1 Regulation (EC) No 864/2007, OJ L299, 40 [31.7.2007], reproduced in Appendix 1 and referred to in the following commentary as the Regulation or the Rome II Regulation. For a list of other books and materials dealing with the Regulation and the negotiations leading to its adoption, see Appendix 6.
2 For discussion of the temporal application of the Regulation, including its apparent effect in relation to events occurring on or after 20 August 2007 but before 11 January 2009, see 3.315–3.324 below.
3 Unless otherwise stated or the context otherwise requires, the commentary on the Regulation in the following chapters addresses the foreseeable state of the law on or after 11 January 2009.
5 The Regulation applies to all Member States except Denmark (3.288 below).
6 Indeed, in early discussions, the German delegation reported ‘certain hesitancies concerning the matter in scientific and legal circles’, adding that such differences of opinion need not bias their further deliberations from the outset (Report of Professor M Giuliano, Professor P Lagarde and Mr T van Sasse van Ysselt on the draft convention on the law applicable to contractual and non-contractual obligations (Commission document XIV/408/72—E (provisional version)) (Giuliano, Lagarde & van Ysselt Report), 4).
7 Not least, Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I) (OJ L177, 6 [4.7.2008]) (Rome I Regulation), which followed it and which (for contracts concluded after 17 December 2009) will replace the 1980 Rome Convention (OJ L266, 1 [9.10.1980]).
8 This topic is examined more closely in Ch 2.
9 S C Symeonides, ‘Rome II and Tort Conflicts: A Missed Opportunity’ (2008) 56 AJCL 173, 174. For a different view, see P J Kozyris, ‘Rome II: Tort Conflicts on the Right Track’ (2008) 56 AJCL 471, 479–80.
12 In particular, Arts 5 (product liability), 6 (unfair competition), 7 (environment), 8 (intellectual property), discussed in Chs 5 to 8. The general lex loci damni rule for torts in Art 4.1 (4.21–4.74 below) is also focused on the position of the victim and, to this end, may be said to serve the objective of protecting consumers.
14 For comparative surveys of European tort law, see C van Dam, European Tort Law (2004); C von Bar, The Common European Law of Torts, 2 volumes (1998, 2000); W van Gerven, Tort Law (Ius Commune Series) (2001). For other non-contractual obligations, see D Johnston and R Zimmermann (ed) Unjustified Enrichment: Key Issues in Comparative Perspective (2002); C von Bar, Benevolent Intervention in Another’s Affairs (2005); J Beatson (ed), Cases, Materials and Texts on Unjustified Enrichment (Ius Commune Series) (2003).
15 In particular, the Study Group for a European Civil Code chaired by Professor Christian von Bar of the University of Osnabrück (<http://www.sgecc.net/> and its rival in the present area of study, the European Group on Tort Law (<http://www.egtl.org/>). Also C von Bar, Common European Law, n 14 above, vol 1, Part 4.
18 C von Bar et al. (eds), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (2008), available at <http://www.law-net.eu/en_index.htm>.
21 Commission Proposal for the Rome II Regulation (1.69–1.70 below), 12.
22 C van Dam, n 14 above, 8.
23 Opinion 01/03 on the Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition of judgments in civil and commercial matters  ECR I-1145, discussed at 16.43 below.
27 Most recently, cross-border environmental damage (C Bernasconi, ‘Civil liability resulting from transfrontier environmental damage: a case for the Hague Conference?’ Preliminary document No 8 of May 2000, available at <http://www.hcch.net/upload/wop/gen_pd8e.pdf>) and unfair competition (Permanent Bureau of the Hague Conference, ‘Note on Conflicts of Laws on the Question of Unfair Competition’, Preliminary Document No 5 of April 2005, available at <http://www.hcch.net/upload/wop/gen_pd5c.pdf>.
28 For other surveys of the Member States’ former rules, see T Kadner Graziano, La responsabilité délictuelle en droit international privé européen (2004); K Kreuzer in A Malatesta (ed), The Unification of Choice of Law Rules on Torts and Other Non-Contractual Obligations in Europe (2006), 46–9 and the (then 15) Member States’ responses to the questionnaire circulated by the Commission in 1998 (Council document 12544/98 [11.11.1998]).
29 Comprising, for these purposes, the separate legal systems of (1) England and Wales, (2) Scotland, and (3) Northern Ireland.
30 Characterization of an issue as an issue relating to tort or delict being a matter for the law of the forum: Private International Law (Miscellaneous Provisions) Act 1995 (PILA (UK)), s 9(2)).
31 Ibid, s 10. Defamation claims were excluded from the scope of PILA (UK) and the double actionability rule continues to apply to such claims (s 13) (3.222–3.224 below).
32 For torts committed in the UK, the practice of the English courts had been to apply English law (Szalatnay-Stacho v Fink  KB 1 (EWCA)). The PILA (UK) probably also applies to these torts, although its drafting in this regard is highly unsatisfactory (see s 9(6) and the commentary in Sir L Collins et al. (eds), Dicey, Morris & Collins: The Conflict of Laws (14th edn, 2006) (Dicey, Morris & Collins), para 35-020).
33 Boys v Chaplin  AC 356 (UKHL); L Collins et al. (eds), Dicey & Morris on The Conflict of Laws (12th edn, 1993), Rule 203(1) and commentary.
34 Red Sea Insurance Co Ltd v Bouygues SA  1 AC 190 (PC). For the position in Scotland, see E Crawford and J Carruthers, International Private Law in Scotland (2nd edn, 2006), para 16-05.
35 Any possibility of renvoi is excluded by PILA (UK), s 9(6).
37 Morin v Bonhams & Brooks Ltd  EWCA Civ 1802;  1 Lloyd’s Rep 702,  (Mance LJ, EWCA).
39 Ibid, s 12(1). A (non-exhaustive) list of the factors that may be taken into account is set out in s 12(2).
40 Morin v Bonhams & Brooks Ltd, n 37 above, ; Trafigura Beheer BV v Kookmin Bank Co  EWHC 1450 (Comm);  2 Lloyd’s Rep 455 (Aikens J, EWHC).
