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Part I Introductory Topics, 1 Background

From: The Rome II Regulation: The Law Applicable to Non-Contractual Obligations

Andrew Dickinson

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

Rome Convention — Rome I Regulation and choice of law — Applicable law — Interpretation and trade practices — Damages — Scope of the law applicable under the Rome II Regulation — Tort/delict — Applicable law to non-contractual obligations — Unjust enrichment — Unfair competition — Environmental damage — Industrial action — Product liability — Public policy and non-contractual obligations — Non-contractual obligations — Scope of applicable law — Contractual obligations

(p. 3) Background

  1. A. Introduction 1.01

  2. B. The Pre-Regulation Position: A Comparative Overview 1.08

  3. C. The Road to Rome II 1.44

  4. D. Conclusion: End of the Road? 1.97

(p. 4) A. Introduction

1.01  The EC Regulation on the law applicable to non-contractual obligations (Rome II)1 was adopted on 11 July 2007 and will apply2 from 11 January 2009.3 When, in September 1967, the Belgian permanent representative to the EEC, Joseph van der Meulen, wrote to the Commission urging it to consider possible measures to unify conflict of law rules in the (then) six Member States,4 he can scarcely have foreseen that his letter would trigger a diplomatic and legislative process stretching over thirty years and resulting in a legislative instrument re-writing private international law rules in twenty-six European States.5 Indeed, the letter emphasized an element of urgency in his proposal, noting the prospect of imminent reforms in some Member States with the consequent risk of crystallizing existing differences. Moreover, while Ambassador van der Meulen and his colleagues might well have anticipated that the co-ordination of rules of applicable law, particularly those for torts and other non-contractual obligations, would not be free from political difficulty,6 the adoption of the Rome II Regulation undoubtedly has a wider legal and political significance than any multilateral convention of the kind that they contemplated could have had. As the first piece of Community legislation laying down uniform rules of applicable law of a general nature, the Regulation not only laid down a marker for later instruments in this area7 but also tested the (p. 5) legislative competence of the Community in the field of civil justice.8 Thus, in the view of one commentator:9

Rome II is a dramatic step in the federalization or ‘Europeanization’ of private international law in the EU member states, a step that has been aptly characterised as the European conflicts revolution.

1.02  From a political viewpoint, the legislative process highlighted tensions between the Commission Directorates General as to the relationship between Community law and private international law, as well as between the Community organs participating in the legislative process as to the structure and content of the instrument. The end product marks the ascendancy of the Council and the Commission positions over that of the European Parliament,10 and is closer to the aspirations of private international law ‘traditionalists’ than those advocating a ‘country of origin’11 approach. At the same time, consumer protection and other policy objectives of the Community have shaped the final form of the Regulation, most obviously in the formulation of tailored rules of applicable law for specific torts.12

1.03  The Regulation, and the Rome I Regulation with which it is closely linked,13 will likely also play a significant role in the debate as to whether the substantive law of obligations in the Member States should be harmonized by a Community instrument. On the one hand, as instruments that use the techniques of private international law to promote greater harmony in the Member States’ widely diverging14 systems of civil liability for contractual and non-contractual obligations, the two Regulations might be thought to (p. 6) apply a (welcome) brake to the ambitions of those who advocate a European civil code.15 On the other hand, the creation of uniform applicable law rules for torts, unjust enrichment and other civil obligations (and the accompanying interpretative competence of the European Court of Justice16 and external Community competence17) will undoubtedly cast a greater light on the common ground among, and differences between, civil liability rules in the Member States. Furthermore, if the two Regulations do not prove successful in their objective of securing greater predictability in the outcome of litigation before Member State courts, the clamour for a root and branch reform of the law of obligations within the European Community will no doubt increase, with ominous consequences for the independence of the English common law and other Member State legal systems.

1.04  In January 2008, the Study Group for a European Civil Code (chaired by Professor Christian von Bar) published an ‘interim outline’ version of the ‘Draft Common Frame of Reference’ (DFCR) containing ‘principles, definitions and model rules of European private law’.18 Despite its unambitious title, it is a prototype European civil code. Books V to VII of the DFCR deal, respectively, with benevolent intervention in another’s affairs, noncontractual liability arising out of damage caused to another, and unjustifi ed enrichment. These three topics cover most of the subject matter of the Rome II Regulation and, if adopted, would represent a seismic shift in European private law. Whatever the future may hold, even the staunchest opponents of the civil code movement must admit a grudging respect for the tenacity of its disciples and of Professor von Bar, its high priest.

1.05  While maintaining, at least for the time being, the diversity of European legal culture, the Regulation may influence the future development of Member States’ systems of non-contractual liability in a different way. As will be seen, its outlook, particularly the general rule for torts19 and the special rules for product liability and environmental damage,20 approaches (p. 7) the problem from the perspective of the ‘victim’ and favours the philosophy that tort law, in particular, should take as its primary objective the distribution of loss among members of society, rather than the regulation of conduct.21 As a consequence, it may be supposed that, in cross-border situations, a Member State’s rules will more often be applied to its own residents (whether by its own courts or by those of another Member State) as persons suffering, rather than causing, injury. This in turn may focus political minds on increasing the level of protection afforded to the injured party. In this respect, the common law systems of the UK and Ireland have further to travel than their continental cousins. As Professor van Dam notes:22

France and England represent two opposite policy approaches to tort law. Whereas French tort law primarily focuses on compensation and the principle of distributive justice (strict liability), the predominant focus of English tort law is on conduct regulation and the principle of corrective justice (fault liability). These differences are particularly, though not solely, recognizable in the area of accident law and in the way that the liability of public authorities is dealt with. German tort law takes a somewhat intermediate position; on the one hand it formally and dogmatically often applies the tools of conduct regulation (fault liability), but at a policy level it is strongly inspired by the principle of distributive justice.

1.06  Finally, the Regulation has a broader international significance. First, in crystallizing the external competence of the Community (and excluding that of the participating Member States) to negotiate and conclude treaties within its area of application.23 Secondly, as a possible trigger for renewed efforts to conclude an international treaty on the law applicable to torts and other non-contractual obligations, most obviously under the auspices of the Hague Conference on private international law. The issues of jurisdiction and applicable law with respect to torts were suggested as items to be placed on the agenda of the Hague Conference in the late 1960s, an option that was investigated by the Permanent Bureau and the Special Commission.24 At that time the Special Commission concluded that ‘the field of torts was too wide and heterogeneous to be dealt with in one single convention’, and recommended that the Conference focus, first, (p. 8) on traffic accidents25 and, subsequently, on product liability.26 Since then, the Hague Conference has not (at least so far as the author is aware) given further consideration to the possibility of a convention dealing with torts or non-contractual obligations generally, preferring to focus its efforts on specific areas of liability.27

1.07  This book consists of a commentary on the Rome II Regulation, and the process that led to its adoption. It is divided into four Parts. The first Part considers certain introductory topics, including (in this chapter) an overview of the pre-existing rules of applicable law in selected Member States and an account of the legislative history of the Regulation, (in Chapter 2) analysis of the treaty basis for the Regulation, and (in Chapter 3) discussion of the approach to interpretation, the scope of the Regulation, and certain key concepts and terms. The second Part considers the rules of applicable law for torts and delicts, including the special rules for product liability, competition law, violations of the environment, intellectual property, and industrial action. The third Part considers the rules of applicable law for other non-contractual obligations (unjust enrichment, negotiorum gestio‎, and culpa in contrahendo‎). The final Part considers topics common to all non-contractual obligations falling within the scope of the Regulation, including party choice of law, scope of the law applicable under the Regulation, public policy and mandatory rules, and the Regulation’s relationship with EC and international law.

B. The Pre-Regulation Position: a Comparative Overview

1.08  It cannot be doubted that when the Regulation was adopted the Member States of the European Community had reached widely differing solutions to the question as to which country’s rules concerning non-contractual (p. 9) liability should be applied by their courts in cross-border situations. The following (partial) survey is offered by way of illustration of this point, and should not be taken as a comprehensive statement of the law in force in each Member State. The law is described as it stood at the time of writing, prior to the date of application of the Regulation. The rules described below will be largely superseded by those in the Regulation, but will continue to apply to cases falling outside the Regulation’s scope.28

United Kingdom29

1.09  The pre-Regulation rules of applicable law for torts or (in Scotland) delicts30 are principally contained in the Private International Law (Miscellaneous Provisions) Act 1995. This legislation, which entered into force on 1 May 1996, largely replaced31 the formerly applicable common law rule of ‘double actionability’ under which, in order to be actionable in the UK, conduct abroad32 must generally both (a) have constituted a tort under the law of the forum, and (b) have been civilly actionable (although not necessarily as a tort) according to the place where, in substance, the tort occurred.33 In later years, flexibility was introduced into this rule by an exception which (on the view that gained general acceptance) permitted either or both limbs to be displaced in relation to a particular issue by the law of the country which had the most significant relationship with the occurrence and the parties with respect to that issue.34

(p. 10) 1.10  In contrast, the general rule under section 11 of the PILA (UK), the law generally applicable to issues relating to tort or delict is the (domestic35) law of the country in which the events constituting the tort or delict occur.36 Where elements of those events occur in different countries, different subrules identify the applicable law as follows: (a) in cases of personal injury, the law of the country where an individual was when he sustained injury, (b) in cases of property damage, the law of the country where the property was when it was damaged, and (c) in other cases, the law of the country in which the most significant element or elements, weighed together,37 of those events constituting the tort or delict occurred.38 Under section 12 the general rule may be displaced with respect to the case as a whole or a particular issue if it appears from a comparison of the significance of (a) the factors that connect the tort or delict with the country whose law would apply under the general rule, and (b) the factors that connect the tort or delict with another country, that it is substantially more appropriate for the law of the latter country to determine the case or that issue.39 The PILA (UK) contains no provision allowing party choice of law, although a choice of law provision in a contract related to the tort or delict may be taken into account in applying the rule of displacement in s 12.40

1.11  A public policy exception applies to the application of foreign law under the rules outlined above.41 Further, matters of evidence and procedure remain governed (as at common law) by the law of the forum.42 Most controversially, the law of the forum has been held to apply to the quantification of damages.43

1.12  Non-contractual obligations other than torts/delicts remain subject to judge made rules, which were still developing at the time of adoption of the Regulation. For obligations based on unjust enrichment, the most recent edition of Dicey, Morris & Collins: The Conflict of Laws, the leading (p. 11) English work on the conflict of the laws, summarizes the current state of the case law in the following way:44

  1. (1)  The obligation to restore the benefit of an enrichment obtained at another person’s expense is governed by the proper law of the obligation.

  2. (2)  The proper law of the obligation is (semble‎) determined as follows:

    1. (a)  If the obligation arises in connection with a contract, its proper law is the law applicable to the contract;

    2. (b)  If it arises in connection with a transaction concerning an immovable (land), its proper law is the law of the country where the immovable is situated (lex situs‎);

    3. (c)  If it arises in any other circumstances, its proper law is the law of the country where the enrichment occurs.

