In March 2005, in the framework of the so called ´The Hague Programme´ the European Council stressed once again the importance of maintaining and developing an area of freedom, security and justice within the EU. For the progressive establishment of such an 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 functioning of the internal market. The Council called for work to be pursued actively on the rules of conflict of laws regarding non-contractual obligations in order for the programme to be finished by 2011 at the latest.
One could say that the Council´s goals have been realized given the entry into force as per today (11-01-2009) of Regulation (EU) No. 864/2007 of the European Parliament and of the Council
of 11 July 2007 on the law applicable to non-contractual obligations (´Rome II´). The Regulation applies, in situations involving a conflict of laws, to non-contractual obligations in civil and commercial matters. It shall not apply, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii). The following shall be excluded from the scope of this Regulation:
(a) Non-contractual obligations arising out of family relationships and relationships deemed by the law applicable to such relationships to have comparable effects including maintenance obligations;
(b) non-contractual obligations arising out of matrimonial property regimes, property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage, and wills and succession;
(c) non-contractual 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) non-contractual obligations arising out of the law of companies and other bodies corporate or unincorporated regarding matters such as the creation, by registration or otherwise, legal capacity, internal organisation or winding-up of companies and other bodies corporate or unincorporated, the
Personal liability of officers and members as such for the obligations of the company or body and the personal liability of auditors to a company or to its members in the statutory audits of accounting documents;
(e) Non-contractual obligations arising out of the relations between the settlers, trustees and beneficiaries of a trust created voluntarily;
(f) Non-contractual obligations arising out of nuclear damage;
(g) Non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.
The general rule of reference to the applicable law consists of three steps. First: the law applicable to a non-contractual obligation arising out of a tort/crime shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. Second: where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply. Third: where it is clear from all the circumstances of the case that the tort/crime is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/crime in question.
The Regulation applies to events giving rise to damage which occur after its entry into force (January 11, 2009). |