43 Harding v Wealands  UKHL 32;  2 AC 1 (14.19 below). In contrast, identification of the recoverable heads of damage is a matter for the lex causae (Boys v Chaplin, n 33 above).
44 Dicey, Morris & Collins, Rule 230. For the position in Scotland, see E Crawford and J Carruthers, n 35 above, para 16–31; Baring Bros & Co v Cunninghame DC, 1996 GWD 25-1405; Restitution L Rev §190 (Court of Session) (noted J Bird  LMCLQ 182; R Stevens (1997) 113 LQR 249; A Dickinson  Restitution L Rev 66). For commentaries on the pre-existing rules of applicable law for unjust enrichment claims under English law, see e.g. J Bird and R Stevens, ch 3 and 5 in F Rose (ed), Restitution and the Conflict of Laws (1995); G Panagopoulos, Restitution in Private International Law (2000); A Burrows, The Law of Restitution (2nd edn, 2002), 608–25; A Briggs, ‘The conflict of laws and restitutionary issues: misappropriated and misapplied assets and the conflict of laws’, paper presented at the conference on Restitution in Commercial Law held at the Faculty of Law, University of New South Wales from 3–5 August 2007.
45 Barros Mattos Junior v Macdaniels Ltd  EWHC 1323 (Ch);  ILPr 630, , .
46 The Courts of Equity and Common Law were combined as a result of the Judicature Acts 1873–1875, but the law applied by those courts survived subject to the proviso that rules of equity should prevail in case of conflict (a rule now contained in Supreme Court Act 1981, s 49).
50 e.g. Rickshaw Investments Ltd v Baron von Uexkull  1 SLR 377 (Singapore Court of Appeal) (breach of fiduciary duty).
51 e.g. Douglas v Hello! Ltd (No 3)  EWCA Civ 595;  QB 125,  (EWCA) (a questionable characterization of a claim for breach of confidence).
52 e.g. Base Metal Trading Ltd v Shamurin  EWCA Civ 1316;  1 WLR 1157, – (Tuckey LJ), – (Arden LJ) (equitable duty of company director; noted A Dickinson (2005) 121 LQR 374 and discussed at 3.162–3.169 below).
53 Loi du 16 Juillet 2004 portant le Code de droit international privé. An English translation is available at <<http://www.ipr.be/data/B.WbIPR[EN].pdf>. Also F Rigaux and M Fallon, Droit International Privé (2005), 917–63 and, more generally, A Fiorini, ‘The Codification of Private International Law: The Belgian Experience’ (2005) 54 ICLQ 499; P Wautelet, ‘Le nouveau droit international privé belge’ (2005) Droit bancaire et financier 111.
54 See Art 17 relating to States with more than one legal system.
55 Art 99§2, sub-rule 1, apparently giving a choice between the law of the State in which the act leading to the damage and the law of the State in which the damage occurred or is likely to occur, unless (in the latter case) the person liable proves that he could not have foreseen the damage would occur in that State.
56 Ibid, sub-rule 2, designating the law of the State in which the damage occurred or is likely to occur.
57 Ibid, sub-rule 3, designating (for damage to assets or persons only) the law of the State in which the damage occurred or is likely to occur.
58 Ibid, sub-rule 4, designating the law of the State in which the injured person has his habitual residence at the time that the damage occurs.
59 Ibid, sub-rule 5, deferring to the rules of applicable law contained in the Hague Traffic Accidents Convention.
61 Ibid, Art 101. Such choice is, in any event, without prejudice to the Hague Traffic Accidents Convention and the rights of third parties.
62 Ibid, Art 104§1. For obligations resulting from the payment of someone else’s debt, the (rebuttable) presumption lies in favour of the law governing the debt.
64 Ibid, Arts 20, first para and 21.
65 i.e. rules which apply irrespective of the law otherwise applicable.
66 Ibid, Art 20, second para.
68 Code Civil (as amended). Art 3, first sentence (within the preliminary section dealing with the application of statutes) provides ‘Statutes relating to public policy and safety are binding on all those living on the territory’.
69 Cour de cassation, Ch civ, 25 May 1948 (Lautour).
70 Cour de cassation, 1ère Ch civ, 14 January 1997 (Gordon and Breach Science Publishers).
71 Cour de cassation, 1ère Ch civ, 11 May 1999 (Société Mobil North Sea).
73 According to a decision of the Cour de cassation, 1ère Ch civ, 7 March 2000 (Torfwerke), the Product Liability Convention applies whether the obligation is properly characterized as contractual or non-contractual.
74 Cour de cassation, 1ère Ch civ, 1 June 1976 (Luccantoni).
75 Also C W Fröhlich, The Private International Law of Non-Contractual Obligations According to the Rome II Regulation (2008).
76 Einführungsgesetz zum Bürgerlichen Gezetzbuch (EGBGB), as amended. The applicable law regime for non-contractual obligations was substantially amended in 1999. Previously, both the law of the State where the person liable acted (Rechts des Handlungsorts) and the law of the State where the results of that action came into effect (Recht des Erfolgsorts) were equally applicable. According to this principle, known as the Günstigkeitsprinzip, the injured person had the opportunity to choose between two legal regimes and decide which was more convenient. If he did not make a choice, it was up to the court to decide which law should apply (Bundesgerichtshof 23.6.1964 NJW 1964, p 2012). For comment on the 1999 amendments to the EGBGB, see M Reimann ‘Codifying Torts Conflicts: The 1999 German Legislation in Comparative Perspective’ (1999) 60 Louisiana L Rev 1297; P Hay, ‘From Rule-Orientation to “Approach” in German Conflicts Law: the Effect of the 1986 and 1999 Codifications’ (1999) 47 AJCL 633; W Kennett (2000) 49 ICLQ 502.