1.13  As indicated by the tentative nature of the second paragraph, it has not always been possible for practitioners to predict with confidence how the principle of the proper law of the obligation would be applied to the facts of an individual case. In 2005, Sir Lawrence Collins, the senior editor of the work referred to above, while acting in a judicial capacity, described this as ‘an uncertain and developing area of the law’ and the place of enrichment connecting factor (sub-para (c) above) as a ‘tentative formulation’ of the proper law approach ‘where the parties have no prior connection’.45

1.14  Finally, beyond the province of the law of torts and (common law) unjust enrichment, English law recognizes a wide variety of ‘equitable obligations’, being obligations of a kind formerly recognized by the Courts of Equity.46 It was formerly suggested that, putting to one side trust obligations to which the 1985 Hague Convention on the law applicable to trusts and on their recognition and the UK legislation implementing that Convention (p. 12) applies,47 only the forum’s rules of equity could apply to equitable obligations, even if they arose from conduct abroad.48 The modern trend, however,49 favours the rejection of a separate category of ‘equitable obligations’ in private international law and instead seeks to allocate its subject matter between other, well-recognized categories (contract,50 tort, trusts, restitution,51 company law52).


1.15  By Art 99§1 of the Belgian Code of Private International Law,53 obligations resulting from a harmful act (fait dommageable‎) are governed (a) by the law of the State54 of common habitual residence of the person liable and the injured person at the time that the act occurs, (b) otherwise, by the law of the State in which both the fact giving rise to damage and the damage itself occurred in their entirety or are likely to occur, and (c) in all other cases, by the law of the State to which the relevant obligation has its closest connection. Specific rules are contained in Art 99§2 for cases of defamation or violation of privacy or personality rights,55 unfair competition,56 (p. 13) pollution of the environment,57 product liability,58 and road traffic accidents.59 These general and specific rules are, however displaced in favour of the law applicable to an existing legal relationship between the parties which is closely connected to the obligation deriving from a harmful act.60 Further, the parties may, after the dispute has arisen, expressly choose the law applicable to such obligation.61 By Art 103 the law applicable to an obligation resulting from a harmful act extends (among other matters) not only to the existence and nature of the damage which is taken into account for compensation but also to the specific rules regarding the method and extent of compensation (i.e. including quantification).

1.16  Quasi-contractual obligations are governed by the law with which they have their closest connection, generally presumed to be the law of the State in which (having regard to existing and envisaged relations between the parties) the fact resulting in the obligations occurred.62 Again, the parties may expressly choose the applicable law after the dispute has arisen.63

1.17  The Code gives overriding effect to Belgian public policy and mandatory rules,64 as well as facilitating the discretionary application of the public policy and internationally mandatory rules65 of a third State with which the situation has a close connection.66 The doctrine of renvoi‎ is expressly excluded.67


1.18  There is no specific provision in the French Civil Code concerning the law applicable to non-contractual obligations.68 Case law points towards the (p. 14) application of the law of the place of delict,69 which in practice may lead to the application of either the country where the event triggering the damage occurred (‘fait générateur du dommage‎’) or the law of the country where the damage crystallized (‘lieu de réalisation du dommage‎’),70 the choice between these two possible conclusions depending on which of the two laws is seen to have the closest connection to the situation.71 France is a party to the Hague Traffic Accidents and Products Liability Conventions72 and, for situations falling within their scope, the rules of the relevant Convention apply instead.73

1.19  For quasi-contractual obligations, French case law supports the application of the law of the place of the fact which gave rise to them.74

1.20  The application of a law other than French law may be displaced for reasons of public policy (ordre public international‎) or on the ground of incompatibility with overriding lois de police‎, being rules considered necessary for safeguarding the political, social, or economic organization of the country, whether France or (more rarely) a third country.


1.21  By Art 40(1) of the Introductory Act to the German Civil Code,76 claims arising from delict (‘unerlaubter Handlung‎’) are subject to the law of the State where the person liable acted (‘in dem der Ersatzpflichtige gehandelt hat‎’). Nevertheless, the injured person may elect that the law of the State (p. 15) where the result of that action came into effect (‘in dem der Erfolg eingetreten ist‎’) should be applied instead.77 If, however, the person liable and the injured person had their usual residence (or, in the case of legal persons, head office or relevant branch) in the same State, the general rules in Art 40(1) are displaced in favour of the law of that State.78 A further rule of displacement applies if a substantially closer connection exists to the law of another State,79 in particular one arising from a special legal or factual relation between the parties that is connected with the obligation.80 German courts have invoked this rule of displacement, for example, in applying the law of the affected market to competition law claims, and the law of the place where industrial action takes place to claims that are directly connected with that action.81 In any event, delict claims subject to the law of another State are unenforceable if they (a) reach substantially beyond that which is necessary to provide reasonable compensation for the injured person, (b) manifestly serve purposes other than providing such compensation, or (c) contradict liability regulations of an international treaty binding on Germany.82

1.22  By EGBGB Art 38, claims for unjust enrichment resulting from performance with respect to a legal relationship (‘Leistungskondiktion‎’) are generally governed by the law applicable to that relationship.83 Claims for unjust enrichment caused by interference in a protected interest (‘Eingriffskondiktion‎’) are generally governed by the law of the State where the interference occurred.84 In other cases, unjust enrichment claims are governed by the law of the State where the enrichment occurred.85 By Art 39, (a) statutory claims arising from the management of another’s business without mandate are subject to the law of the State where the business was carried out,86 and (b) claims arising from the discharge of (p. 16) another’s obligation are subject to the law applicable to that obligation.87 The law applicable under these rules may also be displaced if there exists a substantially closer connection to the law of another State, including from a special legal or factual relation or (for cases other than unjust enrichment by performance rendered) from the common usual residence of the parties at the time of the legally relevant event.88

1.23  For all these non-contractual obligations, the parties may (pursuant to Art 42) choose the law governing the non-contractual obligation, but only after the event giving rise to the obligation has occurred.89

1.24  A foreign rule will not be applied under these provisions if it is manifestly inconsistent with the fundamental principles of German law, particularly fundamental (constitutional) rights (Grundrechte‎).90 Unusually,91 the EGBGB contains a general renvoi‎ provision whereby, in case of referral to the law of another State (other than by choice of the parties), the private international law rules of that State shall be applied, unless this contradicts the meaning of the referral.92 If that State’s rules of applicable law refer back to German law, the substantive rules of German law will apply, breaking the chain of referrals and avoiding an inescapable circularity (circulus inextricabilis‎). If, however, the applicable law is determined by reference to a party choice of law (as in Art 42 and, indirectly, Arts 38(1) and 39(2)), there is no renvoi‎, the reference being to the material provisions of the relevant legal system exclusive of its rules of private international law.93


1.25  By Art 62(1) of the Italian Law No 218/1995 concerning the reform of the Italian system of private international law,94 liability for unlawful acts95 is governed by the law of the State in which the ‘event’ (‘evento‎’) occurred. Nevertheless, the injured person may demand application of the law of (p. 17) the State where ‘the fact which caused the damage’ (‘il fatto che ha causato il danno‎’) occurred. This language suggests that the former connecting factor is, more naturally, to be equated with the place where the effects of the injurious act are suffered by the injured person.96 By Art 62(2), however, if the unlawful act only involves persons who are citizens of the same State and are habitually resident there, the law of that State shall apply instead. Special rules apply to non-contractual liability for damages caused by a product97 and to fundamental rights of the person.98

1.26  By Art 61 of the 1995 Law, obligations deriving from management of another’s affairs99 (negotiorum gestio‎), unjust enrichment, undue payments, and other legal obligations not regulated by a specific rule of applicable law are governed by the law of the State where ‘the fact from which the obligation derives’ (‘il fatto da cui deriva l’obbligazione‎’) occurred.

1.27  Art 13 of the 1995 Law concerns questions of renvoi‎, but does not apply to non-contractual obligations. By Art 16, foreign law must not be applied if its effects are contrary to public policy.100 Art 17 gives effect to overriding mandatory provisions of Italian law.


1.28  By Art 3(1) of the Dutch Act regarding conflict of laws for unlawful acts101 obligations arising from an unlawful act are governed by the law of the State on whose territory102 the act took place. Nevertheless, by Art 3(2), in cases of harmful effects to persons, things, or the natural environment in (p. 18) another country, the law of that other country shall apply instead, unless the wrongdoer could not reasonably foresee the effect in that territory. According to further rules of displacement, if the wrongdoer and victim have their ordinary residence or establishment in the same State, the law of that State shall apply instead,103 while if the unlawful act is closely connected with a juridical relationship between wrongdoer and victim the law applicable to that relationship shall apply.104 A special rule applies to unfair competition designating the law of the State on whose territory competitive relations were affected.105 In all cases, the parties may instead, expressly or otherwise with sufficient clarity, choose the law applicable to obligations resulting from unlawful acts.106 By Art 7, the scope of the applicable law extends (among other matters) not only to the existence and nature of damage qualifying for compensation but also to the extent of the damage and the manner of its compensation (including, it would appear, matters of quantification). By Art 8, the rules just described do not prevent account being taken of traffi c and safety rules existing at the place of the unlawful act, or of other comparable rules intended to protect persons or things.

1.29  The Netherlands is a party to the Hague Traffic Accidents and Products Liability Conventions107 and, for situations falling within their scope, the rules of the relevant Convention will apply instead.108

1.30  Outside situations regulated by the Rome Convention,109 the law governing unjust enrichment claims under Dutch law remains unsettled, although the law of the State where the enrichment occurred is often reverted to in decisions of the lower courts and legal writing.110 In the absence of party choice and in the absence of a pre-existing legal relationship between the parties, claims based on management of another’s affairs (negotiorum gestio‎) are governed by the law where the manager acted, or—when the manager has acted in several countries—by the law with which the negotiorum gestio‎ is most closely connected.111 If there is a pre-existing relationship between the parties, the law applicable to that relationship applies.

(p. 19) 1.31  Under Dutch law, public policy is not used to exclude objectionable foreign laws from being applied. It may, however, serve as a means to prevent enforcement where the outcome of the application of foreign law is unacceptable.112


1.32  By Art 10, para 9 of the Spanish Civil Code,113 ‘non-contractual obligations’ are governed by the law of the place where the event from which they arise occurred, without distinguishing obligations arising in tort or delict from other obligations. By way of exception, however, (a) management of another’s affairs (negotiorum gestio‎) shall be governed by the law of the place where the manager undertakes the principal activity, and (b) in unjust enrichment cases (including the recovery of payments not due114), the law by virtue of which the transfer of patrimonial value in favour of the enriched person took place shall apply. Further, although Art 10, para 9 is expressed in broad terms, it does not apply to every other non-contractual obligation. It has, for example, been doubted whether the rule applies to obligations concerning the fundamental rights of privacy and freedom of expression.115 In this connection, it has been noted that:116

[S]uch rigid and undifferentiated legislation calls for a response adapted to the special nature of the case, either by way of interpretation or even through development of the law by the courts.

1.33  Spain is a party to the Hague Traffic Accidents and Products Liability Conventions117 and, for situations falling within their scope, the rules of the relevant Convention will apply instead.

1.34  Under Art 12.3 of the Civil Code, foreign law shall not be applied when it is contrary to public order. Further, under Art 12.4, the use of a conflicts (p. 20) rule for the purpose of evading a Spanish imperative law shall be considered a fraud of the law (fraude de ley‎). Finally, the Spanish Law on Unfair Competition118 applies to all acts of unfair competition that produce or may produce substantial effects on the Spanish market, giving it overriding effect in such cases.


