4 or other rele- may adopt measures, in accordance with the principle of

vant provisions of this Regulation should apply. subsidiarity set out in Article 5 of the Treaty. In accord-

ance with the principle of proportionality set out in that

Article, this Regulation does not go beyond what is

(28) To respect the intentions of the parties and to enhance necessary to attain that objective.

legal certainty, the parties should be allowed to make an

express choice as to the law applicable to a non-contrac-

tual obligation. Protection should be given to weaker (35) The United Kingdom and Ireland, in accordance with

parties by imposing certain conditions on the choice. Article 3 of the Protocol on the position of the United

Kingdom and Ireland annexed to the Treaty on European

Union and the Treaty establishing the European Com-

(29) Considerations of public interest justify giving the courts munity, have given notice of their wish to take part in

of the Member States the possibility, in exceptional the adoption and application of this Regulation.

circumstances, of applying exceptions based on public

policy and overriding mandatory provisions. (36) In accordance with Articles 1 and 2 of the Protocol on

the position of Denmark, annexed to the Treaty on

European Union and the Treaty establishing the Euro-

(30) In order to strike a reasonable balance between the pean Community, Denmark does not take part in the

parties, account must be taken, in so far as appropriate, adoption of this Regulation, and is not bound by it or

of the rules of safety and conduct in operation in the subject to its application,

country in which the harmful act was committed, even

where the non-contractual obligation is governed by the

law of another country. The term `rules of safety and

conduct' should be interpreted as referring to all regula-

tions having any relation to safety and conduct,

including, for example, road safety rules in the case of HAVE ADOPTED THIS REGULATION:

an accident.

CHAPTER I

(31) A situation where conflict-of-law rules are dispersed

among several instruments and where there are differ-

ences between those rules should be avoided. This Regu- SCOPE

lation, however, does not exclude the possibility of inclu-

sion of conflict-of-law rules relating to non-contractual Article 1

obligations in provisions of Community law with regard

to particular matters. Material scope

This Regulation should not prejudice the application of 1. This Regulation shall apply, in situations involving a

other instruments laying down provisions designed to conflict of laws, to non-contractual obligations in civil and

28.11.2006 EN Official Journal of the European Union C 289E/71

commercial matters. It shall not apply, in particular, to (a) an event giving rise to damage shall include events giving

revenue, customs or administrative matters or the liability of rise to damage that are likely to occur; and

the State for acts and omissions in the exercise of State

authority (`acta iure imperii'). (b) damage shall include damage that is likely to occur.

2. The following shall be excluded from the scope of this

Regulation: Article 3

(a) non-contractual obligations arising out of family relation- Universal application

ships and relationships deemed by the law applicable to

such relationships to have comparable effects including Any law specified by this Regulation shall be applied whether

maintenance obligations; or not it is the law of a Member State.

(b) non-contractual obligations arising out of matrimonial

property regimes, property regimes of relationships deemed

by the law applicable to such relationships to have compar- CHAPTER II

able effects to marriage, and wills and succession;

TORTS/DELICTS

cheques and promissory notes and other negotiable instru- Article 4

ments to the extent that the obligations under such other

negotiable instruments arise out of their negotiable char-

acter; General rule

(d) non-contractual obligations arising out of the law of 1. Unless otherwise provided for in this Regulation, the law

companies and other bodies corporate or unincorporated applicable to a non-contractual obligation arising out of a tort/

regarding matters such as the creation, by registration or delict shall be the law of the country in which the damage

otherwise, legal capacity, internal organisation or winding occurs irrespective of the country in which the event giving

up of companies and other bodies corporate or unincorpo- rise to the damage occurred and irrespective of the country or

rated, the personal liability of officers and members as such countries in which the indirect consequences of that event

for the obligations of the company or body and the occur.

personal liability of auditors to a company or to its

members in the statutory audits of accounting documents; 2. However, where the person claimed to be liable and the

person sustaining damage both have their habitual residence in

(e) non-contractual obligations arising out of the relations the same country at the time when the damage occurs, the law

between the settlors, trustees and beneficiaries of a trust of that country shall apply.

created voluntarily;

3. Where it is clear from all the circumstances of the case

(f) non-contractual obligations arising out of nuclear damage; that the tort/delict is manifestly more closely connected with a

country other than that indicated in paragraphs 1 or 2, the law

(g) non-contractual obligations arising out of violations of of that other country shall apply. A manifestly closer connec-

privacy and rights relating to personality, including defama- tion with another country might be based in particular on a

tion. pre-existing relationship between the parties, such as a

contract, that is closely connected with the tort/delict in ques-

3. This Regulation shall not apply to evidence and proce- tion.

dure, without prejudice to Articles 21 and 22.