77 EGBGB, Art 40(1), second sentence. The election (Bestimmungsrecht) must be made before the end of the first hearing (German Civil Procedure Code (Zivilprozessordnung or ZPO), §275) or written pre-trial proceeding (ZPO, § 276) in the court of first instance. Art 40(1) applies analogously to claims arising from the adverse effects of emissions from real estate (Art 44).
81 C W Fröhlich, n 75 above, 82–3, 95.
91 Compare, for example, s 9(6) of the PILA (UK) and Art 16 of the Belgian Code of Private International Law as well as Art 24 of the Rome II Regulation (3.41–3.43 below).
93 Ibid, Arts 3(1) and 4(2).
94 Law of 31 May 1995, no 218 ‘Riforma del sistema italiano di diritto internazionale privato’. An English translation is contained in M Beltramo, The Italian Civil Code and Complementary Legislation (1991, looseleaf), Appendix X.
95 Italian Civil Code (Codice Civile), Arts 2043ff.
96 See the response of the Italian delegation to the questionnaire circulated by the Commission in 1998 (Council document 12544/98 [11.11.1998], 6, 14).
97 Law 218/1995, Art 63 giving a choice to the injured person between the place of domicile or management of the manufacturer or the place of purchase of the product, unless the manufacturer proves that the product was introduced into the market at that place without his consent.
98 Ibid, Art 24, designating the national law of the person concerned to govern the existence and content of the fundamental rights of the person (including, e.g., privacy and reputation), the legal consequences of infringement being governed by the law applicable under Art 62.
99 Italian Civil Code, Arts 2028ff.
100 In such case, the foreign law in question will (if possible) be applied with reference to other criteria applicable to the same situation, failing which Italian law will apply.
102 ‘Territory’ is widely defined by WCOD, Art 1 to include (a) installations on the continental shelf over which a State exercises sovereign rights, and (b) vessels and aircraft registered by that State or, in default or registration, belonging to a national of that State.
105 Ibid, Art 4(1). By Art 4(2) this rule does not apply to acts aimed at a single competitor. Art 4(1) may also be displaced by the law governing the relationship of the wrongdoer and victim in accordance with Art 5.
110 For more detailed analysis, see H Verhagen, ‘Ongerechtvaardigde verrijking’ in S Kortmann et al. (ed), Op recht (liber amicorum Struycken) (1996), 367–401.
111 HR 23 February 1996, NJ 1997, 276 (Total Liban/Blue Aegean Shipowners).
112 See the response of the Dutch delegation to the questionnaire circulated by the Commission in 1998 (Council document 12544/98 [11.11.1998], 26).
113 Código Civil español of 24 June 1889 (as amended). For an English translation, see J Romanach, Civil Code of Spain (1994). Also A Calvo Caravaca, Derecho Internacional Privado (2004), vol I, 693 and following; M Amores Canradi, Comentario del codigo civil (1993), 127–30.
114 See the response of the Spanish delegation to the questionnaire circulated by the Commission in 1998 (Council document 12544/98 [11.11.1998], 72).
115 Ibid, 49. Note also the comments (ibid, 17 and 79) concerning the trend in the case law of the Supreme Court towards the application of (substantive) rules of contractual liability to situations of non-contractual liability.
118 Ley 3/1991 de Competencia Desleal, Art 4.
119 See, in particular, NJA 1933 s 364; NJA 1969 s 163 (both Supreme Court of Sweden).
120 See the response of the Swedish delegation to the questionnaire circulated by the Commission in 1998 (Council document 12544/98 [11.11.1998], 7, 10).
121 The 1969 decision of the Supreme Court of Sweden referred to above (the so-called ‘Cronsioe case’).
123 Bogdan, Svensk internationell privat- och processrätt, (6th edn, 2004), 280.
124 See the comments of the Swedish delegation in Council document 9009/04 ADD 8 [18.5.2004], 15.
126 Council document 12544/98, 31.
128 Council document SN 2852/04 ADD 5 [9.9.2004], 3–4.
129 Loi fédérale sur le droit international privé du 18 décembre 1987 (as amended). An English translation is available at <http://www.umbricht.ch/pdf/SwissPIL.pdf>. For a commentary in English, see A Imhoff-Scheir and P M Patocchi, Torts and Unjust Enrichment in the New Swiss Conflict of Laws (1990).
131 Art 133(b), sub-rule 1.
134 Ibid, Art 134, deferring to the rules of applicable law contained in the Hague Traffic Accidents Convention.
135 Ibid, Art 135, sub-rule 1, giving the injured party a choice between (a) the law of the State in which the person responsible has his place of business/habitual residence, and (b) the law of the State in which the product was purchased, unless the person responsible proves that the product was marketed in that State without his consent. By sub-rule 2, awards in such claims are limited to the amount that would have been awarded under Swiss law.
136 Ibid, Art 136, designating the law of the State in whose market the effects occur or (if the act affects a single competitor) the law of the State where the injured party has his place of business, subject (in either case) to displacement under Art 133, sub-rule 3 (text to n 133 above) in the case of an existing relationship between the parties.
137 Ibid, Art 137, designating the law of the State in whose market the direct effects of the restraint on the injured party occur, but again limiting awards to the amount that would have been awarded under Swiss law.
138 Ibid, Art 138, giving the injured party a choice between (a) the law of the place where the immovable is situated, and (b) the law of the place in which the effects of the damaging emissions occur.
139 Ibid, Art 139, sub-rule 1, giving the injured party a choice between (a) the law of the State in which he has his habitual residence, to the extent that the person responsible should have foreseen that the infringement would produce effects in that State, (b) the law of the State in which the person responsible has his habitual residence/place of business, and (c) the law of (another) State in which the effects of the infringement occur, again to the extent that the person responsible should have foreseen such effects. By sub-rule 2 the right to reply shall be governed exclusively by the law of the State in which the publication appeared or from which the radio or television programme was broadcast. By sub-rule 3, the rule also applies to claims concerning personal data and its processing.
