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Contents
- Preliminary Material
- Main Text
- Part I Introductory Topics
- 1 Background
- Preliminary Material
- A Introduction
- B The Pre-Regulation Position: a Comparative Overview
- C The Road to Rome II
- 1.44
- Conception—A Convention on the Law Applicable to Contractual and Non-Contractual Obligations?
- Treaty on European Union—Picking Up Tools
- Impact of the Treaty of Amsterdam
- Early Work on a Possible ‘Rome II’ Convention
- Proposal of the European Group for Private International Law (GEDIP)
- The Vienna Action Plan and the Tampere European Council
- The Council’s Work Continues …
- as the Commission Prepares to Act
- The Commission’s Green Paper—A Disappearing Act
- The Commission’s Preliminary Draft Proposal
- The Treaty of Nice—Joint Competence of the Council and Parliament
- The Commission’s Proposal
- Assessment of the Proposal by the UK House of Lords’ Select Committee
- The European Parliament (First Reading Procedure)
- The Report of the European Economic and Social Committee
- The Council Deliberates
- The Rise and Fall of the ‘Country of Origin Principle’
- The Commission’s Amended Proposal
- Political Agreement and Common Position of the Council
- The European Parliament (Second Reading Procedure)
- The Conciliation Process and Adoption of the Regulation
- D Conclusion: End of the Road?
- 2 Treaty Base
- Preliminary Material
- A Introduction
- B The EC Law Framework
- Introduction
- Relevant Provisions of Title IV to the EC Treaty
- Restrictions on Community Competence
- Establishing an ‘Area of Freedom, Security and Justice’
- The Internal Market Connection
- 2.16
- 2.17
- 2.18
- 2.19
- The Internal Market and its Proper Functioning
- The Required Connection to the Internal Market under Art 65
- Regulating the Internal Market—The Tobacco Advertising Decision
- Can Art 65 Measures Extend to Situations Having No Connection to the Internal Market?
- The Treaty Establishing a Constitution for Europe and the Reform Treaty
- Facing Reality—Judicial Restraint in the Review of Internal Market Measures
- Other Potential Restrictions on the Community’s Legislative Competence
- Procedure for Challenge
- Conclusion
- C The Case for Community Legislation
- The Commission’s Proposal
- General Approach to Legal Basis
- Approach to Scope of Regulation
- Approach to Questions of Subsidiarity and Proportionality
- The EESC Opinion
- Advice of the Council Legal Service
- Discussions in Council
- The European Parliament
- The Commission’s Proposal
- D The Text of the Regulation
- E Conclusion
- 3 Foundations and Scope
- Preliminary Material
- A Interpretation
- Introduction
- The First Aspect—Equal Authenticity of Different Language Versions
- The Second Aspect—Autonomous Meaning of Particular Terms
- The Third Aspect—Context and Objectives
- 3.13
- 3.14
- 3.15
- 3.16
- Recitals
- Recitals as an Aid to Interpretation
- Relevance of Travaux Préparatoires
- Relevance of Other EC Instruments
- B Key Concepts and Terms
- C Scope of the Regulation—Introduction and Approach to Characterization
- D Material Scope
- Introduction
- Non-Contractual Obligations
- 3.86
- 3.87
- Negative Content of ‘Non-Contractual Obligations’ I—Obligations, not Status
- Negative Content of ‘Non-Contractual Obligations’ II—Excluding ‘Contractual Obligations’
- Negative Content of ‘Non-Contractual Obligations’ III—Specific Excluded Matters
- Introduction
- Family Relationships (Art 1(2)(a))
- Matrimonial Property Regimes, Wills and Succession (Art 1(2)(b))
- Bills of Exchange, Promissory Notes and Other Negotiable Instruments (Art 1(2)(c))
- The Law of Companies and Other Bodies Corporate and Unincorporate (Art 1(2)(d))
- Voluntary Trusts (Art 1(2)(e))
- Introduction
- The concept of a ‘trust’
- Trust ‘created voluntarily’
- 3.194 Trusts arising in connection with matters of wills and succession