4. For the purposes of this Regulation, `Member State' shall Article 5

mean any Member State other than Denmark.

Product liability

Article 2 1. Without prejudice to Article 4(2), the law applicable to a

non-contractual obligation arising out of damage caused by a

product shall be:

Non-contractual obligations

(a) the law of the country in which the person sustaining the

1. For the purposes of this Regulation, damage shall cover damage had his or her habitual residence when the damage

any consequence arising out of tort/delict, unjust enrichment, occurred, if the product was marketed in that country; or,

negotiorum gestio or culpa in contrahendo. failing that,

(b) the law of the country in which the product was acquired,

2. This Regulation shall apply also to non-contractual obli- if the product was marketed in that country; or, failing

gations that are likely to arise. that,

3. Any reference in this Regulation to: the product was marketed in that country.

C 289E/72 EN Official Journal of the European Union 28.11.2006

However, the law applicable shall be the law of the country in governed by the relevant Community instrument, be the law of

which the person claimed to be liable is habitually resident if the country in which the act of infringement was committed.

he or she could not reasonably foresee the marketing of the

product, or a product of the same type, in the country the law

of which is applicable under (a), (b) or (c). 3. The law applicable under this Article may not be dero-

gated from by an agreement pursuant to Article 14.

2. Where it is clear from all the circumstances of the case

that the tort/delict is manifestly more closely connected with a

country other than that indicated in paragraph 1, the law of Article 9

that other country shall apply. A manifestly closer connection

with another country might be based in particular on a pre- Industrial action

existing relationship between the parties, such as a contract,

that is closely connected with the tort/delict in question. Without prejudice to Article 4(2), the law applicable to a non-

contractual obligation in respect of the liability of a person in

the capacity of a worker or an employer or the organisations

Article 6 representing their professional interests for damages caused by

an industrial action, pending or carried out, shall be the law of

the country where the action is to be, or has been, taken.

Unfair competition and acts restricting free competition

1. The law applicable to a non-contractual obligation arising

out of an act of unfair competition shall be the law of the CHAPTER III

country where competitive relations or the collective interests

of consumers are, or are likely to be, affected. UNJUST ENRICHMENT, NEGOTIORUM GESTIO AND CULPA IN

CONTRAHENDO

2. Where an act of unfair competition affects exclusively the

interests of a specific competitor, Article 4 shall apply. Article 10

3. The law applicable to a non-contractual obligation arising Unjust enrichment

out of a restriction of competition shall be the law of the

country on whose market the restriction has, or is likely to 1. If a non-contractual obligation arising out of unjust

have, effect. enrichment, including payment of amounts wrongly received,

concerns a relationship existing between the parties, such as

4. The law applicable under this Article may not be dero- one arising out of a contract or a tort/delict, that is closely

gated from by an agreement pursuant to Article 14. connected with that unjust enrichment, it shall be governed by

the law that governs that relationship.

2. Where the law applicable cannot be determined on the

Article 7 basis of paragraph 1 and the parties have their habitual resi-

dence in the same country when the event giving rise to unjust

enrichment occurs, the law of that country shall apply.

Environmental damage

3. Where the law applicable cannot be determined on the

The law applicable to a non-contractual obligation arising out basis of paragraphs 1 or 2, it shall be the law of the country in

of environmental damage or damage sustained by persons or which the unjust enrichment took place.

property as a result of such damage shall be the law determined

pursuant to Article 4(1), unless the person seeking compensa-

tion for damage chooses to base his or her claim on the law of 4. Where it is clear from all the circumstances of the case

the country in which the event giving rise to the damage that the non-contractual obligation arising out of unjust enrich-

occurred. ment is manifestly more closely connected with a country

other than that indicated in paragraphs 1, 2 and 3, the law of

that other country shall apply.