143 Ibid, Arts 17 and 18.
147 Giuliano, Lagarde & Van Ysselt Report, 1–8 and the final Report of Professors M Giuliano and P Lagarde on the 1980 (Rome) Convention on the law applicable to contractual obligations (Giuliano & Lagarde Report) (OJ C282, 1 [31.10.1980], 4–7).
148 For an English translation of the text of the convention, concluded on 11 May 1951, see (1951) 1 ICLQ 426. Also E M Meijers, ‘The Benelux Convention on Private International Law’ (1953) 2 AJCL 1. Also the later Benelux treaty concerning a uniform law on private international law (3 July 1969), as to which see K H Nadelmann, ‘The Benelux Uniform Law on Private International Law’ (1970) 18 AJCL 406.
149 Report of Mr P Jenard on the Brussels Convention (Jenard Report) (OJ C59, 3 [5.3.1979]). For the text of the original Brussels Convention, see OJ L299, 32 [31.12.1972]; for the text of the Convention as amended, see OJ C27, 1 [29.1.1998].
150 Giuliano & Lagarde Report (OJ C282, 4 [31.10.1980]).
151 Minutes of the meeting of experts, 26–28.2.1969, quoted in Giuliano & Lagarde Report, ibid, 4.
156 Giuliano & Lagarde Report, 5.
157 Commission document XIV/398/72.
158 Commission document XIV/408/72 (French original; provisional English version also available).
159 For comment, see the materials cited in Appendix 6 under ‘Historical Background’.
160 1972 preliminary draft convention, Art 10. The expression ‘un fait dommageable’ appears in the English translation of the Giuliano Lagarde & van Ysselt Report as ‘an event entailing damage’
161 As the Giuliano Lagarde & van Ysselt Report noted (at 49), this was the same term used in the (French) version of Art 5(3) of the 1968 Brussels Convention (jurisdiction in matters relating to tort etc.) (n 166 below).
162 1972 preliminary draft convention, Art 13.
164 1972 preliminary draft convention, Art 10, para 1.
165 Ibid, Art 10, para 2. The relevant connection should normally be based on a connecting factor common to the victim and the author of the injury or, as the case may be, between the victim and a third party allegedly responsible for the acts of the author (Art 10, para 3). Also Arts 11 (scope of applicable law) and 12 (‘rules issued on grounds of security or public order’).
166 Giuliano, Lagarde & van Ysselt Report, 50. Subsequently, the Court of Justice held, in its leading decision on Art 5(3) of the Brussels Convention (matters relating to tort, delict, or quasi-delict), that the term ‘fait dommageable’ (in the English version, ‘harmful event’) was capable of referring both to the event giving rise to damage and to the resulting damage (Case 21/76, Handelskwekerij G J Bier BV v Mines de Potasse d’Alsace SA  ECR 1735, paras 13–17, discussed at 4.02 below).
167 K Siehr, ‘General Report on Non-Contractual Obligations’ in O Lando et al. (eds), European Private International Law of Obligations (1975), 62.
168 1972 preliminary draft convention, Art 13.
170 Ibid, Art 14. Also Arts 19 (presumptions, burden, and mode of proof), 21 (exclusion of renvoi), 22 (public policy), 24 (universal application).
171 See the materials cited in Appendix 6 under ‘Historical Background’.
172 Giuliano & Lagarde Report, 7.
173 OJ L266, 1 [9.10.1980] (Rome Convention). Also the extract from the Commission opinion on the draft of that Convention quoted at 3.125 below, regretting that it had not been possible to cover non-contractual obligations as well.
174 The earliest reference to the ‘Rome II’ terminology found by the author is in a Council Presidency communication in July 1998 (Council document 9755/98 [15.7.1998]), but the usage may originate from within the Commission.
175 Treaty on European Union (TEU) (OJ C191, 1 [29.7.1992]), Art K.1(6) referring to ‘judicial cooperation in civil matters’.
176 OJ C319, 1 [26.10.1996], para 3.1(c).
177 EC Treaty, Title IV and, in particular, Arts 61, 65(c), and 67.
178 Treaty of Amsterdam, Protocol No 5 (Denmark: Border Controls and Defence).
179 Treaty of Amsterdam, Protocol No 4 (United Kingdom and Ireland: Visas, Asylum etc).
180 Council document 12544/98 [11.11.1998].
181 Council document 9755/98 [15.7.1998].
183 GEDIP proposal, Arts 3–4.
191 Ibid, Art 4(c). Also Art 5 (scope of applicable law) and Art 6 (direct action against the insurer).
197 Ibid, Art 8. Also Arts 2 (universal application), 9 (mandatory rules—third country and forum), 10 (rules of safety and conduct), 11 (subrogation), 12 (habitual residence), 13 (exclusion of renvoi), 14 (public policy).
199 S C Symeonides, n 9 above, 177. In Professor Symeonides’ view (at 217), the GEDIP proposal was ‘close to perfection’.
201 OJ C19, 1 [23.1.1999]. Also 1998 EU Bull No 1, point I.12.84.
202 Ibid, 10, confusingly referring to this measure as ‘Rome I’.
204 Presidency Conclusions, 15–16 October, para 33.
205 OJ C12, 1 [15.1.2001], 2, 6. The programme nevertheless made clear that ‘[i]t in no way prejudges work that will be undertaken in other areas under judicial cooperation in civil matters, particularly with regard to conflicts of law’ (ibid, 6).
206 Council document 11982/99 [9.12.1999]. Also Council document 10231/99 [28.7.1999].
207 Also Council document 11982/99, Arts 2 (universal application), 4 (areas not subject to territorial sovereignty), 14 (subrogation), 15 (right of direct action), 16 (‘safety and police regulations’), 18 (burden of proof), 19 (mandatory rules of the forum), 20 (public policy), 21 (scope of applicable law), 22 (exclusion of renvoi).