- Obligations of (or to) persons other than settlor, trustee, or beneficiary
- The relationship between trusts and non-contractual obligations under the Regulation
- 3.198
- 3.199
- 3.200
- 1 The relationship between trusts and non-contractual obligations under the Regulation
- 2 The relationship between trusts and non-contractual obligations under the Regulation
- 3 The relationship between trusts and non-contractual obligations under the Regulation
- 4 The relationship between trusts and non-contractual obligations under the Regulation
- 5 The relationship between trusts and non-contractual obligations under the Regulation
- Relationship between the Regulation, the 1985 Hague Convention, and the UK Recognition of Trusts Act 1987
- 3.207 Summary of conclusions (UK law)
- Nuclear damage (Art 1(2)(f))
- 3.208
- The 1960 Paris Convention
- The 1963 Vienna Convention
- 3.213 The 1988 Joint Protocol relating to the application of the Vienna Convention and the Paris Convention
- Expanded definition of ‘nuclear damage’ under the Vienna and Paris Conventions
- 3.216 Non-contractual obligations ‘arising out of nuclear damage’
- Violations of privacy and rights relating to personality (Art 1(2)(g))
- Evidence and Procedure
- Positive Content of ‘Non-Contractual Obligations’—Chapters II and III of the Regulation
- Testing the Limits of the Regulation—The Action Paulienne
- Non-Contractual Obligations—Summary of Conclusions
- Civil and Commercial Matters
- E Territorial Application of the Regulation
- 3.287
- The Persons Regulated—Courts or Tribunals of the EC Member States (Excluding Denmark)
- The Situations Regulated—Application to Federal and Other Composite States
- The Situations Regulated—Universal Application
- The Situations Regulated—Connection to the Territory of a State and other Situations
- F Temporal Scope
- G Overview and the Way Forward
- 1 Background
- Part II Non-Contractual Obligations Arising Out of Tort/Delict
- 4 Tort/Delict—General Rules
- Preliminary Material
- A Introduction
- B Non-Contractual Obligations Arising Out of a Tort/Delict
- C The Law Generally Applicable to Torts/Delicts—Law of the Country of (Direct) Damage (Art 4(1))
- D Exceptions to the General Rule
- E Tort/Delict—Specific Examples
- F Relationship with the Hague Traffic Accidents Convention
- 5 Product Liability
- Preliminary Material
- A Introduction
- B Damage Caused by a Product
- C Product ‘Marketed’ in a Particular Country
- D The Law Applicable to Non-Contractual Obligations Arising Out of Damage Caused by a Product
- 5.26
- 5.27
- 5.28
- First Level—Country of Habitual Residence of the Person Sustaining the Damage (Art 5(1)(a))
- Second Level—Country in which the Product was Acquired (Art 5(1)(b))
- Third Level—Country in which the Damage Occurred (Art 5(1)(c))
- First Rule of Displacement—Country of Habitual Residence of the Person Claimed to be Liable (Art 5(1), final para)
- Second Rule of Displacement—Country of Common Habitual Residence (Art 5(1), opening words referring to Art 4(2))
- Third Rule of Displacement—Country Having a ‘Manifestly Closer Connection’ (Art 5(2))
- E The Relationship Between Article 5 and the Product Liability Directive
- F Relationship With the Hague Products Liability Convention
- 6 Unfair Competition/Restriction of Competition
- Preliminary Material
- A Introduction
- B The Nature of Article 6 and Its Relationship to Article 4
- C The Law Applicable to Non-Contractual Obligations Arising Out of Acts of Unfair Competition (Arts 6(1) and 6(2))
- D The Law Applicable to Non-Contractual Obligations Arising Out of Restrictions of Competition (Art 6(3))
- E Exclusion of Party Choice (Art 6(4))
- F The Private Enforcement of Competition Law—Future Development
- 7 Environmental Damage
- 8 Intellectual Property
- Preliminary Material
- A Introduction
- B Infringement of Intellectual Property Rights
- C Non-Community Intellectual Property Rights—The Law of the Country for which Protection is Claimed (Art 8(1))