Article 8

Article 11

Infringement of intellectual property rights

Negotiorum gestio

1. The law applicable to a non-contractual obligation arising

from an infringement of an intellectual property right shall be

the law of the country for which protection is claimed. 1. If a non-contractual obligation arising out of an act

performed without due authority in connection with the affairs

of another person, concerns a relationship existing between the

2. In the case of a non-contractual obligation arising from parties, such as one arising out of a contract or a tort/delict,

an infringement of a unitary Community intellectual property that is closely connected with that non-contractual obligation,

right, the law applicable shall, for any question that is not it shall be governed by the law that governs that relationship.

28.11.2006 EN Official Journal of the European Union C 289E/73

2. Where the law applicable cannot be determined on the (b) where all the parties are pursuing a commercial activity,

basis of paragraph 1, and the parties have their habitual resi- also by an agreement freely negotiated before the event

dence in the same country when the event giving rise to the giving rise to the damage occurred.

damage occurs, the law of that country shall apply. The choice shall be expressed or demonstrated with reasonable

3. Where the law applicable cannot be determined on the certainty by the circumstances of the case and shall not preju-

basis of paragraphs 1 or 2, it shall be the law of the country in dice the rights of third parties.

which the act was performed. 2. Where all the elements relevant to the situation at the

4. Where it is clear from all the circumstances of the case time when the event giving rise to the damage occurs, are

that the non-contractual obligation arising out of an act located in a country other than the country whose law has

performed without due authority in connection with the affairs been chosen, the choice of the parties shall not prejudice the

of another person is manifestly more closely connected with a application of provisions of the law of that country which

country other than that indicated in paragraphs 1, 2 and 3, the cannot be derogated from by agreement.

law of that other country shall apply. 3. Where all the elements relevant to the situation at the

time when the event giving rise to the damage occurs, are

Article 12 located in one or more of the Member States, the parties'

choice of the law applicable other than that of a Member State

Culpa in contrahendo shall not prejudice the application of provisions of Community

law, where appropriate as implemented in the Member State of

1. The law applicable to a non-contractual obligation arising the forum, which cannot be derogated from by agreement.

out of dealings prior to the conclusion of a contract, regardless

of whether the contract was actually concluded or not, shall be

the law that applies to the contract or that would have been CHAPTER V

applicable to it had it been entered into. COMMON RULES

2. Where the law applicable cannot be determined on the

basis of paragraph 1, it shall be: Article 15

(a) the law of the country in which the damage occurs, irre- Scope of the law applicable

spective of the country in which the event giving rise to

the damage occurred and irrespective of the country or The law applicable to non-contractual obligations under this

countries in which the indirect consequences of that event Regulation shall govern in particular:

occurred; or (a) the basis and extent of liability, including the determination

(b) where the parties have their habitual residence in the same of persons who may be held liable for acts performed by

country at the time when the event giving rise to the them;

damage occurs, the law of that country; or (b) the grounds for exemption from liability, any limitation of

the non-contractual obligation arising out of dealings prior

to the conclusion of a contract is manifestly more closely (c) the existence, the nature and the assessment of damage or

connected with a country other than that indicated in the remedy claimed;

points (a) and (b), the law of that other country. (d) within the limits of powers conferred on the court by its

procedural law, the measures which a court may take to

Article 13 prevent or terminate injury or damage or to ensure the

provision of compensation;

Applicability of Article 8 (e) the question whether a right to claim damages or a remedy

may be transferred, including by inheritance;

For the purposes of this Chapter, Article 8 shall apply to non-

contractual obligations arising from an infringement of an (f) persons entitled to compensation for damage sustained

intellectual property right. personally;

(g) liability for the acts of another person;

CHAPTER IV (h) the manner in which an obligation may be extinguished

FREEDOM OF CHOICE and rules of prescription and limitation, including rules

relating to the commencement, interruption and suspension

Article 14 of a period of prescription or limitation.

Freedom of choice Article 16

1. The parties may agree to submit non-contractual obliga- Overriding mandatory provisions

tions to the law of their choice:

(a) by an agreement entered into after the event giving rise to Nothing in this Regulation shall restrict the application of the

the damage occurred; provisions of the law of the forum in a situation where they

are mandatory irrespective of the law otherwise applicable to

or the non-contractual obligation.

C 289E/74 EN Official Journal of the European Union 28.11.2006

Article 17 non-contractual obligations, it contains rules which raise

presumptions of law or determine the burden of proof.