212 Ibid, Art 11 contains a residual rule for ‘Remaining non-contractual obligations’ for which there is no equivalent in the Regulation in its final form (3.248 below).
213 Ibid, Art 3(1). However, by the square bracketed Art 3(3), it proposed that if injury is sustained by a person in more than one country, and proceedings are brought before the courts of the country in which the act or omission giving rise to injury occurred, the law of that country shall apply instead.
215 Council document 11982/99, Art 3A.
217 Council document 11982/99, Art 3B. Cf Regulation, Art 14.
218 Ibid, Art 5. Cf Regulation Art 5.
219 Ibid, Art 6. Cf Regulation Art 6.
220 Ibid, Art 1(h). Cf Regulation, Art 8.
223 Ibid, Art 1(b)–(g), (i). Cf Regulation, Art 1(2).
224 Council document 7563/1/00 REV1 [22.5.2000].
225 Following the Amsterdam Treaty, the Commission shared the right of initiative under Title IV with the Member States (EC Treaty, Art 67(1)).
226 An early draft dated 2 March 1999 appears on file.
227 As the E-Commerce Directive had not been adopted at the date of the note above, the reference may have been, for example, to the ‘Television without Frontiers Directive‘ (Directive (EC) No 97/36 (OJ L202, 60 [30.7.1997]). Also 16.23 below, n 45.
228 Council document 7975/00 [5.6.2000], 4.
229 Green Paper on the law applicable to non-contractual obligations, Commission draft, 18 January 2001.
233 Council document 5479/01 [9.3.2001], 4.
234 Directive (EC) No 2000/31 on certain legal aspects of information society services (OJ L178, 1 [17.7.2000], discussed at 16.12–16.16 below.
235 Council document 8398/01 [16.5.2001], 3.
237 Council document 8342/01 [27.5.2001], 9.
241 Preliminary draft proposal, Art 3(1) (‘… the law of the country in which the loss is sustained, irrespective of the country or countries in which the harmful event occurred and irrespective of the country in which the indirect consequences of the harmful event are sustained …’). Cf Regulation, Art 4(1) (‘… the law of the country in which the damage occurs irrespective of the country in which the event giving rise to damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur …’).
243 Ibid, Art 3(3). Cf Regulation, Art 4(3).
248 Ibid, Art 10(2), designating ‘the law of the country in which the enrichment takes place’.
249 Ibid, Art 10(3), designating ‘the law of the country in which the action takes place’.
251 Ibid, Art 11(1), subject to the rights of third parties, non-derogable rules of a country with which the situation is otherwise exclusively connected (Art 11(1)) and non-derogable rules of Community law in circumstances where ‘the other elements of the situation were located in one (sic) of the Member States of the European Community at the time when the obligation came into being’.
252 The latter only to the extent that such obligations arise out of their negotiable character (3.157 below).
253 Preliminary draft proposal, Art 1(2).
255 Many of the submissions can be accessed from the link set out in the previous note.
256 It is also worth noting that more than half of the published responses came from businesses or business organizations, and that UK legal practitioners (in particular) were more critical of the proposal than their continental counterparts. For the author’s initial reaction, see <http://ec.europa.eu/justice_home/news/consulting_public/rome_ii/andrew_dickinson_en.pdf> and, subsequently, ‘Cross-Border Torts in EC Courts—A Response to the Proposed “Rome II” Regulation’ (2002) 13 EBLR 367. Also V C Noirissat and E Treppoz, ‘Quelques observations sur l’avant projet de proposition de règlement du Conseil sur la loi applicable aux obligations non contractuelles “Rome II”’ (2003) Journal du Droit International 7.
259 OJ C80, 1 [10.3.2001].
260 EC Treaty, Art 67(5) introduced by Art 2(4) of the Treaty of Nice.
262 COM (2003) 427 final (Commission Proposal), 4–5. Particular aspects of this key document, reproduced in full in Appendix 2, will be considered, as appropriate, in the following chapters. For comment see the materials cited in Appendix 6 under ‘Commission Proposal’.
264 Also Commission Proposal, Arts 2 (universal application), 11 (scope of applicable law), 13 (rules of safety and conduct), 14 (direct action against insurer), 15 (subrogation and multiple liability), 16 (formal validity), 17 (burden of proof), 18 (assimilation to the territory of a State), 19 (assimilation to habitual residence), 20 (exclusion of renvoi), 21 (States with more than one legal system), 22 (public policy), 23 (relationship with other provisions of Community law), 25 (relationship with existing international conventions), 27 (entry into force and application of time).
265 Commission Proposal, Art 3(1). This change would appear to have been one of linguistic preference rather than substance, arising from difficulty in selecting an English term corresponding to the French ‘dommage’ (see the evidence given in January 2004 by Ms Claudia Hahn of the Commission to the House of Lords select committee considering the Rome II proposal (House of Lords’ European Union Committee, ‘The Rome II Regulation’, 8th Report of Session 2003–2004, HL Paper 66, answers to Q31–33)).
267 Commission Proposal, Art 4.
274 Ibid, Art 12(1). The rule preserving overriding mandatory rules of the forum (Art 12(2)) remained.
276 Commission Proposal, Art 1(1).
280 Cf Preliminary draft proposal, Art 1(2)(e), apparently no longer necessary in light of the specific restriction to civil and commercial matters (cf 3.271–3.279 below).
281 Cf Preliminary draft proposal, Art 1(2)(g).
283 Mario Tenreiro and Claudia Hahn, 21 January 2004 (HL Report, Evidence, 1–18).
284 The Hon Mr Lawrence Collins, William Blair QC (COMBAR) and the author, 11 February 2004 (HL Report, Evidence, 46–69).
285 Sir Peter North, 29 January 2004 (HL Report, Evidence, 19–30).
286 Alastair Brett (The Times), Santha Rasaiah (Newspaper Society), Clare Hoban (Periodical Publishers Association), and Glenn del Medico (BBC), 4 February 2004 (HL Report, Evidence, 31–45).