- D Community Rights—The Law of the Country in which the Act of Infringement Occurred (Art 8(2))
- E Scope of the Applicable Law
- F Exclusion of Party Choice (Art 8(3))
- 9 Industrial Action
- Preliminary Material
- A Introduction
- B Scope of Article 9
- C The Law Applicable to Non-Contractual Obligations in Industrial Action Cases—Law of the Country where the Action is Taken
- 4 Tort/Delict—General Rules
- Part III Other Non-Contractual Obligations
- 10 Unjust Enrichment
- Preliminary Material
- A Chapter III of the Regulation—Unjust Enrichment, Negotiorum Gestio , and Culpa in Contrahendo
- B Non-Contractual Obligation Arising Out of Unjust Enrichment
- C The Concept of ‘Unjust Enrichment’
- D The Law Applicable to Non-Contractual Obligations Arising Out of Unjust Enrichment
- 10.22
- First Level—Law Governing Relationship Existing between the Parties with which Obligation is Concerned (Art 10(1))
- Second Level—Country of Common Habitual Residence (Art 10(2))
- Third Level—Country in which Enrichment Took Place (Art 10(3))
- Rule of Displacement—Country Having a ‘Manifestly Closer Connection’ (Art 10(4))
- 11 Negotiorum Gestio
- Preliminary Material
- A Introduction
- B Non-Contractual Obligation Arising Out of an Act Performed without Due Authority in Connection with the Affairs of Another ( Negotiorum Gestio )
- C The Law Applicable to Non-Contractual Obligations in Situations of Negotiorum Gestio
- First Level—Law Governing Relationship Existing between the Parties with which Obligation is Concerned (Art 11(1))
- Second Level—Country of Common Habitual Residence (Art 11(2))
- Third Level—Country in which the Act was Performed (Art 11(3))
- Rule of Displacement—Country Having a ‘Manifestly Closer Connection’ (Art 11(4))
- 12 Culpa in Contrahendo
- 10 Unjust Enrichment
- Part IV Freedom of Choice and Common Rules
- 13 Choosing the Law Applicable to Non-Contractual Obligations
- Preliminary Material
- A Introduction
- B Party Choice of Law For Non-Contractual Obligations (Art 14(1))
- C Insulation of the Applicable Law (Arts 14(2) and 14(3))
- D Timing of the Agreement
- E Agreements Concluded Before 11 January 2009
- F Appraisal
- 14 Scope of the Law Applicable under the Regulation
- Preliminary Material
- A Introduction
- B Scope of the Law Applicable (Art 15)
- Introduction
- 14.02
- 14.03
- 14.04
- 14.05
- (A) The Basis and Extent of Liability, Including the Determination of Persons who may be held Liable for Acts Performed by them
- (B) The Grounds for Exemption from Liability, any Limitation of Liability and any Division of Liability
- (C) The Existence, the Nature and the Assessment of Damage or the Remedy Claimed
- (D) Within the Limits of Powers Conferred on the Court by its Procedural Law, the Measures which a Court may take to Prevent or Terminate Injury or Damage or to Ensure the Provision of Compensation
- (E) The Question Whether a Right to Claim Damages or a Remedy may be Transferred, including by Inheritance
- (F) Persons Entitled to Compensation for Damage Sustained Personally
- (G) Liability for the acts of Another Person
- (H) The Manner in which an Obligation may be Extinguished and rules of Prescription and Limitation, including Rules Relating to the Commencement, Interruption and Suspension of a Period of Prescription or Limitation
- Introduction
- C Evidence and Procedure
- D Introduction and Ascertainment of the Law Applicable Under the Regulation
- E Formal Validity
- F Burden of Proof
- G Direct Action Against Insurer
- H Subrogation
- I Multiple Liability—Indemnity and Contribution
- 15 Public Policy, Mandatory Rules, and Rules of Conduct and Safety
- 16 Relationship with EC Law and International Instruments
- Conclusion
- 13 Choosing the Law Applicable to Non-Contractual Obligations
- Part I Introductory Topics
- Further Material
- Appendices
- [No Title]