Rules of safety and conduct

2. Acts intended to have legal effect may be proved by any

In assessing the conduct of the person claimed to be liable, mode of proof recognised by the law of the forum or by any of

account shall be taken, as a matter of fact and in so far as is the laws referred to in Article 21 under which that act is

appropriate, of the rules of safety and conduct which were in formally valid, provided that such mode of proof can be admi-

force at the place and time of the event giving rise to the liabi- nistered by the forum.

lity.

CHAPTER VI

Article 18 OTHER PROVISIONS

Direct action against the insurer of the person liable Article 23

The person having suffered damage may bring his or her claim

directly against the insurer of the person liable to provide Habitual residence

compensation if the law applicable to the non-contractual obli-

gation or the law applicable to the insurance contract so 1. For the purposes of this Regulation, the habitual residence

provides. of companies and other bodies, corporate or unincorporated,

shall be the place of central administration.

Article 19 Where the event giving rise to the damage occurs, or the

damage arises, in the course of operation of a branch, agency

or any other establishment, the place where the branch, agency

Subrogation or any other establishment is located shall be treated as the

place of habitual residence.

Where a person (`the creditor') has a non-contractual claim

upon another (`the debtor'), and a third person has a duty to 2. For the purposes of this Regulation, the habitual residence

satisfy the creditor, or has in fact satisfied the creditor in of a natural person acting in the course of his or her business

discharge of that duty, the law which governs the third person's activity shall be his or her principal place of business.

duty to satisfy the creditor shall determine whether, and the

extent to which, 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. Article 24

Exclusion of renvoi

Article 20 The application of the law of any country specified by this

Regulation means the application of the rules of law in force in

Multiple liability that country other than its rules of private international law.

If a creditor has a claim against several debtors who are liable

for the same claim, and one of the debtors has already satisfied Article 25

the claim in whole or in part, the question of that debtor's

right to demand compensation from the other debtors shall be

governed by the law applicable to that debtor's non-contractual States with more than one legal system

obligation towards the creditor. 1. 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

Article 21 country for the purposes of identifying the law applicable

under this Regulation.

Formal validity

2. A Member State within which different territorial units

A unilateral act intended to have legal effect and relating to a have their own rules of law in respect of non-contractual obli-

non-contractual obligation shall be formally valid if it satisfies gations shall not be required to apply this Regulation to

the formal requirements of the law governing the non-contrac- conflicts solely between the laws of such units.

tual obligation in question or the law of the country in which

the act is performed.

Article 26

Article 22 Public policy of the forum

Burden of proof The application of a provision of the law of any country speci-

fied by this Regulation may be refused only if such application

1. The law governing a non-contractual obligation under is manifestly incompatible with the public policy (`ordre

this Regulation shall apply to the extent that, in matters of public')of the forum.

28.11.2006 EN Official Journal of the European Union C 289E/75

Article 27 2. The Commission shall publish in the Official Journal of the

European Union within six months of receipt:

Relationship with other provisions of Community law (i) a list of the conventions referred to in paragraph 1;

This Regulation shall not prejudice the application of provi-

sions of Community law which, in relation to particular (ii) the denunciations referred to in paragraph 1.

matters, lay down conflict-of-law rules relating to non-contrac-

tual obligations. Article 30

Article 28 Review clause

Relationship with existing international conventions Not later than ... (**), the Commission shall submit to the

1. This Regulation shall not prejudice the application of European Parliament, the Council and the European Economic

international conventions to which one or more Member States and Social Committee a report on the application of this Regu-

are parties at the time when this Regulation is adopted and lation. If necessary, the report shall be accompanied by propo-

which lay down conflict-of-law rules relating to non-contrac- sals to adapt this Regulation. In particular, the report shall

tual obligations. consider non-contractual obligations arising out of traffic acci-

dents and out of violations of privacy and rights relating to

2. However, this Regulation shall, as between Member personality, including defamation.

States, take precedence over conventions concluded exclusively

between two or more of them insofar as such conventions

concern matters governed by this Regulation. Article 31

Application in time

CHAPTER VII

FINAL PROVISIONS This Regulation shall apply to events giving rise to damage

which occur after its entry into force.

Article 29

List of conventions Article 32

1. By ... (*), Member States shall notify the Commission of Date of application

the conventions referred to in Article 28(1). After that date,

Member States shall notify the Commission of all denunciations This Regulation shall apply from ... (***), except for Article 29,

of such conventions. which shall apply from ... (*).