287 Lord Filkin CBE (Parliamentary Undersecretary of State), Oliver Parker (Legal Adviser), Louise Miller (Scottish Executive Justice Department), and Professor Paul Beaumont (University of Aberdeen) (HL Report, Evidence, 70–87).
288 Co-editor, Cheshire & North’s Private International Law (13th edn, 1999); Chair, Ministry of Justice Departmental Advisory Committee on Private International Law Matters (the North Committee).
289 Memorandum, para 20 (HL Report, Evidence, 21).
290 Senior editor, Dicey, Morris & Collins. At the time, a Justice of the High Court and now a Lord Justice of the Court of Appeal, England and Wales.
291 Memorandum, para 1 (HL Report, Evidence, 46).
292 HL Report, paras 184–5. For more detailed analysis, see HL Report, paras 66–79.
293 Deletion: Art 2 (universal application: see HL Report, para 191), Art 4 (product liability: para 194), Art 6 (unfair competition: para 195), Art 7 (violations of the environment: para 97), Art 9 (non-contractual obligations other than tort or delict: para 199), Art 14 (direct actions against insurers: para 201), Art 24 (non-compensatory damages: para 201). Deletion or revision: Art 8 (intellectual property: para 198); Art 12(1) (third country mandatory rules: para 201). Revision: Art 1(2)(d) (auditors’ liability: para 189); Art 1(2)(e) (trusts: para 190); Art 3 (general rules for torts: para 192); Art 6 (violations of privacy etc: para 196); Art 23 (relationship with other provisions of Community law: para 202). For more detailed analysis, see HL Report, paras 83–170. The Committee also criticized the UK Government’s decision in October 2003 to opt-in to the Rome II proposal (text to n 339 below and HL Report, paras 80–2).
294 Liberal Democrat, Yorkshire and the Humber (UK) since 1999. Mrs Wallis is a solicitor and currently holds the position of Vice President of the European Parliament.
295 Mrs Wallis was reappointed in September 2004. LIBE appointed Barbara Kudrycka MEP (Poland) as the draftswoman for its opinion on the Rome II proposal, which (as adopted on 17.5.2005 — EP document reference A6-0211/2005 FINAL [15.4.2005], 41–43) deals principally with issues relating to violations of privacy and rights relating to the personality, matters subsequently excluded from the scope of the Regulation.
296 EP document reference PE 338.502 [drafts dated 26.1.2004 (Part 1); 5.2.2004 (revised Part 1 and Part 2)].
297 EP document reference PE 338.465 [15.3.2004].
298 See, e.g., EP document references PE 338.465 [5.4.2004], PE 349.977v01-00 [11.11.2004], PE 349.977v02-00 [23–29.3.2005].
299 EP document reference A6-211/2005 FINAL [27.6.2005], 1–40 (EP 1st Reading Report).
300 51 of the 54 amendments tabled by the JURI Committee were adopted in plenary (Council document 10812/05). In addition (a) there was an oral amendment deleting the (expired) dates in Arts 26 and 27 of the Proposal, and (b) more significantly, the plenary adopted Amendments 56 and 57 tabled by the rapporteur concerning the law applicable to non-contractual obligations arising out of violations of privacy or rights relating to the personality, in preference to those put forward by the JURI Committee in its report.
301 OJ C157E, 371 [6.7.2006] (EP 1st Reading Position).
302 See also amendments in EP 1st Reading Position to Arts 1(1)–1(2) (material scope), 1(3) (relationship with Community legislation, replacing Commission Proposal, Art 23), 9 (unjust enrichment), 10 (negotiorum gestio), 11 (scope of applicable law), 25 (relationship with international conventions), 27 (review).
303 The Commission’s special rules for product liability (Commission Proposal, Art 4), unfair competition (ibid, Art 5), and violation of the environment (ibid, Art 7) were removed (for criticism, see, e.g. the papers presented by A Saraville, ‘The Law Applicable to Products Liability: Hopping Off the Endless Merry-Go Round’; C Honorati, ‘The Law Applicable to Unfair Competition’; and F Munari and L Schiano di Pepe, ‘Liability for Environmental Torts in Europe’ at a conference held in December 2004 at the University of Castellanza, reproduced in Malatesta, Unification, n 28 above, 107–26, 127–58 and 173–220 respectively). Against this, the rule concerning violations of privacy and rights relating to the personality was retained in modified form (EP 1st Reading Position, Art 5) and a new special rule was introduced for industrial action (EP 1st Reading Position, Art 6). See EP 1st Reading Report, 39.
304 Draft Report, Art 3 (EP document reference PE 349.977v01-00 [draft dated 11.11.2004]).
305 Cf Commission Proposal, Art 3(2).
306 EP 1st Reading Position, Art 4(3).
307 EP 1st Reading Report, 39.
308 EP document reference PE 349.977v02-00 [23–29.3.2005].
309 See the papers by S C Symeonides, ‘Tort Conflicts and Rome II: A View from Across’ published in H-P Mansel et al. (eds), Festschrift für Erik Jayme (2004), 935–54 and ‘Impromptu Notes on the Rapporteur’s Draft’; R J Weintraub, ‘Discretion Versus Strict Rules in the Field of Cross-Border Torts’, P J Borchers, ‘The Proposed “Rome II” Regulation and the US Experience in Tort Choice of Law’, to which links appear on the rapporteur’s website, <http://www.dianawallismep.org.uk/pages/Rome-II-seminars.html>.
310 Law Commission Working Paper No 87 and Scottish Law Commission Consultative Memorandum No 62, Private International Law: Choice of Law in Tort and Delict (HMSO, 1984), paras 4.35–4.54.
311 J Fawcett, ‘Is American Governmental Interest Analysis the Solution to English Tort Choice of Law Problems?’ (1982) 31 ICLQ 150, concluding (p 166) that ‘[i]nterest analysis has nothing to offer the English or Continental lawyer’.