1.35  The law applicable to tortious acts in Sweden is regulated by case law, designating the law of the place of the tort, without exception.119 The identifi cation of the applicable law gives rise to greater difficulty, however, if the wrongful acts have occurred in more than one country or have produced effects in one or more other countries. Various solutions have been suggested by legal writers.120 In the situation where an act in one country causes damage in another, the leading case suggests that the place of the act is the most important connecting factor.121

1.36  Sweden is not a party to the Hague Products Liability Convention or the Hague Traffic Accidents Convention, but is (together with Denmark and Finland, among Member States, and Norway) a party to the Nordic Environmental Protection Convention.122 Art 3 of that Convention appears to provide for sole application of the law of the place of the activity giving rise to actual or potential damage, although in practice it appears that the claimant is given the choice between that law and the law of the forum, being the place in which he is affected by that activity.123 By virtue of the participation of two states not bound by the Rome II Regulation, (Denmark and Norway), the Convention will continue to apply to matters within its scope, in accordance with Art 28(1) of the Regulation.

1.37  The division of non-contractual obligations into torts/delicts, on the one hand, and other non-contractual obligations, on the other is not reflected in Swedish law.124 While unjust enrichment, negotiorum gestio‎, and culpa in (p. 21) contrahendo‎ are all recognized bases of legal obligations,125 no clearly established rules of applicable law has been established by case law for such cases,126 although relationships bearing a resemblance to contracts will likely be characterized as such for the purposes of determining their applicable law.

1.38  Application of foreign law to non-contractual obligations is objectionable on public policy grounds.127 Further, in the case of traffic accidents, Swedish citizens and persons habitually resident in Sweden injured in an accident involving a car registered in Sweden may always claim compensation under the Swedish system, which imposes strict liability and gives an independent right to compensation from the insurer of the Swedish vehicle.128


1.39  Although not a Member State of the European Community, the Swiss Federal Code of Private International Law129 provides an interesting comparative model as, at least until the adoption of the Belgian Code130 in 2004, it provided the most comprehensive model for a possible European private international law code and may have influenced the formulation of the Rome II Proposal, at least in terms of the matters which it addresses. The rules described below are unaffected by the Rome II Regulation.

1.40  Under the Swiss Federal Code, claims founded on an unlawful act (acte illicite‎) are governed (a) by the law of the State in which the person responsible and injured party have their common habitual residence,131 and (b) otherwise, by the law of the State in which the unlawful act was committed unless the person responsible should have foreseen that injury would result in another State, in which case the law of the State in which injury occurred shall apply instead.132 If, however, the wrongful act violates an existing relationship between the person responsible and the injured (p. 22) party, claims founded on an unlawful act are governed instead by the law applicable to that legal relationship.133 There are special rules for traffic accidents,134 product liability,135 unfair competition,136 restraint of competition,137 damaging emissions from immovable property,138 and infringements of personality rights by the media.139 In addition, the parties may agree at any time after the harmful event occurred to apply the law of the forum (Swiss law).140

1.41  Unjust enrichment claims are governed by the law that governs the existing or supposed legal relationship from which the enrichment results or (absent such relationship) by the law of the State in which the enrichment occurs.141 Again, the parties may agree that the law of the forum shall apply.142

1.42  The Code gives overriding effect to Swiss public policy and internationally mandatory rules.143 In addition, a mandatory provision of a system of (p. 23) law other than that designated by the Code may be taken into account if the circumstances of the case are closely connected with that system and if, under Swiss law, the legitimate and manifestly preponderant interests of a party so require.144


1.43  Although, at least structurally, there are similarities between the applicable law solutions for non-contractual obligations adopted by European countries, it will be evident even within the narrow confines of the preceding survey that the differences between them far outweigh the common features. Indeed, these differences have increased in recent years with the adoption of detailed legislation in Italy (1995), the United Kingdom (1995), Germany (1999), The Netherlands (2001), and Belgium (2004). In view of the wide divergences between the Member States’ substantive approaches to non-contractual liability145 and in the absence of any international agreement of a general character in this field, the lack of uniformity is unsurprising. It is, however, a feature that played a significant role in the Commission’s case for legislative intervention and in the following debate as to the competence of the European Community to adopt the Rome II Regulation.146

C. The Road to Rome II

1.44  Appendix 5 contains a chronology of key developments in the process leading to the adoption of the Rome II Regulation, with references to the principal documents.

Conception—A Convention on the Law Applicable to Contractual and Non-Contractual Obligations?147

1.45  By a letter dated 8 September 1967, Joseph Van Der Meulen, the permanent representative of Belgium to the EEC invited the Commission to organize a collaboration of Member State experts with a view to unifying private (p. 24) international law rules within the Community. That invitation was the product of an initiative by the governments of Belgium, Netherlands, and Luxembourg, whose joint efforts in this area had already resulted, in 1951, in the Benelux convention on private international law, although this had not yet entered into force.148 The invitation came during the latter stages of the negotiations leading to the adoption by the Member States, in 1968, of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters.149 Indeed, collaboration between the Member States in the area of reciprocal recognition of judgments had been specifically contemplated by Art 220 (now Art 293) of the EEC (now EC) Treaty. Although that provision made no specific mention of wider harmonization or unification of private international law rules, such coordination was in the view of the Benelux delegations a matter of some urgency having regard to likely reforms in ‘some Member States’ and the ‘danger that existing divergences would become more marked’.150

1.46  As a result, the Commission engaged in a study as to the possible benefits of greater uniformity in private international law rules. Having reached a favourable conclusion in this study, it invited a group of experts to meet to consider possible future action, and circulated a questionnaire to facilitate the discussion. That meeting took place from 26 to 28 February 1969. In his opening address, the Commission’s representative, Mr T Vogelaar, stated:151

This proposal should bring about a complete unification of the rules of conflict. Thus in each of our six countries, instead of the existing rules of conflict and apart from cases of application of international agreements binding any Member State, identical rules of conflict would enter into force both in Member States’ relations inter se‎ and in relations with non-Community States. Such a development would give rise to a common corpus of unified legal rules covering the territory of the Community’s Member States. The great advantage of this proposal is undoubtedly that the level of legal certainty would be raised, confidence in the stability of legal relationships fortifi ed, agreements on jurisdiction according to the applicable law facilitated, and the protection of rights acquired over the whole field of private law augmented.

(p. 25) He continued:

According to both the letter and spirit of the Treaty establishing the EEC, harmonization is recognized as fulfilling the function of permitting or facilitating the creation in the economic field of legal conditions similar to those governing an internal market. I appreciate that opinions may differ as to the precise delimitation of the inequalities which directly affect the functioning of the common market and those having only an indirect effect. Yet there are still legal fields in which the differences between national legal systems and the lack of unified rules of conflict definitely impede the free movement of persons, goods, services and capital among the Member States.

Some will give preference to the harmonization or unification of substantive law rather than the harmonization of rules of conflict. As we know, the former has already been achieved in various fields. However, harmonization of substantive law does not always contrive to keep pace with the dismantling of economic frontiers. The problem of the law to be applied will therefore continue to arise as long as substantive law is not unified. The number of cases in which the question of applicable law must be resolved increases with the growth of private law relationships across frontiers.

At the same time there will be a growing number of cases in which the courts have to apply a foreign law. The Convention signed on 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters uniformly governs the international jurisdiction of the courts within the Community. It should help to facilitate and expedite many civil actions and enforcement proceedings. It also enables the parties, in many matters, to [reach]152 agreements assigning jurisdiction and to choose among several courts. The outcome may be that preference is given to the court of a State whose law seems to offer a better solution to the proceedings. To prevent this ‘forum shopping’, increase legal certainty, and anticipate more easily the law which will be applied, it would be advisable for the rules of conflict to be unified in fields of particular economic importance so that the same law is applied irrespective of the State in which the decision is given.

To sum up, there are three main considerations guiding our proposal for harmonizing the rules of conflict for a few well-defined types of legal relations. The first is dictated by the history of private international law: to try to unify everything is to attempt too much and would take too long. The second is the urgent necessity for greater legal certainty in some sectors of major economic importance. The third is the wish to forestall any aggravation of the differences between the rules of private international law of the various Member States.153

1.47  Pausing there, it may be noted that these arguments are strikingly similar to those that would be adopted by the Commission almost thirty-five years later to support its Rome II Proposal and that were subsequently carried (p. 26) forward into the recitals of the Rome II Regulation.154 Although Mr Vogelaar and his colleagues did not, of course, have the opportunity to consider the way in which the legislative competence of the Community in the field of civil justice would develop as a result, in particular, of the 1997 Treaty of Amsterdam,155 the influence of their work in relating private international law rules to the economic objectives of the EEC is evident in the Regulation in its final form.

1.48  At their second meeting, the group of experts recommended that followup work should focus on areas that they considered to be closely involved in the proper functioning of the common market, i.e. (a) the law applicable to corporeal and incorporeal property, (b) the law applicable to contractual and non-contractual obligations, (c) the law applicable to the form of legal transactions and evidence, and (d) general matters of private international law relevant to the foregoing topics (renvoi‎, characterization, application of foreign law, acquired rights, public policy, capacity, representation).156 In October 1970, the Committee of Permanent Representatives (COREPER) mandated the group to continue its work on this basis. As regards the second subject area, with one element of which this book is concerned, the group of experts (led by Paul Jenard, of the Belgian Ministry of Foreign Affairs, and the author of the official report on the Brussels Convention) appointed Professor Mario Giuliano of the University of Milan as rapporteur. He was assisted on this project by Professor Paul Lagarde (University of Paris), rapporteur on the subject of legal transactions and evidence, and Mr Th van Sasse van Ysselt (Netherlands Ministry of Justice), rapporteur on the general topics. Their work, and that of the group of experts, in the period from 1970 to 1972 resulted in the submission to the Member States of the preliminary draft EEC convention on the law applicable to contractual and non-contractual obligations157 and the accompanying report of Professors Giuliano and Lagarde and Mr van Sasse van Ysselt.158

1.49  So far as non-contractual obligations are concerned, the key features of the preliminary draft convention were as follows:159

  1. 1. The draft convention contained separate rules for (a) non-contractual liability resulting from ‘an event which has resulted in damage or (p. 27) injury’160 (in the French original, un fait dommageable161), and (b) noncontractual obligations resulting from ‘an event which does not result in damage or injury’ (un fait autre qu’un fait dommageable‎).162

  2. 2. For category (a) (including torts), there was a general rule that the law of the country in which the relevant event ‘occurred’163 should apply,164 subject to a rule of displacement in favour of another country with which the situation has a closer connection, provided that the situation has no significant link with the former country.165

  3. 3. During their discussions leading to the 1972 draft convention, the group of experts posed the question: ‘If the event entailing damage occurs in a country other than that in which its damaging effects are felt, which shall be considered the one in which the event occurs?’, but declined to give an answer ‘in order not to impede ongoing developments in the jurisprudence of the Community countries’.166

  4. 4. For category (b) (encompassing, at least, negotiorum gestio‎, unjust enrichment, and the payment of money not owed),167 the draft convention provided that the law of the country in which the relevant event occurred should again govern, subject again to displacement in favour of the law of another country with which there is a closer connection by reason of a connecting factor common to the interested parties.168