This Regulation shall be binding in its entirety and directly applicable in the Member States in

accordance with the Treaty establishing the European Community.

Done at Brussels,

For the European Parliament For the Council

The President The President

... ...

(**) Four years after the date of entry into force of this Regulation.

(*) 12 months after the date of the adoption of this Regulation. (***) 18 months after the date of adoption of this Regulation.

C 289E/76 EN Official Journal of the European Union 28.11.2006

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

The Council reached general agreement on the text of the draft Regulation on the law applicable to

non-contractual obligations on 1-2 June 2006. This led to the adoption of a common position on 25

September 2006 under the co-decision procedure.

The Council took its decision by qualified majority. The delegations of Estonia and Latvia voted against

due to their reservations on Article 9 on industrial action and its implications for the freedom to

provide services. (1)

When adopting its position, the Council took into account the opinion of the European Parliament

delivered at first reading on 6 July 2005. (2)

The purpose of this proposal is to lay down a uniform set of rules of law applicable to non-contractual

obligations, irrespective of the country of the court in which an action is brought. This should increase

certainty as to the applicable law and improve the predictability of legal disputes and the free move-

ment of judgements.

II. ANALYSIS OF THE COMMON POSITION

1. General

The Council's common position follows largely the same line as the Commission's original proposal

as modified by the amended proposal submitted to the Council on 22 February 2006 (3).

The principal changes made to the text are as follows:

1. In comparison with the original Commission proposal the scope of the instrument has been clar-

ified and further elaborated. Civil and commercial matters do not cover liability of the State for

acts and omissions in the exercise of state authority (`acta iure imperii'). An additional exclusion

has been added to Article 1(2) (g) to reflect the discussions and the final compromise on viola-

tions of privacy and rights relating to personality.

2. The Regulation follows the same logic as the original Commission proposal in the sense that the

Regulation sets out a general rule for the law applicable to a tort/delict. The general rule consists

of applying the law of the country where damage occurred. This has not changed as compared

to the original Commission proposal. Article 4(2) sets out an exception from the general prin-

ciple, creating a special connection where the parties have their habitual residence in the same

country. Article 4(3) should be understood as an 'escape clause' from Articles 4(1) and 4(2),

where it is clear from all the circumstances of the case that the tort/delict is manifestly more

closely connected with another country.

As a matter of principle, the general rule should be applicable to all non-contractual obligations

covered by the Regulation. Only in certain limited, duly justified circumstances should the

general rule be derogated from and special rules applied. In accordance with the conditions

specified in Article 14 the parties may agree to submit non-contractual obligations to the law of

their choice.

3. In comparison with the original Commission proposal, the scope of the special rules has been

further clarified in order to facilitate their practical application. The Regulation currently contains

special rules in matters of product liability, unfair competition, environmental damage, infringe-

ments of intellectual property and industrial action.

4. Negotiations over violations of privacy and rights relating to personality caused difficulties to

many delegations. The Council examined this issue on numerous occasions and carefully consid-

ered all options on the negotiating table, including the proposal by the European Parliament.

(1) See ref to I/A-item note 12219/2006 CODEC 838 JUSTCIV 181;

(2) See 10812/05 CODEC 590 JUSTCIV 132;

(3) See 6622/06 JUSTCIV 32 CODEC 171;

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Nevertheless, as a final compromise and in an attempt to reconcile the conflicting interests, the

Council decided to delete the special rule on violations of privacy and rights relating to person-

ality at this stage. As indicated above, such matters are currently excluded from the scope of the

Regulation by Article 1(2) g.

However, this has to be read together with Article 30. The review clause, proposed by the Euro-

pean Parliament and currently contained in Article 30, makes provision for a report to be

submitted by the Commission at the latest four years after the date of entry into force of the

Regulation. The report should consider in particular non-contractual obligations arising out of

violations of privacy and rights relating to personality, including defamation.

5. Differently from the original Commission proposal, the Regulation now also contains a rule on

industrial action in line with the proposal of the European Parliament. With the aim of balancing

the interests of workers and employers, this rule consists of applying the law of the country

where the industrial action was taken. However, this provision caused such difficulties to two

delegations that they voted against the common position.