- Appendix 1 Regulation (EC) 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)
- (1)
- (2)
- (3)
- (4)
- (5)
- (6)
- (7)
- (8)
- (9)
- (10)
- (11)
- (12)
- [OJ L199, 41]
- [OJ L199, 42]
- [OJ L199 , 43]
- [OJ L199, 44]
- [OJ L199, 45]
- [OJ L199, 46]
- [OJ L199, 47]
- [OJ L199, 48]
- [OJ L199, 49]
- Appendix 2 Commission Proposal
- Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations (‘Rome II’)
- Explanatory Memorandum
- 1 Introduction
- 2 Proposal for a European Parliament and Council Regulation
- 3 Individual Provisions
- Art.1 [8] — Material scope
- Art.2 Universal application
- Art.3 [11] — General rules
- Art.4 Product liability
- Art.5 Unfair competition
- Art.6 [17] — Violations of privacy and rights relating to the personality
- Art.7 [19] — Violation of the environment
- Art.8 Infringement of intellectual property rights
- Art.9 Law applicable to non-contractual obligations arising out of an act other than a tort or delict
- Art.10 Freedom of choice
- Art.11 Scope of the law applicable to non-contractual obligations
- Art.12 Overriding mandatory rules
- Art.13 Rules of safety and conduct
- Art.14 Direct action
- Art.15 Subrogation and multiple liability
- Art.16 Formal validity
- Art.17 Burden of proof
- Art.18 [27] — Assimilation to the territory of a State
- Art.19 Assimilation to habitual residence
- Art.20 [28] — Exclusion of renvoi
- Art.21 States with more than one legal system
- Art.22 Public policy of the forum
- Art.23 [29] — Relationship with other provisions of Community law
- Art.24 Non-compensatory damages
- Art.25 Relationship with existing international conventions
- Art.26 List of conventions referred to in Article 25
- Explanatory Memorandum
- Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations (’Rome II’)
- (1)
- (2)
- (3)
- (4)
- (5)
- (6)
- (7)
- (8)
- (9)
- (10)
- (11)
- (12)
- (13)
- (14)
- (15)
- (16)
- (17)
- (18)
- (19)
- (20)
- (21)
- (22)
- (23)
- Ch.I Scope
- Ch.II Uniform Rules
- s.1 Rules applicable to non-contractual obligations arising out of a tort or delict
- s.2 Rules applicable to non-contractual obligations arising out of an act other than a tort or delict
- s.3 Common rules applicable to non-contractual obligations arising out of a tort or delict and out of an act other than a tort or delict
- Art.10 Freedom of choice
- Art.11 Scope of the law applicable to non-contractual obligations
- Art.12 Overriding mandatory rules
- Art.13 Rules of safety and conduct
- Art.14 Direct action against the insurer of the person liable
- Art.15 Subrogation and multiple liability
- Art.16 [38] — Formal validity
- Art.17 Burden of proof
- Ch.III Other Provisions
- Art.18 Assimilation to the territory of a State
- Art.19 Assimilation to habitual residence
- Art.20 Exclusion of renvoi
- Art.21 States with more than one legal system
- Art.22 Public policy of the forum
- Art.23 Relationship with other provisions of Community law
- Art.24 [40] — Non-compensatory damages
- Art.25 Relationship with existing international conventions
- Ch.IV Final Provisions
- Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations (‘Rome II’)
- Appendix 3 Commission Amended Proposal
- Appendix 4 Statement of Reasons Accompanying Council’s Common Position [Official Journal C289, 28.11.2006, P.0068-0083]
- 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)
- Appendix 5 Chronology
- Appendix 6 Published Materials
- Historical Background (The 1972 Draft Convention)
- The Commission’s Preliminary Draft Proposal
- The Commission Proposal
- The Legislative Process
- Comment
- General
- Art 4 (Torts/Delicts)
- Art 5 (Product Liability)
- Art 6 (Unfair Competition/Restrictions of Competition)
- Art 7 (Environmental Damage)
- Art 8 (Infringements of Intellectual Property Rights)
- Art 9 (Industrial Action)
- Chapter III (Unjust Enrichment, Negotiorum Gestio , and Culpa in Contrahendo )
- Other Provisions and Topics
- Appendix 7 Table of Recitals
- Index
- Appendices