  5. (p. 28) 5. Matters excluded from the scope of the draft convention, or the rules concerning non-contractual obligations, included (a) nuclear damage,169 and (b) liability of the State or other legal persons governed by public law, or the liability of their organs or agents, for acts of public authority performed by the organs or agents in the exercise of their official functions.170

1.50  Overall, particularly when compared to the provisions of the draft convention concerning contractual obligations and to the Rome II Regulation itself, the approach to non-contractual obligations in the 1972 draft seems awkward and to lack sophistication, although this may be explained by economic priorities at the time as well as the underdeveloped state of the private international law of non-contractual obligations. Whatever the explanation, this aspect of the draft was strongly criticized.171 Perhaps unsurprisingly, in March 1978 (following the accession to the EEC of Denmark, Ireland, and the UK), the group of experts decided ‘for reasons of time’172 to focus their work on the area of contractual obligations. The resulting (Rome) Convention on the law applicable to contractual obligations was opened for signature on 19 June 1980.173 For the time being, the project for the harmonization of rules relating to non-contractual obligations lay dormant. Even so, the close historical link with the Rome Convention would lead to it being branded with the short title ‘Rome II’.174

Treaty on European Union—Picking Up Tools

1.51  Twenty years after submission of the draft convention, the project was reinvigorated by the Treaty on European Union, signed at Maastricht on 7 February 1992 and coming into force on 1 January the following year. This Treaty created, albeit outside the framework of what would be redesignated as the EC Treaty, a framework for cooperation between the Member States in, among other areas, matters of civil justice.175 (p. 29) Subsequently, by a resolution dated 14 October 1996 laying down priorities for cooperation in this area, the Council stated that it intended to launch discussions on the possibility of a convention on the law applicable to ‘extra-contractual obligations’.176

Impact of the Treaty of Amsterdam

1.52  Before work could begin in earnest, however, the constitutional pendulum had swung away from collaborative action of the Member States and towards the competence of the European Community and its institutions. An inter-governmental conference, launched at the Turin European Council in March 1996, led to agreement the following summer in Amsterdam on the text of an amending treaty, signed on 2 October 1997 by the foreign Ministers of the (then) fifteen Member States. Arguably, the most significant initiative in the Treaty was the transfer of competence with respect to certain aspects of the area of justice and home affairs from the TEU framework into the main body (Title IV) of the EC Treaty, conferring on the European Community the specific power to adopt rules in this area, including rules of private international law.177 The surrender was not, however, total. Art 65 (initially Art 73m) of the EC Treaty, which refers to measures to promote the compatibility of rules applicable in the Member States concerning the conflict of laws and of jurisdiction, contains a number of restrictions on the legislative power of the European Community in this area. The nature and scope of these restrictions on the Community’s legislative power in this area will be examined further in Chapter 2 below. At the same time, Denmark declined to be bound by the new Title IV of the EC Treaty,178 and the UK and Ireland hedged their position by means of a protocol preserving the right to opt-in or not to particular proposals on a case-by-case basis.179

Early Work on a Possible ‘Rome II’ Convention

1.53  In February 1998, the Commission circulated among the Member States a questionnaire asking them to identify their applicable national rules of private international law concerning non-contractual obligations. Based on the replies of the Member States,180 the Austrian Presidency circulated (p. 30) a document setting out initial views on the principal questions to be addressed by any convention,181 and organized four working group meetings to discuss the issues. This document was first discussed at the meeting of the working group in November 1998.

Proposal of the European Group for Private International Law (GEDIP)

1.54  The Commission had also funded through the GROTIUS programme a study on the feasibility of a convention by the European Group for Private International Law (GEDIP). Subsequently, GEDIP adopted the final version of its proposal for a convention on the law applicable to non-contractual obligations in June 1998. Its principal features were as follows:182

  1. 1. Separate rules for (a) non-contractual obligations ‘arising out of a harmful event,’183 and (b) non-contractual obligations ‘arising out of an event other than a harmful event’.184

  2. 2. For non-contractual obligations arising out of a harmful event, a general rule that the applicable law should be the law of the country with which the non-contractual obligation is most closely connected,185 combined with (a) rebuttable186 presumptions in favour of (i) the law of the country of common habitual residence of the author of the damage and the person who suffers damage at the time of the harmful event,187 alternatively (ii) the law of the country where both the event causing the damage and the damage occurred,188 and (b) special presumptions in cases of (i) invasion of privacy or rights in personality,189 (ii) unfair competition or restrictive trade practices,190 and (iii) environmental damage.191

  3. (p. 31) 3. For non-contractual obligations arising out of an event other than a harm ful event, an identical general rule,192 with rebuttable193 presumptions in favour of (a) the law which governs or which would govern a preexisting or contemplated relationship to which the non-contractual obligation is connected,194 alternatively (b) in the case of an obligation to make restitution based on unjust enrichment, the law of the country in which the enrichment occurs,195 and (c) in the case of an obligation relating to management of the affairs of another (negotiorum gestio‎), the law of the country of the beneficiary’s habitual residence at the relevant time or (in the case of protection of the person or tangible property) of the country where the person or property was situated at the relevant time.196

  4. 4. The parties would be allowed to choose the law applicable to a noncontractual obligation, but only by an express agreement entered into after the dispute had arisen and without prejudice to the rights of third parties.197

  5. 5. Matters excluded from the scope of the proposed convention included (a) non-contractual obligations arising out of a family or analogous relationship, (b) the personal liability of officers, members, and auditors of statutory accounts for the obligations of a company or other body, (c) liability arising out of events resulting from the exercise of public authority, and (d) nuclear damage.198

1.55  The GEDIP proposal has been described by Professor Symeonides as ‘an elegant, sophisticated, flexible document which has influenced the general content and coverage of Rome II, although not where it matters most’.199 He also suggests that:200

The proposal was a sophisticated document drafted for sophisticated judges capable of, and entrusted with the discretion necessary for making the fine balancing the proposal envisioned. In contrast, Rome II is a pragmatic document that aims (p. 32) for simplicity and uniformity and primarily seeks to preserve the status quo rather than dramatically to alter it.

Overall, however, the differences between the approach of the GEDIP proposal and that of the Rome II Regulation do not appear as significant as Professor Symeonides suggests. Further, although the Regulation is undoubtedly conditioned to a large degree by the demands of legal certainty, the description of it as seeking to preserve the status quo seems questionable. Professor Symeonides recognizes elsewhere the divergences in the Member States’ pre-existing rules of private international law and describes the Regulation as a ‘dramatic step’ and as part of the ‘European conflicts revolution’. In the final analysis, whether it is considered superior to the final text of the Rome II Regulation or not, the GEDIP proposal marks one of a number of reference points in the legislative history of the Regulation, but it cannot be said to have been nearly as influential as might have been expected given its provenance.

The Vienna Action Plan and the Tampere European Council

1.56  Before the Amsterdam Treaty came into force, representatives of the European institutions set about making plans for the exercise of their new powers. In October 1998, the Council adopted (in Vienna) a joint Action Plan of the Commission and the Council on how best to implement Title IV of the Amsterdam Treaty.201 Ambitiously, given the project’s prior history, the drawing up of a legal instrument on the law applicable to non-contractual obligations was identified as a priority measure, to be taken within two years after the entry into force of the Treaty.202 Perhaps predictably, when that deadline passed in May 2001, the Commission had not even got as far as publishing a text for consultation.203

1.57  Subsequently, political weight was added to these plans by the declarations of the Member States at the 1999 Tampere European Council, endorsing the principle of mutual recognition as the cornerstone of judicial cooperation in both civil and criminal matters within the European Union.204 In the following year, the programme of measures for the implementation of that (p. 33) principle suggested a link, albeit not a compelling one, to measures for the harmonization of conflict of law rules, stating that:205

The measures relating to harmonisation of conflict-of-law rules … actually do help facilitate the mutual recognition of judgments.

Lastly, implementation of the mutual recognition principle may be facilitated through harmonisation of conflict-of-law rules.

The Council’s Work Continues …

1.58  In the midst these developments, and despite the coming into force of the Treaty of Amsterdam on 1 May 1999, the Council’s working group continued to discuss the text of the proposed convention in further meetings throughout 1999. A heavily annotated, internal ‘state of play’ draft dated 9 December 1999206 reveals the grainy, embryonic form of what was to emerge as the Rome II Regulation. In particular:207

  1. 1. The draft instrument categorizes non-contractual obligations using the terms ‘tort or delict’,208 ‘unjust enrichment’,209 and ‘negotiorum gestio‎’,210 all of which appear in the Rome II Regulation, as well as ‘actio pauliana‎’211 which does not.212

  2. 2. The general rule for tort/delict refers to ‘the law of the country where the injury occurs irrespective of where the consequences of that injury arose’ (the lex loci damni‎ or lex laesionis‎).213 This accords with Art 4(1) of the Rome II Regulation.214

  3. 3. (p. 34) The generally applicable law is subject to a rule of ‘exceptional displacement’ if, having regard among other matters to the parties’ common habitual residence at the time when the injury occurred or a special relationship between the parties, it appears that the tort or delict is substantially more closely connected with another country, in which case the law of that other country would apply.215 In contrast, Art 4(2) of the Rome II Regulation contains a separate rule of displacement for the habitual residence of the parties.216

  4. 4. Freedom of choice would be permitted, but only after the occurrence of the event giving rise to injury and without prejudice to the rights and obligations of third parties or to non-derogable rules of the law of the country with which the situation is otherwise (ignoring also any choice of forum) exclusively connected.217

  5. 5. Special rules are proposed for product liability218 and unfair competition and unfair practices.219 In contrast to the Regulation in its final form, however, there is no special rule for environmental damage and intellectual property is (tentatively) excluded from scope.220 Defamation appears only as a heading.221

  6. 6. Other areas excluded (in some cases, tentatively) from scope include wills and succession, matrimonial property rights, rights and duties arising out of a family or analogous relationship, bills of exchange, cheques, promissory notes and other negotiable instruments, obligations governed by the law of companies and other similar bodies, trust obligations, matters of evidence and procedure not specifically brought within scope,222 liability for acts and omissions performed in the exercise of public authority and nuclear injury.223

… as the Commission Prepares to Act

(p. 35) 1.59  Shortly after, the Council suspended its activities pending the submission of a Community legislative proposal.224 In fact, during 1999, the Commission had been considering whether to pre-empt the coming into force of the Treaty of Amsterdam and to seize the initiative from the Council by publishing its own legislative proposal.225 A draft text was produced226 and circulated by DG Justice and Home Affairs (since renamed Freedom, Security and Justice (JLS)) to other Directorates General within the Commission in 1999. Comments received included that (a) the document should take the form of a Green Paper and should consult on the necessity of a Community instrument regulating the law applicable to non-contractual obligation, (b) the text should be more open and analytical, (c) a section should be added dealing with electronic commerce, and (d) the text should note that private international law could not override ‘internal market clauses’ in certain Directives. This last point, raised specifically by DG Internal Market and Services (Markt), was based on the idea that relevant Directives,227 as well as the Treaty provisions concerning the free movement of goods, persons, and services, required application of the law of the ‘country of origin’ as a rule of private international law. That view, shared by some other Directorates General (notably DG Information Society (INFSO), DG Enterprise and Industry (ENTR), and DG Education and Culture (EAC)) was opposed by DG JLS and DG Health and Consumers (SANCO). As appears below, debate as to the so-called ‘country of origin’ principle would dominate discussions within the Commission, and would almost de-rail the entire process.