6. The original proposal of the Commission contained one provision for non-contractual obliga-

tions arising out of acts other than torts/delicts. The Regulation now includes a specific chapter

with separate provisions on unjust enrichment, negotiorum gestio and culpa in contrahendo.

7. The Articles on mandatory provisions, relationship with other Community law provisions and

relationship with existing international conventions have further been simplified.

8. The Regulation now contains, as requested by the European Parliament, a review clause, which

obliges the Commission to submit to the European Parliament, the Council and the European

Economic and Social Committee a report on the application of the Regulation. In particular, the

report shall consider non-contractual obligations arising out of traffic accidents and out of viola-

tions of privacy and rights relating to personality, including defamation.

Other amendments are of a more formal nature and have been made to render the text easier to

read.

After revision by Legal/Linguistic Experts, the text and the recitals have been re-numbered. A

table in the Annex sets out the respective numbers as set out in the common position and as

they were indicated in the original proposal.

2. Parliament's amendments

The Council has accepted many of European Parliament's amendments. In some cases, however, the

discussions in the Council and the revision of the text by Legal/Linguistic Experts showed the need

for certain technical clarifications. In order to ensure correspondence to the provisions of the Regu-

lation, the recitals have been adapted and updated.

The changes made to Articles 1, 2, 4, 9, 10, 11, 12, 28 and 30 require the inclusion of additional

recitals.

Recitals 1-5 have been updated in order to take account of the latest developments at political level.

Accordingly, the reference to the 1998 Action Plan has been replaced by guidelines contained in

the Hague Programme adopted by the European Council in 2004.

a) Amendments accepted in their entirety

Amendments 12, 17, 21, 22, 35, 37, 39, 40, 45, 51, 52 and the oral amendments can be accepted

as presented by the European Parliament since they contribute either to the clarity and consistency

of the instrument or to questions of detail.

b) Amendments accepted in substance

Amendments 2, 15, 18, 19, 20, 23, 24, 28, 31, 34, 38, 45, 54 can be accepted in substance subject

to re-drafting.

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Amendment 2 is covered by current recitals (29) and (31).

The substance of amendment 15 is taken over by recital (24).

The changes proposed by amendment 18 are reflected in substance in Articles 2 and 1(1).

Amendments 19 and 20 are included in the text of Articles 1(2) b and 1(2) d. However, the drafting

has been simplified, in particular due to the inclusion of Article 2.

Amendment 23 is accepted in substance. However, the Council considers that in view of the

changes made to recital (9) and Article 1(1) this amendment is redundant.

The Council consider that the changes proposed by amendment 24 are covered in substance by the

changes made to Articles 16, 26 and 27, as well as recital (31).

The Council can accept the principle of amendments 28 and 34, which would change the structure

and the title of the sections. The Council considers that this is reflected in the current structure of

the Regulation, which is divided into, Chapter I - Scope, Chapter II - Torts/delicts, Chapter III -

Unjust enrichment, negotiorum gestio and culpa in contrahendo, Chapter IV - Freedom of choice

and Chapter V - Common provisions, and would serve the same purpose.

Amendment 31 introduces a new provision on industrial action. This is in line with the negotiations

in the Council. However, the substance of the rule has been further elaborated in Article 9 and by

recitals (24) and (25).

The substance of amendment 38 is taken over by Article 14. However, the Council has tried to

simplify the wording and render it more flexible.

The substance of amendment 46 is taken over by Article 18.

c) Amendments accepted in part

Amendment 3, 14, 25, 26, 36, 44, 53 and 54 can be accepted in part.

Amendment 3 is only partly acceptable since the recital relates to Article 4 and amendment 26 on

Article 4 is not fully accepted. The first sentence of the amendment is reflected in substance in the

current text of recitals (13) and (14). The last part of the amendment is reflected in the current text

of recital (28).

Amendment 14 proposes, firstly, to add the words 'in so far as appropriate' so as to add emphasis

to the discretion of the court and, secondly, to exclude this possibility in matters of violations of

privacy and unfair competition. While the Council can accept the first part of the amendment,

matters of violations of privacy have been excluded from the scope, and the Council sees no justifi-

cation for making an exception for cases of unfair competition.

Amendment 25 is acceptable in principle. However, the conditions for expressing ex ante choice

should in view of the Council be laid down in clear and unequivocal terms.

Amendment 26 relates to the general rule contained in Article 4.