312 EP 1st Reading Position, Art 2.
314 EP 1st Reading Position, Recital (9). Professor Fawcett (n 311 above, 165) suggests that ‘it would be hard to think of an approach which is less likely to produce uniformity of law than interest analysis’.
315 EP 1st Reading Report, 40.
316 EP 1st Reading Position, Art 4(4).
317 EP 1st Reading Report, 39. For discussion of the rejection of dépeçage within the Regulation, see 4.78–4.79.
318 EP 1st Reading Position, Art 3.
319 For discussion, see A Malatesta, ‘The Law Applicable to Traffic Accidents’ and M Bona, ‘Personal Injuries, Fatal Accidents and Rome II: Can the Law of the Country where the Victim Suffers Provide Full and Fair Compensation?’, papers from the December 2004 Castellanza Conference (n 303 above), reproduced in Malatesta (ed), Unification, n 28 above, 85–106 and 249–70 respectively. See also the proposal by the Swedish delegation in the Council’s Rome II Committee that the person sustaining damage be given the right to choose, as an alternative to the law of the place of damage, the law of the place in which the vehicle was registered (Council document SN 2852/04 [9.9.2004], 2–7).
320 The words in square brackets appear in Art 4(2), but do not appear in Art 7(2), of the EP 1st Reading Position.
321 See also EP 1st Reading Position, Art 7(1) giving Member States the option to apply the rules set out in the 1971 Hague Traffic Accidents Convention (n 25 above). On its face, the option was not limited to those States party to the Convention, although it appears that this was the rapporteur’s intention (EP 1st Reading Report, 40).
324 EP 1st Reading Position, Art 25(3).
325 ‘The Future “Communitarization” of the Choice of Law Rules on Non-Contractual Obligations’ in Malatesta, Unification, n 28 above, 3–4.
326 A reference, no doubt, to the rejection of the proposed European Constitution by French and Dutch voters in May/June 2005.
327 Under EC Treaty, Arts 257 to 262, the EESC, which consists of representatives of economic and social components of society (including producers, workers, professionals, and consumers), has an advisory role in the legislative process.
328 OJ C241, 1 [28.9.2004] (EESC Opinion).
329 EESC Opinion, para 3 (2.93 below).
334 OJ C289E, 68 [28.11.2006] (Council Common Position) (1.88 below).
335 2003 (2nd part) Italy; 2004 Ireland, Netherlands; 2005 Luxembourg, United Kingdom; 2006 Austria, Finland.
336 For snapshots as to the state of play at particular points in the process, see the drafts produced by the following Presidencies: Ireland/Netherlands (Council document 10173/04 [14.6.2004]); Netherlands (Council document 12746/04 [27.9.2004]); Netherlands/Luxembourg (Council document 16231/04 [20.12.2004]); UK/Austria (Council document 16027/05 [22.12.2005]); Austria (Council document 8417/06 [21.4.2006]).
337 Hereafter, the ‘Rome II Committee’.
338 Council document 14010/03 [17.12.2003].
339 Council document 13903/03 [27.10.2003].
340 Council document 14199/03 [30.10.2003].
342 Council document 7015/04 [2.3.2004] (partly accessible).
344 Council document CM1222/04 [26.3.2004].
345 Council document 9009/04 + ADD1-17 [29.4.2004–2.6.2004].
346 Council document 10173/04 [14.6.2004].
347 Council document 12746/04 [27.9.2004].
349 OJ C53, 1 [3.3.2005].
350 Council document 16231/04 [20.12.2004].
351 Meetings of the Council’s Rome II Committee were held in September, October, and November 2004. Minutes of these meetings have not been published, but the Commission representatives prepared notes.
352 Council document 16231/04, Art 1(1a).
355 Ibid, Art 7, including a proposal that the special rule be deleted.
356 Council documents 11515/05 [27.7.2005], 13001/05 [10.10.2005] and 15643/05 [22.12.2005]. The EP 1st Reading Position is described at 1.75–1.76 above.
357 Council document 16027/05 [22.12.2005].
360 COM (2006) 83 final (Commission Amended Proposal), reproduced in Appendix 3.
361 The Commission instead proposed a limited exclusion of ‘violations of privacy and of personal rights by the media’ (Commission Amended Proposal, Art 1(2)(h)).
362 For a summary of the EP’s position on these points, see 1.75–1.76 above.
363 Council documents 5864/06 [3.2.2006] and 6165/06 [10.2.2006].
364 Council document 6490/06 [23.2.2006], 3 referring to an ‘exchange of views’; Council document 6598/06 [4.5.2006], 4.
365 Council document 7432/06 [16.3.2006].
366 Council document 7709/06 [3.5.2008].
367 Council documents 8076/06 and 7629/06 [both 10.4.2006].
368 Council documents 8416/06 and 8417/06 [both 21.4.2006]. Also Council document 8417/06 ADD 1 [26.4.2006] setting out further amendments in light of the work of COREPER.
369 Council document 9033/06 [10.5.2006], 3 and Council document 9417/06 [19.5.2006]. Also Council documents 8417/06 ADD 2 [2.5.2006] (final amendments), 8498/06 [2.5.2006] and 9143/06 [19.5.2006] (text, with recitals).
370 OJ C289, 68 [28.11.2006] (Common Position), with accompanying statement of reasons (originally Council document 9751/7/06 REV 7 ADD 1 [25.9.2006]) and annex linking the provisions of the Commission Proposal to those of the final Regulation. The statement of reasons and annex are reproduced in Appendix 4.
371 Common Position, Art 9. See the Joint Declaration of Latvia and Estonia and the statement by the Cypriot and Greek Delegations expressing reservations about Art 9, reproduced at 9.10–9.11 below.