The Commission’s Green Paper—A Disappearing Act

1.60  In response to these criticisms, DG JLS briefly considered whether to defer to the Member States’ right of initiative. Having decided to press ahead, DG JLS prepared a draft Green Paper on a possible instrument concerning the law applicable to non-contractual obligations. At a meeting of the (p. 36) Council’s Committee on Civil Law Matters in June 2000, the Commission’s representative announced the forthcoming publication of that Paper.228 Thereafter, however, the train hit the buffers. In response to an informal internal consultation, DG Markt raised almost exactly the same objections to the content of the draft Green Paper as it had made to the earlier draft proposal (1.59 above), focusing its attention on the role of the ‘country of origin’.

1.61  In January 2001, a formal Commission inter-service consultation was launched on a revised draft.229 Among other elements, the draft contained questions as to the necessity of adopting an instrument laying down uniform rules of private international law on non-contractual obligations230 and the approach to be adopted for non-contractual obligations arising in connection with computers etc.,231 as well as an annex containing a short summary of the Member States’ existing rules of applicable law for torts and delicts.232 Two months later, the Commission reported to the Council’s Committee on Civil Law Matters that it intended to prepare and publish a Green Paper during the first quarter of the year.233 The Green Paper never appeared. In their responses to the inter-service consultation, DGs EAC, INFSO, and ENTR took the point that the E-Commerce Directive, adopted in June 2000,234 regulated the law applicable in relation to the information society services. Similar comments were made with respect to other Directives. DG Markt also requested significant changes to the Green Paper to give what it saw as a more balanced explanation of the relationship between private international law and EC law. In the face of an apparent deadlock, DG JLS again considered whether to abandon the dossier and instead leave the right of initiative to the Member States.

1.62  By May 2001, the Commission had once again changed tack, telling the Council’s Committee on Civil Law Matters that it had instead decided to create a proposal for an instrument on the law applicable to extra-contractual obligations.235 The UK delegation queried this, concerned by the lack of consultation of practitioners concerned with this area of work.236 At the (p. 37) following meeting of the committee, the UK formally recorded its objection to the Commission’s conduct, in the following terms:237

The United Kingdom delegation expressed surprise at the fact that the Commission had announced the presentation of a Regulation concerning the law applicable to non-contractual obligations (Rome II) without first preparing a green paper. This would have allowed interested parties at all levels to contribute to the discussions which concerned them very directly.

The Commission, on the other hand, appeared to consider that sufficient consultation with interested parties had already taken place.

The Commission’s Preliminary Draft Proposal

1.63  During the remainder of 2002, discussions within the Commission centred on the relationship between the proposed Rome II instrument and internal market instruments, particularly the E-Commerce Directive. Views remained polarized, but the Directorates General eventually agreed to patch up their differences on the basis that clarification of the E-Commerce Directive should be left to the ECJ and should not be a matter for the Rome II Regulation.

1.64  In announcing its plan to move forward to a proposal without a Green Paper, DG JLS had explained that it intended to consult on the text with stakeholders. Eventually, it agreed to make a draft available on the Internet. On 3 May 2002, three years after it had first attempted to formulate a proposal, DG JLS published what it described as a ‘preliminary draft proposal’ for a Regulation on the law applicable to non-contractual obligations,238 without any explanatory memorandum. In the words of the Commission, the draft was ‘no more than a Commission staff working paper for the sole purpose of consulting interested parties’. In its detailed response to the document, the UK Government raised the following objection to the form of the consultation:239

The United Kingdom Government welcomes the opportunity to comment on draft proposals from the European Commission before any formal proposal is made. It is important that such an opportunity should always be made available. However it is also important that consultation should not be only on the basis of a draft instrument without any accompanying memorandum explaining the (p. 38) policy behind that draft. This is likely to give rise to difficulty and misunderstanding where provisions in the draft text can reasonably be understood in different ways. It would have been better at this stage if the Commission’s consultation had been focused more clearly on the underlying policy considerations in this technically complex area of private international law; this should be a standard part of the consultation procedure… .

The absence of any explanatory material means that the Commission has not made any attempt to justify the need for any harmonised rules in this area. In the view of the United Kingdom there has not so far been any demonstrated need for such an instrument which in order to comply with the requirements of Article 65 must be ‘necessary for the proper functioning of the internal market’. In order to satisfy this requirement, and to justify the allocation of resources, the Commission should present evidence of difficulties currently arising in this context which constitute practical obstacles to cross-border trade and the movement of persons. It should only be on the basis of sufficient evidence of this kind that the Commission should proceed with a formal proposal for a draft Council Regulation.

1.65  In substance, the preliminary draft proposal marks a further stage in the development of the Rome II Regulation. In particular, the structure (if not the language) of the general rule for tort/delict in Art 3 is aligned to that in Art 4 of the Regulation,240 combining a basic preference for application of the lex loci damni241 with rules of displacement in favour of (a) the law of the parties’ country of common habitual residence,242 and (b) the law of another country with which the situation has a substantially closer connection, but only if there is no significant connection with the country whose law would be applicable under the preceding elements of the rule.243 That general rule is combined with special rules for product liability,244 unfair competition and other unfair practices,245 violation of the environment,246 and (most controversially) defamation/privacy,247 the latter rule favouring the law of the country where the victim is habitually resident at the time of the tort. For other non-contractual obligations, a series of rules set out in Art 10, giving priority to the law applicable to a prior relationship between the parties (p. 39) out of which the obligation arose, is followed by separate rules for unjust enrichment248 and ‘actions performed without due authority in connection with the affairs of another person’ (negotiorum gestio‎),249 the law applicable under these latter rules being capable of being displaced only in favour of the law of the parties’ common habitual residence at the time that the obligation arose.250 Significantly, for the first time, Art 11 would allow that the parties should be permitted to choose the law applicable to a non-contractual obligation without any limit in time, so as to permit a choice before the obligation arose (ex ante‎).251 Matters excluded from the scope of the preliminary draft Regulation include (a) non-contractual obligations arising out of a family or equivalent relationship, (b) succession, (c) obligations arising under bills of exchange, cheques, promissory notes, and other negotiable instruments,252 (d) the personal liability of officers, members, and auditors of statutory accounts for the obligations of a company or other body, (e) liability incurred in the exercise of public authority, (f) trust obligations, and (g) matters of evidence and procedure not specifically brought within scope.253

1.66  The Commission invited written comments on the document by September 2002. In its follow-up document,254 the Commission noted that around 80 contributions were received from academics, governments, business, and practitioners255 and that:

The reaction ranged from blunt refusal of the draft Regulation as a whole to approval with some points of criticism. It is worth noting that business was more critical of the draft than representatives of legal professions, academics and Member States, who in general welcomed the draft.[256]

(p. 40) 1.67  The second stage of the Commission’s consultation process, a public hearing, took place in Brussels on 7 January 2003. The items on the agenda257 did not include any assessment of the treaty basis or desirability of the proposed Regulation. It became evident that the Commission’s position was that these matters had already been determined for it by the political declarations of the Member States in the Vienna Action Plan and the Tampere conclusions.258 On other issues, the delegates were sharply divided, with representatives of business generally strongly critical of the proposal and consumer organizations generally in favour, but advocating greater victim protection.

The Treaty of Nice—Joint Competence of the Council and Parliament

1.68  On 1 February 2003, the Treaty of Nice came into force.259 From that date, it was required that all measures in the field of judicial cooperation in civil and commercial matters within EC Treaty, Art 65 be taken in accordance with the co-decision procedure set out in Art 251 of that Treaty, giving the European Parliament joint legislative competence with the Council, as opposed to a mere right to be consulted.260 As will be seen, that increase in the Parliament’s powers would have a significant effect on the legislative process leading to the adoption of the Rome II Regulation, as it was the first instrument in this area to reach conciliation, the final stage of the co-decision procedure.261

The Commission’s Proposal

1.69  Having reflected on the outcome of the consultation process, the Commission published its proposal for a Regulation on the law applicable to noncontractual obligations (Rome II) on 22 July 2003. This was accompanied by a detailed explanatory memorandum. The Commission explained the general purpose of its proposal as follows:262

The purpose of this proposal for a regulation is to standardise the Member States’ rules of conflict of laws regarding non-contractual obligations and thus extend the (p. 41) harmonisation of private international law in relation to civil and commercial obligations which is already well advanced in the Community with the ‘Brussels I’ Regulation263 and the Rome Convention of 1980.

The harmonisation of conflict rules, which must be distinguished from the harmonisation of substantive law, seeks to harmonise the rules whereby the law applicable to an obligation is determined. This technique is particularly suitable for settling crossborder disputes, as, by stating with reasonable certainty the law applicable to the obligation in question irrespective of the forum, it can help to develop a European area of justice. Instead of having to study often widely differing conflict rules of all the Member States’ courts that might have jurisdiction in a case, this proposal allows the parties to confine themselves to studying a single set of conflict rules, thus reducing the cost of litigation and boosting the foreseeability of solutions and certainty as to the law.

This proposal for a Regulation would allow parties to determine the rule applicable to a given legal relationship in advance, and with reasonable certainty, especially as the proposed uniform rules will receive a uniform interpretation from the Court of Justice. This initiative would accordingly help to boost certainty in the law and promote the proper functioning of the internal market. It is also in the Commission’s programme of measures to facilitate the extra-judicial settlement of disputes, since the fact that the parties have a clear vision of their situation makes it all the easier to come to an amicable agreement.

1.70  The Proposal contained a number of significant changes, both in terminology and substance, from the preliminary draft proposal. In particular:264

  1. 1. In the general rule for tort/delict (Commission Proposal, Art 3), the term ‘loss’ was replaced by ‘damage’265 and the rule of displacement in Art 3(3) of the proposal now appeared, more or less, in the form which it would (p. 42) take in Art 4(3) of the final Regulation,266 without the requirement that there be no significant connection between the non-contractual obligation and the law which would otherwise govern under paragraph 1 or 2.

  2. 2. The special rules for product liability,267 unfair competition,268 violations of privacy/personality rights (defamation),269 and violation of the environment270 had been re-written, and a new special rule introduced for infringement of intellectual property rights.271

  3. 3. The rules for non-contractual obligations other than those arising out of tort/delict were made more flexible by the introduction of a rule of displacement referring to the law of a country with which the noncontractual obligation was manifestly more closely connected.272

  4. 4. The right of parties to choose the law applicable to non-contractual obligations was restricted to agreements entered into after the dispute arose, and was excluded in the case of intellectual property rights.273

  5. 5. A new provision (Commission Proposal, Art 12(1)) was inserted, reflecting Art 7(1) of the Rome Convention, allowing discretionary application of overriding mandatory rules of a third country (i.e. other than the forum and that whose law would apply to the non-contractual obligation under the general or specific rules of applicable law) with which the situation had a close connection.274

  6. 6. Art 24 of the proposal provided that ‘[t]he application of a provision of the law designated by this Regulation which has the effect of causing noncompensatory damages, such as exemplary or punitive damages, to be awarded shall be contrary to Community public policy’. Not only was the concept of non-compensatory damages potentially very broad (including, for example, restitutionary and nominal damages), but also the concept of ‘Community public policy’, at least in the area of private law, was unprecedented and unwelcome. Happily, it was also short-lived.275

  7. (p. 43) 7. Consistently with the Brussels I Regulation, the proposed Regulation was restricted to ‘civil and commercial matters’.276 Revenue, customs and administrative matters,277 matrimonial property regimes,278 and non-contractual obligations arising out of nuclear damage279 were added to the list of excluded matters. The specific exclusions of liability incurred in the exercise of public authority280 and evidence and procedure281 were removed.