With regard to Article 4(1) the Council can accept the changes proposed.

On the other hand, the Council cannot accept the changes to paragraph 2. Paragraph 2 brings in a

specific rule on traffic accidents which would subject the non-contractual obligation and the

amount of damages to two different laws. As the Commission has stated in its revised proposal (1)

this solution diverges from the law in force in the Member States and cannot therefore be adopted

without prior in-depth analysis. It is accordingly proposed that the question be considered in detail

in the report foreseen by Article 30.

(1) See 6622/06 JUSTCIV 32 CODEC 171;

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As to Article 4(3), it should be seen as an escape clause from Articles 4(1) and (2), where it is clear

from all the circumstances of the case that the tort/delict is manifestly more closely connected with

another country. In the light of this, the Council sees no need for listing specific factors.

Amendment 36 relates to the new Article 10. While in principle the changes proposed are accep-

table, the Council considers that the law of the country in which enrichment took place is a more

appropriate connecting factor in case the applicable law cannot be determined on the basis of

Article 10(1) or (2).

The first part of amendment 44 is acceptable to the Council. However, in the course of the negotia-

tions it was agreed to delete paragraph (2) that would create fundamental problems to certain

Member States and therefore the Council cannot accept this part of the amendment.

Amendment 53 is accepted in part. The Council considers that it would be more appropriate to

have the Regulation take automatically precedence over conventions concluded exclusively between

two or more of the Member States insofar as such conventions concern matters governed by the

Regulation. The amendment proposed to Article 28(3) is not accepted since the Hague Convention

provides for a specific regime on traffic accidents and many of the Member States that are

contracting parties to the Convention expressed their wish to preserve this regime. In this context,

regard should be had to the review clause in Article 30, which makes a specific reference to traffic

accidents.

The Council welcomes the review clause as proposed by amendment 54. However, the Council

suggests that a more generic review clause is more appropriate to ensure effective evaluation in the

framework of the existing competencies (see Article 30).

d) Amendments rejected

Amendments 1, 4, 5, 6, 8, 10, 11, 13, 16, 27, 29, 32, 33, 41, 42, 43, 47, 49, 50, 56 and 57 are

rejected.

Amendment 1 refers to the Rome I Regulation. However, until the Regulation is adopted, it is more

appropriate to refer to the existing 1980 Rome I Convention on the law applicable to contractual

obligations.

Amendment 4 relates to the changes proposed to the general rule (amendment 26). Since amend-

ment 26 was rejected in part, the corresponding changes to the recital would have to be rejected.

In view of the changes made to the scope of the Regulation, the Council sees no need for amend-

ment 5.

Amendment 6, 8, 11 and 13 would adapt the recitals to reflect the deletion of several special rules

from the Regulation as proposed by amendments 27 (product liability), 29 (unfair competition and

acts restricting free competition) and 33 (violations of the environment). The Council cannot accept

the deletion of these special rules, therefore the corresponding amendments to the recitals would

have to be rejected as well. However, the Council has made an effort to clearly define the scope of

these special rules in order to facilitate their practical application.

Amendments 10 and 56 would have to be rejected since non-contractual obligations arising out of

violations of privacy and rights relating to personality, including defamation, have been excluded

from the scope of the Regulation

Amendment 16 is not acceptable to the Council, since the Council rejects amendment 42 to which

this amendment corresponds.

Amendment 27 would abolish the special rule on product liability. The Council considers that the

application of the general rules in cases of product liability would not allow foreseeing the applic-

able law with reasonable certainty. Creation of a cascade system of connecting factors, together

with a foreseeability clause, appears to be a balanced solution in view of this objective.

C 289E/80 EN Official Journal of the European Union 28.11.2006

Amendment 29 proposes to delete the specific rule on unfair competition. The Council cannot

accept that. The rule in Article 6 is not an exception to the general rule contained in Article 4(1)

but rather clarifies it in order to determine where the damage arises. In matters of unfair competi-

tion, the rule should protect competitors, consumers and the general public and ensure that the

market economy functions properly. The connection to the place where the competitive relations

or the collective interests of consumers are affected, or in case of restrictions of competition, the

country where the restriction has or is likely to have effect, generally satisfy these objectives. The

non-contractual obligations arising out of restrictions of competition in Article 6(3) should cover

infringements of both Community and national competition law.