372 Statement of reasons accompanying the Council’s Common Position (OJ C289E, 76 [28.11.2006]).
373 Common Position, Art 1(2)(g).
375 Cf Commission Amended Proposal, Art 13(2).
376 Commission Communication concerning the Council’s Common Position (COM (2006) 566 final [27.9.2006]), 3. The Commission was, at that time, consulting on its Green Paper on ‘Damages actions for breach of EC antitrust rules’ (COM (2005) 672 final), as to which see 6.05–6.06 below.
377 Attributed to T H Palmer, Teacher’s Manual (1840).
378 EP legislative resolution on the Council Common Position (OJ C244E, 194 [18.10.2007]) (EP 2nd Reading Position). Also the 2nd reading recommendation of the JURI Committee (EP document reference A6-0481/2006 FINAL [22.12.2006]) (EP 2nd Reading Recommendation).
379 EP 2nd Reading Position, Recital (14), discussed at 3.24–3.28 below. In her draft Recommendation for 2nd Reading (EP document reference PE 378.852v01-00 [8.11.2006]), the rapporteur had proposed a linked amendment (16) to the general rule requiring the court seised to have regard to ‘the need for certainty, predictability and uniformity of result, the protection of legitimate expectations and the policies underlying the foreign law to be applied and the consequences of applying that law’. That proposed amendment was not carried forward into the JURI Committee’s final Recommendation. So ended the rapporteur’s dalliance with ‘governmental interest analysis’, 1.75 above.
380 EP 2nd Reading Position, Amendment 17.
381 The JURI Committee’s re-statement of its proposal to delete this rule (EP 2nd Reading Recommendation, Amendment 18) was rejected in the plenary session.
382 EP 2nd Reading Position, Art 7.
383 EP 2nd Reading Position, Recitals (35) and (37). The linked substantive provision requiring the court itself to establish the foreign law of its own motion (EP 2nd Reading Recommendation, Amendment 21) was defeated in the plenary session, but curiously the recitals remained. A second provision proposed by the rapporteur, requiring litigants to notify the court of the law or laws which they considered applicable (draft Recommendation for Second Reading (EP document reference PE 378.862v01-00 [8.11.2006])), was rejected by the JURI Committee.
387 i.e. Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, n 263 above.
388 For the full text of his address, see the hyperlink at n 384 above.
389 ‘I firmly believe that to accept a provision that cannot obtain even the slightest consensus between the institutions, as several members of the Committee on Legal Affairs have stated, would be to reopen a can of worms.’ The original, French text refers more vividly to la boîte de Pandore.
390 The Commission’s March 2007 Opinion on the EP 2nd Reading Position (n 392 below) stated bluntly that the issue of damages ‘is a complex point of substantive civil law, and Rome II is not the proper place for addressing it’ (COM (2007) 126 final [14.3.2007], 4).
391 For further discussion of this issue, see 14.26–14.32 below.
392 Commission Opinion on the European Parliament’s amendments to the Council Common Position (COM (2007) 126 final [14.3.2007]).
393 Council document 8569/07 COR1 [4.6.2007].
394 An ugly and ill-conceived term, which is also frequently spelled in official documents as ‘trialogue’. The word ‘dialogue’, from which it appears to derive, is itself derived from the Greek διάλογος (‘conversation’ from διά meaning ‘through, across’) and has nothing to do with the Greek δι- (‘twice’) (R W Burchfield (ed), New Fowler’s Modern English Usage (3rd edn, 1996), 210). The Oxford English Dictionary defines ‘trilogue’ as ‘a group of three words or sayings’. Unfortunately, it seems that we are stuck with the term as a shorthand for tripartite meetings within the conciliation process (see Joint Declaration of the European Parliament, Council and Commission on practical arrangements for the co-decision procedure (OJ C143, 3 [30.6.2007])).
395 Delegation led by Mechtild Rothe (Vice-President), Giuseppi Gargani (Chair, JURI Committee), and Diana Wallis.
396 See Council documents DS 94/07 [6.2.2007], 6309/07 [13.2.2007], 7318/07 [19.3.2007], and 8241/07 [25.4.2007] and the EP working document dated 27 February 2007 (EP document reference PE 386.319). For later updates as to the progress of discussions, see EP documents references PE 386.589 [21.3.2007], PE 388.454 [18.4.2007], and Council documents 8215/07 [5.4.2007], 8408/07 [13.4.2007], 8552/07 [17.4.2007], SN 2494/07 [30.4.2007], 9137/07 [7.5.2007], and 9457/07 [10.5.2007].
397 See Council document 9457/07 [10.5.2007]. As appears from this document, the EP had, by this time, conceded the need for a special rule concerning unfair commercial practices/competition (although the text remained to be agreed) and appeared to have accepted that questions of pleading and proof of foreign law and compensation for traffic accident victims would be addressed in the review clause.
398 Chaired by Mechtild Rothe, Vice-President of the European Parliament, and Brigitte Zypries, German Justice Minister.
399 See Press Release (Council document 9713/07 [16.5.2007]). The co-Chairmen of the Conciliation Committee formally confirmed that agreement on 25 June 2007 (EP document reference PE-CONS 3619/07).
400 Regulation, Art 30. See the Commission’s statements on the review clause and on the treatment of foreign law appended to the Regulation in its final form at OJ L199, 49 [31.7.2007].
402 See the report of the EP JURI Committee on the joint text approved by the Conciliation Committee for a Regulation on the law applicable to non-contractual obligations (EP document A6-0257/2007 [28.6.2007]) (EP 3rd Reading Report).
403 See voting record in Council document 11313/07 [28.7.2007]. As to the position of Latvia and Estonia, see n 371 above.
407 EC Treaty, Art 254(1), there being no entry into force date specified in the Regulation. For further discussion of this point, see 3.315–3.324 below.
408 The Regulation on the law applicable to contractual obligations (the so-called ‘Rome I’ Regulation) was adopted on 17 June 2008 and will apply to contracts concluded after 17 December 2009.
409 Following the Commission’s White Paper on damages in anti-trust cases (6.09 below).
410 Regulation, Art 30(1)(i).
411 Ibid, Art 30(1)(ii).