Assessment of the Proposal by the UK House of Lords’ Select Committee

1.71  In early 2004, before any of the European institutions had formally responded, the European Union Committee of the UK House of Lords launched a public consultation to support its scrutiny of the Commission Proposal. In the following two months, it received several written contributions282 and heard oral evidence from representatives of the Commission,283 professional284 and senior academic285 lawyers, representatives of the media,286 and of the UK Government.287 The reaction to the Commission’s proposal was generally, if not universally, hostile. Most significantly, two leading experts, the senior editors of the leading (p. 44) general English works on private international law, expressed their strong opposition to the proposal. Sir Peter North288 concluded that:289

[N]o clear and convincing need for this proposed Regulation had been identified by the Commission in terms of the operation of the internal market. It looks rather like harmonisation on the basis of tidiness. Furthermore, no convincing case has been made or justification given for the scope of any Regulation to be world wide. That said, a new Regulation limited in territorial scope could be regarded as acceptable, not least in the broader context of European co-operation, if it was well drafted and did not raise significant concerns as to its substance, even though its acceptance would mean a further change in our tort choice of law rules… . [M]y personal conclusion is that the current text is neither clear enough nor, substantively, satisfactory enough, however, for the proposed Regulation to be acceptable.

In similar fashion, Sir Lawrence Collins290 commented:291

The arguments for adoption of a Regulation are wholly unconvincing. The Commission’s website on harmonisation makes it clear that its aim is the ultimate harmonisation of rules relating to applicable law. Although the effect of the revised EC Treaty is that the Community has the power to take measures harmonising rules of private international law, it is fanciful to suppose … that a regulation to harmonise private international rules for non-contractual obligations is ‘necessary for the proper functioning of the internal market’… .

1.72  The Committee, in its final report, did not pull any punches. Its main conclusions were as follows:292

The Regulation raises a serious question of vires‎. The Commission has not shown a convincing case of ‘necessity’ within the meaning of Article 65 TEC. Further, on any construction of Articles 61 and 65 of the EC Treaty there must be the most serious doubts that the proposal can have universal application and can be used to harmonise substantive rules of damages (Articles 2 and 24 respectively). We urge both the Council and the Parliament to give the most careful consideration to the issue …

There is no evidence of which we are aware that there are such problems in the application of the Member States’ conflicts rules in this area as require the introduction of a Community measure. The justification provided by the Commission in its Explanatory Memorandum is unconvincing and fails to pay due regard to (p. 45) the views of industry, commerce, the media and legal practitioners. We invite the Council and the Parliament to look critically at the question whether there is a real practical need for the Regulation… .

1.73  The Committee also recommended deletion, or substantial revision, of several provisions of the Commission’s proposal.293

The European Parliament (First Reading Procedure)

1.74  As a result of the Treaty of Nice, the European Parliament would enjoy, constitutionally at least, equal billing with the Council in the adoption of the proposed Regulation. After some discussion as to whether the Committee on Civil Liberties, Justice and Home Affairs (LIBE) or the Committee on Legal Affairs and the Internal Market (JURI) would take the lead, the latter claimed the prize and in late 2003 appointed Diana Wallis MEP294 as rapporteur for the proposal.295 Within a short timeframe, the rapporteur produced a working document in two parts296 followed, in March 2004, by a draft report.297 That report went through several further drafts298 before being adopted by the JURI Committee on 21 June 2005.299

(p. 46) 1.75  With relatively minor amendments in the plenary session,300 the report formed the basis of the European Parliament’s position at first reading on 6 July 2005.301 By that time, clear water had emerged between the Parliament’s position and the position of the Commission, towards which the Council would also ultimately steer. In particular,302 the Parliament favoured greater flexibility in the general rule for torts/delict, with less reliance on special rules for particular torts.303 Indeed, at one point,304 the rapporteur recommended that the general rule should refer to the law of the country with which the non-contractual obligation is most closely connected, coupled with a series of rebuttable presumptions. She subsequently returned to the place of damage as a starting point, but substantially modified the Commission’s rules of displacement. The significance of the parties’ common habitual residence was downgraded from a factor of displacement in its own right305 to an element in the more flexible ‘escape clause’ requiring a manifestly closer connection with another country.306 The factors cited as potentially supporting the application of this flexible rule of displacement were greatly expanded by the Parliament to include:

  1. (a)  as far as loss-distribution and legal capacity are concerned, the fact that the person claimed to be liable and the person sustaining loss or damage have their habitual residence in the same country or that the relevant laws of the country of habitual residence of the person claimed (p. 47) to be liable and of the country of habitual residence of the person sustaining loss or damage are substantially identical;

  2. (b)  a pre-existing legal or de facto‎ relationship between the parties, such as, for example, a contract, that is closely connected with the noncontractual obligation in question;

  3. (c)  the need for certainty, predictability, and uniformity of result;

  4. (d)  protection of legitimate expectations;

  5. (e)  the policies underlying the foreign law to be applied and the consequences of applying that law.

The rapporteur explained:307

Your rapporteur takes the view that the complexity of many cases is such that a flexible regime is more appropriate than rigid rules for each class of non-contractual obligation. Small factual differences in cases can substantially alter the parties’ expectations and the policy considerations at stake.

In this approach, the rapporteur was undoubtedly influenced by developments in American choice of law theory, and it would appear to be no coincidence that two weeks before publication of a new draft of her report in March 2005,308 the rapporteur had organized a working group entitled ‘Rome II—the international perspective’, the speakers at which had included prominent modern US conflict of laws theorists.309 The role envisaged for ‘governmental interest analysis’, which had previously been rejected as a basis for reform of the UK applicable law regime for torts310 and was widely thought to be antithetical to the continental approach to conflict of laws,311 was the most striking, and objectionable, element of the European Parliament’s 1st Reading Position. Particularly when coupled with the universal application of the Regulation312 and the Parliament’s (p. 48) proposed reforms to pleading and proof of the applicable law,313 the requirement that Member State courts consider the policies underlying the potentially relevant rules of all connected systems to determine whether the connection was or was not ‘manifestly closer’ than that to the system whose law would otherwise apply was open to criticism as being liable to increase the burden on judges as well as the costs of litigation, at the same time as reducing significantly the foreseeability of legal decisions, the primary stated objective of the Rome II Proposal.314 It was, it is submitted, at least one step too far in the rapporteur’s global search to find suitable models for the Rome II regime.315

1.76  Other key aspects of the EP 1st Reading Position include the following:

  1. 1. The flexibility of the general rule was further increased by recognizing the possibility of more than one applicable law, each issue being potentially subject to a separate analysis to determine its applicable law.316 According to the rapporteur:317

    [I]n disputes which take place in a Community of States without borders, all having different legal systems but sharing a common heritage of human rights provisions and Community law, justice will often be served by applying dépeçage‎. It is for this reason, that Article 3(3) provides that the court seised must, where necessary, subject each issue of the dispute to separate analysis. This may prove necessary, inter alia‎, in order to avoid having to apply statuta odiosa‎ of non-Community countries. What is essential is that courts are provided with a clear instrument which allows them the necessary flexibility in order to do justice to the parties in individual cases.

  2. 2. In commercial contracts, the possibility of a valid ex ante‎ choice of the law applicable to non-contractual obligations was recognized, subject to certain restrictions.318

  3. 3. Special rules were introduced to protect the victim in the case of traffic accidents.319 Thus, Art 4(2) and Art 7(2) of the Parliament’s 1st Reading (p. 49) Position recommended that the individual victim’s place of habitual residence should govern both the type of claim for damages (heads of damage) and quantification of damages, ‘unless it would be inequitable [to the victim320] to do so’.321

  4. 4. It was proposed to harmonize Member State rules concerning the introduction and ascertainment of foreign law, by requiring (a) the claiming party to identify the law(s) which he claimed to apply to his claim, and (b) the Member State court seised of the dispute to establish the content of the foreign law of its own motion, with the parties’ collaboration if required.322

  5. 5. The concept of ‘Community public policy’323 in Art 24 of the Commission Proposal was rejected in favour of a clarification of the public policy exception, to the effect that an award of non-compensatory damages may be regarded as being contrary to public policy.324

1.77  The rapporteur did not attempt to hide the motivation behind some of these amendments. In a comment written in August 2005, she stated:325

Historically we have been used to these types of proposals being worked on by the Commission and in Council working groups in a very technical way; Rome II is historic because it is the first time that the European Parliament has had the power of co-decision in such an area as private international law in a field with no preexisting Convention. It was therefore important that Parliament should challenge and question some of the Commission’s basic suggestions and also seek to extend the ambit of the text where the results will touch so directly on the daily lives of our citizens such as with damages in cross-border road traffic and other personal injury accidents.

(p. 50) However the European Parliament is not challenging or raising a debate merely to justify its own existence but rather to add a very different dimension to the legislative process; as private international law becomes communitarised, so it must come out of the technical working groups and into the political debating chamber. Some will argue that politicians should not interfere in ‘technical’ law, but unless law is grounded in a political process with full and open debate, it will never be acceptable to our citizens. At this difficult time in the European Union’s development,326 this is surely acceptable.

The Report of the European Economic and Social Committee

1.78  In June 2004, following a request by the Council on 8 September 2003, the European Economic and Social Committee (EESC)327 delivered its opinion on the Rome II Proposal.328 The EESC Opinion was largely favourable, both as to the lawfulness of the proposed Regulation329 and the overall substance of the Commission Proposal.330 The EESC recommended certain adjustments to the text put forward331 but otherwise urged the Commission ‘to complete its initiative as rapidly as possible’332 on the basis that the proposed Regulation would ‘bring inestimable benefits in terms of simpler application of the law’ and that ‘instead of having to establish in each individual case which system of rules on conflict of laws will apply and familiarise themselves with these rules which, at least in detail, differ from one Member State to another, users of the law will in future be able to use a single set of rules …’.333

The Council Deliberates

1.79  The Council was taking longer than its legislative partner to deliberate on the merits of the proposed Regulation. Between the Commission Proposal in July 2003 and September 2006, when the Council adopted its common position,334 the Council was presided over by seven Member States.335 (p. 51) From 2004, the work programme of every Presidency specifically identifi ed the Rome II proposal as an item requiring attention, yet progress was evidently slow.336

1.80  The Council’s Committee on Civil Law Matters (Rome II)337 first met to discuss the proposal in September 2003. Most delegations expressed support, at least in principle, for the Regulation.338 There were two significant early developments. First, in October 2003, both the United Kingdom339 and Ireland340 chose to opt-in to the Regulation in accordance with the Protocol arrangements governing their participation in Title IV measures under the Treaty of Amsterdam.341 Secondly, in March 2004, the Council Legal Service presented to the Council’s Rome II Committee an opinion on the legal basis for the proposed Regulation.342 That advice, and its consequences in terms of the discussions in Council, will be examined more closely as part of the discussion of treaty basis in the following chapter.343

1.81  At the invitation of the General Secretariat of the Council,344 18 Member States submitted written comments on the Commission Proposal.345 In light of these comments, and the Rome II Committee’s discussion at its early meetings, the outgoing Irish and incoming Dutch Presidencies prepared a revised text, with modest amendments to the Commission Proposal.346 A further draft from the Dutch Presidency followed in September 2004,347 in which the principal innovation was the tentative insertion, for discussion purposes, of a separate rule of applicable law for non-contractual obligations arising from industrial action. This was the result of a proposal by the Swedish delegation.348

(p. 52) 1.82  On 5 November 2004, the Council endorsed the so-called ‘Hague Programme’, sub-titled ‘Strengthening Freedom Security and Justice in the European Union’, setting out priorities in that policy area.349 The Programme required work on the Rome II proposal to be actively pursued as part of the programme of measures on mutual recognition.