Amendment 32 is related to amendment 26 which is rejected by the Council to the extent it relates

to traffic accidents. For the same reasons as indicated above, this amendment is rejected.

The Council cannot accept the deletion of the special rule for environmental damage as proposed

by amendment 33. The proposed rule reflects the 'polluter pays' principle promoted by the Com-

munity and already applied in several Member States.

The Council cannot accept amendment 41 since it would appear to be in contradiction with the

changes proposed by amendment 40 which the Council accepts.

Amendments 42 and 43 address the question of the application of foreign law by the court. The

Council rejects these amendments since this question should be tackled in a different context.

Since amendment 22 was accepted, amendment 47 is redundant in the view of the Council.

The Council considers that the clarification contained in Article 23(2) is sufficient for the purposes

of natural persons acting in the course of their business activities. Thus, amendment 49 is rejected.

Amendment 50 aims at clarifying the concept of public policy. It would be difficult for the time-

being to lay down common criteria and reference instruments for the purposes of defining public

policy. For these reasons amendment 50 is rejected.

Amendment 57 relates to Article 6 of the original Commission proposal. The Council examined

this issue on numerous occasions and carefully considered all options on the negotiating table,

including the solution proposed by the European Parliament. However, as a final compromise and

in an attempt to reconcile the conflicting interests, the Council proposes to delete the special rule

on violations of privacy and rights relating to personality at this stage. Accordingly amendment 57

has to be rejected. Instead the Regulation provides in Article 1(2) (g) for an exclusion from the

scope.

However, this should be read together with Article 30. The review clause contained in Article 30

makes provision for a report to be submitted by the Commission at the latest four years after the

date of entry into force of the Regulation. The report shall consider in particular non-contractual

obligations arising out of violations of privacy and rights relating to personality, including defama-

tion.

III. CONCLUSION

The Council considers that the text of the common position on Regulation on the law applicable to

non-contractual obligations creates a balanced system of conflict-of-law rules in the field of non-

contractual obligations and achieves the desired uniformity of rules of applicable law. Furthermore, the

common position is in broad terms in line with the original proposal of the Commission and the

opinion of the European Parliament.

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ANNEX

TABLE OF CORRESPONDENCE

The original Commission proposal The Council's common position

Recital (1) Recital (1)

new Recital (2)

Recital (2) deleted

Recital (3) Recital (3)

new Recital (4)

new Recital (5)

Recital (4) Recital (6)

Recital (5) Recital (7)

new Recital (8)

new Recital (9)

new Recital (10)

new Recital (11)

Recital (6) Recital (12)

Recital (7) Recital (13)

Recital (8) Recital (14)

new Recital (15)

new Recital (16)

Recital (9) Recital (17)

Recital (10) Recital (18)

Recital (11) Recital (19)

new Recital (20)

new Recital (21)

Recital (12) deleted

Recital (13) Recital (22)

Recital (14) Recital (23)

new Recital (24)

new Recital (25)

Recital (15) Recital (26)

new Recital (27)

Recital (16) Recital (28)

Recital (17) Recital (29)

Recital (18) Recital (30)

Recital (19) Recital (31)

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The original Commission proposal The Council's common position

Recital (20) Recital (32)

new Recital (33)

Recital (21) Recital (34)

Recital (22) Recital (35)

Recital (23) Recital (36)

Article 1 Article 1

new Article 2

Article 2 Article 3

Article 3 Article 4

Article 4 Article 5

Article 5 Article 6

Article 6 deleted

Article 7 Article 7

Article 8 Article 8

new Article 9

Article 9(1) Article 12

Article 9(2) Article 10(2), 11(2), 12(2)b

Article 9(3) Article 10

Article 9(4) Article 11

Article 9(5) Article 10(4), 11(4), 12(2)c

Article 9(6) Article 13

Article 10 Article 14

Article 11 Article 15

Article 12 Article 16

Article 13 Article 17

Article 14 Article 18

Article 15(1) Article 19

Article 15(2) Article 20

Article 16 Article 21

Article 17 Article 22

Article 18 deleted

Article 19 Article 23

Article 20 Article 24

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The original Commission proposal The Council's common position

Article 21 Article 25

Article 22 Article 26

Article 23 Article 27

Article 24 deleted

Article 25 Article 28

Article 26 Article 29

new Article 30

Article 27 second section Article 31

Article 27 first and third sections Article 32