Rome II nadert voltooing

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Rome II nadert voltooing
Welk recht is van toepassing indien u als Nederlands onderdaan in Oostenrijk een verkeersongeluk veroorzaakt? Oostenrijks recht of misschien toch wel Nederlands recht? Het antwoord op deze vraag staat in het voorstel voor een verordening betreffende het recht dat van toepassing is op niet-contractuele verbintenissen (Rome II). Na 4 jaar onderhandelen hebben de Raad en het EP, na tussenkomst van het bemiddelingscomité van artikel 251 lid 4 EG, eindelijk overeenstemming bereikt over dit voorstel.

IP/07/679

Brussels, 16 May 2007

European Union brings in harmonised rules on law applicable to civil liability ("Rome II" Regulation)

After four years of negotiations, the European Parliament and the Council, meeting in the Conciliation Committee yesterday evening, approved a regulation harmonising the rules concerning the law applicable to non-contractual obligations ("Rome II"). This measure is part of the work in progress in the European Union on creating a genuine European area of freedom and justice. The aim is to ensure that courts in all the Member States apply the same law in the event of cross-border disputes in matters of tort/delict, thus facilitating the mutual recognition of court decisions in the European Union. The rules that have been adopted make it possible to strike a proper balance between the interests of the various parties involved in a cross-border dispute and to designate a law which is closely connected with the situation.

"I am glad that the two legislative bodies have at last agreed on this instrument, which, by its very nature, potentially concerns all the citizens and firms of the Union", stated Vice-President Franco Frattini, European Commissioner for justice and home affairs, who continued: "This is a fundamental instrument both for the completion of the European area of justice and for the proper functioning of the internal market. It is unacceptable that, as regards compensation for damage caused to persons and property, the settlement of a dispute varies considerably depending on which court it is referred to."

The initiative more particularly concerns questions related to civil liability for damage caused to others, particularly in the event of an accident. It applies, for example, to road accidents, defective products and environmental pollution. Expanding trade and travel in the Union mean that disputes of this nature are bound to become more frequent. But at the moment the Member States have no common rules to designate the applicable law in non-contractual matters, and each court observes its national rules. Accordingly, the legal solutions are likely to vary widely from one Member State to another, and parties might be tempted to refer the dispute to the court which will apply the law that is most favourable to them (this is the practice of forum shopping).

The Rome II rules aim to strike a reasonable balance between the interests of the alleged perpetrator of the damage and the victim. The Regulation adopts the solution applied in the majority of Member States and establishes a general rule that the law of the country in which the damage occurs (for example, the law of the place of the road accident) will apply, unless the parties both have their habitual residence in another country, in which case the law of that country will apply. There are a number of specific rules for the commonest specific torts/delicts such as product liability, environmental damage, anti-competitive practices, etc.

Regarding the highly controversial question of media violations of privacy, the co-legislators chose to exclude them from the scope of the Regulation but called on the Commission to present a detailed study by the end of 2008.

The Member States have been trying to harmonise the rules concerning conflicts of laws in matters of tort/delict since 1972. After negotiating an agreement in the conciliation procedure yesterday evening, the co-legislators now have eight weeks to adopt the Regulation formally. It will be applicable in the courts of the Member States from the beginning of 2009.

With Rome II, the Community harmonisation of the rules of private international law of civil and commercial obligations is complete. The international jurisdiction of courts and the recognition and enforcement of judgments given in another Member State are already governed by Council Regulation (EC) No 44/2001 of 22 December 2000, which applies to both contractual and non-contractual obligations. The rules concerning the law applicable to contracts have already been harmonised by the Rome Convention of 1980 on the law applicable to contractual obligations[1].

For further information on the activities of Vice-President Frattini, please visit his website at: http://www.ec.europa.eu/commission_barroso/frattini/index_en.htm

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[1] On 15 December 2005 the Commission adopted a proposal for a Regulation to convert the Rome Convention of 1980 into a Community Regulation (COM(2005)650 final).