1.83  In December 2004, the outgoing Dutch and incoming Luxembourg Presidency produced a joint revised text350 in the light of comments made during meetings of the Rome II Committee on civil law in the preceding two months.351 This document was in the nature of a discussion draft, setting out alternative proposals for addressing such matters as the scope of the Regulation,352 product liability,353 violations of privacy and defamation,354 and violation of the environment.355

1.84  During the United Kingdom Presidency in the second half of 2005, the Council’s Rome II Committee considered the amendments proposed by the European Parliament at first reading, accepting some but rejecting many of the novel aspects of the Parliament’s position, including (a) the more flexible rules for tort/delict generally, (b) the proposed deletion of the special rules for product liability, unfair competition, and violations of the environment, (c) the compromise proposal for violations of privacy and defamation, (d) the proposed special rules for traffic accidents, and (e) the rules concerning introduction and ascertainment of foreign law.356 A further draft, reflecting those discussions, was circulated by the outgoing UK and incoming Austrian Presidencies in December 2005.357

The Rise and Fall of the ‘Country of Origin Principle’

1.85  In the meantime, the debate that had already taken place within the Commission358 as to the relationship between private international law (p. 53) and EC law was played out before a wider audience. The course of that debate, centred on the so called ‘country of origin principle’, will be considered in Chapter 16 below.359 For present purposes, it suffices to note that the ‘principle’, which at the time of the Commission’s proposed Directive on services in the internal market threatened to reduce the Rome II Regulation to a subordinate role in determining the law applicable to non-contractual obligations in intra-Community cases, met with strong opposition and was ultimately shut firmly back in its box.

The Commission’s Amended Proposal

1.86  On 21 February 2006, the Commission published an Amended Proposal with the objective of adapting its original Rome II Proposal in light of the EP 1st Reading Position while reflecting proceedings in the Council.360 Of the 54 amendments adopted by the Parliament, the Commission accepted 16 as tabled, another 13 in modified form, and 5 in part only (including the general rule for tort/delict, substantially reversing the Parliament’s position) but rejected the remaining 20 (including, most notably, (a) the proposed abolition of the special rules for product liability, unfair competition, and environmental damage, (b) the modified rule for violations of privacy,361 (c) the newly proposed special rule relating to industrial action, (d) the special rules concerning traffic accidents, and (e) the proposals concerning pleading and proof of the applicable law).362 On almost every significant point of dispute, the Commission’s approach, if not its preferred wording, would ultimately prevail over that of the Parliament.

Political Agreement and Common Position of the Council

1.87  In February 2006, the Austrian Presidency presented to COREPER compromise proposals for certain of the Articles for discussion at a political level at the JHA Council.363 That discussion took place on 21 February,364 after which the Austrian Presidency circulated a further draft of the Regulation for comment.365 Following a further meeting of the Rome II (p. 54) Committee on 27–28 March 2006,366 the Presidency submitted a complete compromise package first to COREPER,367 and then to the JHA Council.368

1.88  At its meeting on 27–28 April 2006, the JHA Council reached political agreement on the text as a whole, with the exception of the recitals.369 That agreement was reflected in the Common Position adopted by the Council on 25 September 2006.370 The Council took its decision by qualified majority: Estonia and Latvia alone voted against, due to reservations on the special rule for industrial action.371 In general, the Common Position followed the approach of the Commission in its Amended Proposal, rather than that of the European Parliament.372 The principal differences from the Amended Proposal were (a) the total exclusion of violations of privacy and rights relating to privacy from the scope of the proposed Regulation,373 (b) the adoption of a special rule for industrial action designating the law of the country in which the relevant action was taken,374 and (c) the deletion of the provision favouring discretionary application of third country mandatory rules.375

1.89  The Commission, somewhat grudgingly, accepted the Council’s Common Position, while specifically reserving its position as to the law applicable in competition cases.376

(p. 55) The European Parliament (Second Reading Procedure)

1.90  If at first you don’t succeed, try, try, again.377 Having been rebuffed by the Commission and the Council, the European Parliament flexed its legislative muscles. In its second reading resolution on the Council’s Common Position, adopted on 18 January 2007,378 the Parliament joined issue with the other institutions on what it regarded as key points. In particular, the EP 2nd Reading Position (a) accepted the text of the Common Position general rule for tort/delict but added a recital emphasizing the need for a ‘margin of discretion’ to do justice in individual cases,379 (b) insisted on the deletion of the special rule for unfair competition,380 while accepting, at the same time the Common Position special rules on product liability and violations of the environment,381 (c) restated its proposal for a special rule on violations of privacy and rights relating to the personality,382 and (d) retained recitals (without any accompanying substantive provision) dealing with introduction and ascertainment of foreign law.383 In addition, and more controversially, the Parliament proposed what appeared, somewhat eliptically, to be a rule of substantive tort law to address its concern regarding the quantification of damages in personal injury cases (p. 56) (a provision principally but not exclusively aimed at protecting the victims of traffic accidents). The proposed new Art 21a provided:

In quantifying damages in personal injury cases, the court seised shall apply the principle of restitutio in integrum‎, having regard to the victim’s actual circumstances in his country of habitual residence.

1.91  During debate, Diana Wallis, the rapporteur, was forceful in her defence of the Parliament’s position, emphasizing the importance attached to the proposal being ‘[t]he ground plan, or roadmap, which will provide clarity and certainty for the basis of civil law claims across Europe’.384 She added:385

We need this, and we, here in Parliament, want to get it done, but it has to be done in the right way. This has to fit the aspirations and needs of those we represent. This is not just some theoretical academic exercise; we are making political choices about balancing the rights and expectations of parties before civil courts.

I am sorry that we have not reached an agreement at this stage. I still believe that it could have been possible, with more engagement and assistance. Perhaps it is because both the other institutions are not used to Parliament having codecision in this particular area—I am sorry, but you will have to get used to it!

1.92  The rapporteur addressed the special rules for unfair competition and violations of the environment, before continuing:

Now I come to the two big issues for this Parliament. The first is defamation. Please understand that we know only too well how difficult an issue this is. However, we managed to get a huge majority at first reading across this House, and you will likely see a similar pattern repeated here today. That the Commission decided to exclude this issue before we could consider it again was disappointing, to say the least. That it did so on the basis of a clear two-year review clause, which has now been abandoned, is unacceptable. We know the issues surrounding this area of media and communication will only increase and continue to haunt us. Maybe we cannot deal with it now, but we will soon be looking at Brussels I again, and it is imperative that jurisdiction and applicable law remain in step. So, would we deprive ourselves of the opportunity to look at this again? Exclusion may truly be the only answer, but this Parliament wants to try a little bit more to see if we cannot resolve this.

I turn to the issue that my colleagues have been most tenacious in their support for (and I am very grateful for that): damages in road-traffic accidents. Commissioner, we have the support of insurers, the support of legal practitioners, the support (p. 57) of victims, the support of those we represent, but somehow we cannot transmit these concerns to the Commission or to the Council. Even last week, I was confronted by a very senior justice ministry official who thought that what we were trying to do was the equivalent of applying German law to determine liability in respect of a road-traffic accident which had happened in the UK, where, of course, we drive on the ‘wrong’ side of the road. Do you really think we are that stupid? I wish people would have the courtesy to read and understand what we are suggesting: merely the accepted principle of restitutio in integrum‎—to put victims back in the position they were in before the incident. There should be nothing so fearful in this. Indeed, the illogical approach would be for a judge in the victim’s country to be able to deal with the case by virtue of the Motor Insurance Directives386 and Brussels I,387 and then have to apply a foreign, outside law in respect of damages. This, indeed, would be illogical—and that is the situation we are currently in. Please look at what we are saying and appreciate that, given the even the greater mobility of our citizens on Europe’s roads, this matter needs attention, sooner rather than later, and a four-year general review clause just will not do.

She concluded:

My last hope is that our debates will have brought the subject of private international law out of the dusty cupboards in justice ministries and expert committees into the glare of public, political, transparent debate. Therefore, all we ask is that you bear with us a little longer so that, together, the institutions of Europe can get this right.

1.93  Franco Frattini, Vice-President of the Commission and JLS Commissioner, reacted coolly.388 Like Mrs Wallis, he regretted the lack of a special rule for privacy and defamation, but indicated that the Commission had accepted the Common Position on this point on the ground of political expediency, there being (in his view) no possibility of a compromise position.389 He was, however, strongly opposed to the deletion of special rules, particularly that concerning environmental liability (a view that prevailed in the plenary session). As to the proposed Art 21a concerning quantification of damages in personal injury cases, he described the proposal as ‘very interesting’, but suggested that as a matter of harmonization of civil law, it fell (p. 58) outside the proper scope of the Rome II instrument.390 He nevertheless expressed sympathy for the Parliament’s concern with the position of victims in road traffic accidents.391 These comments were reflected in the Commission’s subsequent Opinion on the Parliament’s 2nd Reading Position, together with other specific observations and drafting points.392

The Conciliation Process and Adoption of the Regulation

1.94  Predictably, on 19 April 2007, the Council unanimously393 decided not to adopt the text of the Regulation as amended by the European Parliament in its 2nd Reading Position. As a result, the European Community equivalent of extra time, the conciliation process, was invoked. In this regard, Art 251(4) of the EC Treaty provides:

The Conciliation Committee, which shall be composed of the Members of the Council or their representatives and an equal number of representatives of the European Parliament, shall have the task of reaching agreement on a joint text, by a qualified majority of the Members of the Council or their representatives and by a majority of the representatives of the European Parliament. The Commission shall take part in the Conciliation Committee’s proceedings and shall take all the necessary initiatives with a view to reconciling the positions of the European Parliament and the Council. In fulfilling this task, the Conciliation Committee shall address the common position on the basis of the amendments proposed by the European Parliament.

1.95  Trilogues394 between the representatives of the Council, Commission, and Parliament395 took place in March and April 2007. Work on a compromise (p. 59) solution had, however, begun before this.396 In the run up to the Conciliation Committee meeting on 15 May 2007, agreement had been reached on the text of several recitals, but differences on the key points had yet to be bridged, with the Parliament in particular maintaining its demand for a special rule concerning violations of privacy and rights relating to personality.397 At that meeting,398 however, common agreement on the text of the Regulation was reached,399 with most of the disagreements on substantive provisions (including exclusion of privacy etc) being resolved in the Council’s favour. The European Parliament nevertheless secured the agreement of the Council and the Commission to a review clause requiring the Commission to examine and report on (a) the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to personality, (b) the effects of the way in which foreign law is treated in the Member States, and (c) the relationship between the Regulation and the Hague Traffic Accidents Convention.400 The Commission, in a separate statement, also promised to produce, before the end of 2008, a study on the options, including insurance aspects, for improving the position of cross-border victims of road traffic accidents, paving the way for a Green Paper.401

1.96  All that remained was for the agreed text to be approved by majority vote of the European Parliament402 and by a qualified majority in the Council. (p. 60) The Council approved the Regulation in the Environment Council on 28 June 2007, with Latvia and Estonia again voting against due to their objections to Art 9 (industrial action).403 The Parliament followed in adopting the Regulation on 10 July 2007. In recommending a favourable vote, Mrs Wallis felt able to claim at least a partial victory for the European Parliament:404

We left a clear mark, on behalf of Parliament, on the final text—a text which, thanks to Parliament, goes beyond the mere technical and legal, bringing private international law into the open to serve the practical needs of our citizens, particularly in the area of road traffic accidents.

However, we also dealt with technical issues: clarifying definitions on the environment or supplying a solution on the issue of unfair competition, and then grappling with the relationship between European conflict of law rules and internal market instruments. I am not entirely sure that we got it right. I find I have been congratulated from many quarters, which makes me a little nervous. Then we are still trying to have the same debates around Rome I and the review of the consumer acquis‎. We have, at some point, to get this relationship correct.

She continued:405

There are many leftovers from Rome II that form the basis of studies that I hope the Commissioner will mention in his declaration—studies on road traffic accidents, on defamation, and on the treatment of foreign law. All these issues are absolutely integral to the relationship between civil justice and the internal market. Indeed, we could say that the internal market will function only if we have a coherent system of civil justice.

Civil justice cannot just be an add-on to the internal market—some sort of limited competence where we tread only reluctantly at the invitation of Member States. I seem to remember a long time ago in 1999 in Tampere that there was a vision of an area of civil justice. Rome II was part of that. We need to refocus, to question whether we have a civil justice system in Europe that functions for all the users of the internal market and for our citizens, and is accessible and understandable. Rome II plays its part as forming the basis—the initial roadmap—but the following studies give us the chance to re-evaluate and make the next steps forward.

(p. 61) D. Conclusion: End of the Road?

1.97  The Rome II Regulation was published in the Official Journal of the European Union on 31 July 2007,406 and thereby (apparently) entered into force on 20 August 2007.407 As noted, it will apply from 11 January 2009. The process of development of the law applicable to non-contractual obligations seems, however, unlikely to stand still for long. Even before the Rome II Regulation is applied by any Member State court, the Commission is required by 31 December 2008 to submit the first, and perhaps most important, of its studies under the review clause, that concerning the law applicable to obligations arising out of violations and privacy. Further developments can be expected, in due course, in the areas of (a) interaction between contractual and non-contractual obligations,408 (b) unfair competition,409 (c) pleading and proof of foreign law,410 and (d) traffic accidents,411 as well as a report on the general functioning of the Regulation due in 2011.412 Those advocating reform of private international law rules within the European Community must also compete with those promoting harmonization of substantive law, including advocates for a European Civil Code. As such, the Regulation may be no more than a pit stop on what is already a very long journey.(p. 62)


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.

4  1.45 below.

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.

10  1.86 and 1.94 below.

11  For further discussion of the so-called ‘country of origin’ principle’, see 1.59–1.61, 1.85 and 16.04–16.31 below.

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.

13  Text to n 7 above.

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.

16  3.02–3.03 below.

17  16.43–16.46 below.

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>.

19  Art 4.

20  Arts 5 and 7.

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 [2006] ECR I-1145, discussed at 16.43 below.

24  See the summary at Report of Eric W Essén on the 1971 (Hague) Convention on the Law Applicable to Traffic Accidents, 1 (reproduced at <http://www.hcch.net/upload/expl19e.pdf>).

25  Leading to the Convention on the Law Applicable to Traffic Accidents (4 May 1971, reproduced at <http://www.hcch.net/index_en.php?act=conventions.text&cid=81>) (the Hague Traffic Accidents Convention) (4.114–4.120).

26  Leading to the Convention on the Law Applicable to Products Liability (2 October 1973, reproduced at <http://www.hcch.net/index_en.php?act=conventions.text&cid=84>) (the Hague Products Liability Convention) (5.49–5.53).

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 [1947] 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 [1971] 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 [1995] 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).

36  Ibid‎, s 11(1).

37  Morin v Bonhams & Brooks Ltd [2004] EWCA Civ 1802; [2004] 1 Lloyd’s Rep 702, [16] (Mance LJ, EWCA).

38  PILA (UK), s 11(2).

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, [23]; Trafigura Beheer BV v Kookmin Bank Co [2006] EWHC 1450 (Comm); [2006] 2 Lloyd’s Rep 455 (Aikens J, EWHC).

41  Ibid‎, s 14(3)(a)(i).

42  Ibid‎, s 14(3)(b).

43  Harding v Wealands [2006] UKHL 32; [2007] 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 [1997] LMCLQ 182; R Stevens (1997) 113 LQR 249; A Dickinson [1997] 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 [2005] EWHC 1323 (Ch); [2005] ILPr 630, [117], [119].

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).

47  Recognition of Trusts Act 1987; Dicey, Morris & Collins, ch 29. The relationship between the Rome II Regulation, the Hague Trusts Convention, and the 1987 Act is considered at 3.201–3.207 below.

48  See the authorities cited by Dicey, Morris & Collins, para 34-033, footnote 11.

49  T M Yeo, Choice of Law for Equitable Doctrines (2004). Also Dicey, Morris & Collins, paras 34-033 to 34-050.

50  e.g. Rickshaw Investments Ltd v Baron von Uexkull [2007] 1 SLR 377 (Singapore Court of Appeal) (breach of fiduciary duty).

51  e.g. Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595; [2006] QB 125, [97] (EWCA) (a questionable characterization of a claim for breach of confidence).

52  e.g. Base Metal Trading Ltd v Shamurin [2004] EWCA Civ 1316; [2005] 1 WLR 1157, [56]–[57] (Tuckey LJ), [65]–[77] (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.

60  Ibid‎, Art 100.

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.

63  Ibid‎, Art 104§2.

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.

67  Ibid‎, Art 16.

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).

72  nn 25–26 above.

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).

78  Ibid‎, Art 40(2).

79  Ibid‎, Art 41(1).

80  Ibid‎, Art 41(2)(a).

81  C W Fröhlich, n 75 above, 82–3, 95.

82  Ibid‎, Art 40(3).

83  Ibid‎, Art 38(1).

84  Ibid‎, Art 38(2).

85  Ibid‎, Art 38(3).

86  Ibid‎, Art 39(1).

87  Ibid‎, Art 39(2).

88  Ibid‎, Art 41.

89  Ibid‎, Art 42.

90  Ibid‎, Art 6.

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).

92  Ibid‎, Art 4(1).

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.

101  Wet Conflictenrecht Onrechtmatige Daad‎ (2001) (WCOD). P Vlas, ‘Dutch Private International Law: The 2001 Act Regarding Conflict of Laws on Torts’ (2003) Netherlands Int L Rev 221. An English translation is available at <http://www.nblonline.com/nbl/nbl.exe?location=none&language=en>.

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.

103  WCOD, Art 3(3).

104  Ibid‎, Art 5.

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.

106  Ibid‎, Art 6.

107  nn 25–26 above.

108  WCOD, Art 2(1).

109  3.108–3.109 below.

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.

116  Ibid‎, 3.

117  nn 25–26 above.

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’).

122  Concluded at Stockholm, 19 February 1974. An English translation of the Convention is available at <http://sedac.ciesin.org/entri/texts/acrc/Nordic.txt.html>.

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.

125  Ibid‎.

126  Council document 12544/98, 31.

127  Ibid‎, 27.

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).

130  1.15–1.17 above.

131  Art 133(b), sub-rule 1.

132  Ibid‎, sub-rule 2.

133  Ibid‎, sub-rule 3.

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.

140  Ibid‎, Art 132(a).

141  Ibid‎, Art 128.

142  Ibid‎.

143  Ibid‎, Arts 17 and 18.

144  Ibid‎, Art 19.

145  1.03 and 1.05 above.

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.

152  Original: ‘teach’.

153  Ibid‎.

154  2.62–2.78 and 2.106–2.109 below.

155  1.52, 1.56–1.57 below.

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.

163  Point 3 below.

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 [1976] 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.

169  Ibid‎, Art 1(e).

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].

182  The text of the proposal is reproduced in (1998) 45 Neth Int L Rev 465 and on the Group’s website at <http://www.drt.ucl.ac.be/gedip/documents/gedip-documents-8pe.html>.

183  GEDIP proposal, Arts 3–4.

184  Ibid‎, Art 7.

185  Ibid‎, Art 3(1).

186  Ibid‎, Art 3(4)–(5).

187  Ibid‎, Art 3(2).

188  Ibid‎, Art 3(3).

189  Ibid‎, Art 4(a).

190  Ibid‎, Art 4(b).

191  Ibid‎, Art 4(c). Also Art 5 (scope of applicable law) and Art 6 (direct action against the insurer).

192  Ibid‎, Art 7(1).

193  Ibid‎, Art 7(5).

194  Ibid‎, Art 7(2).

195  Ibid‎, Art 7(3).

196  Ibid‎, Art 7(4).

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).

198  Ibid‎, Art 1.

199  S C Symeonides, n 9 above, 177. In Professor Symeonides’ view (at 217), the GEDIP proposal was ‘close to perfection’.

200  Ibid‎, 217–18.

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’.

203  1.62 below.

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).

208  Ibid‎, Art 3 and 3A.

209  Ibid‎, Art 8.

210  Ibid‎, Art 9.

211  Ibid‎, Art 10 (cf 3.249–3.258 and 4.98 below).

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.

214  4.21–4.74 below.

215  Council document 11982/99, Art 3A.

216  4.80–4.83 below.

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.

221  Ibid‎, Art 7.

222  Cf ibid‎, Art 18.

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.

230  Ibid‎, para 1.5.

231  Ibid‎, para 1.7.

232  Ibid‎, Annex 2.

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.

236  Ibid‎.

237  Council document 8342/01 [27.5.2001], 9.

240  Ch 4 below.

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 …’).

242  Ibid‎, Art 3(2).

243  Ibid‎, Art 3(3). Cf Regulation, Art 4(3).

244  Ibid‎, Art 5.

245  Ibid‎, Art 6.

246  Ibid‎, Art 8.

247  Ibid‎, Art 7.

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’.

250  Ibid‎, Art 10(4).

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.

258  1.56–1.57 above.

259  OJ C80, 1 [10.3.2001].

260  EC Treaty, Art 67(5) introduced by Art 2(4) of the Treaty of Nice.

261  See, in particular, 1.94–1.95 below.

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’.

263  Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L12, 1 [16.1.2001]) (Brussels I Regulation), as amended; consolidated text as of 1 January 2007 at <http://eur-lex.europa.eu/LexUriServ/site/en/consleg/2001/R/02001R0044-20070101-en.pdf>.

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)).

266  4.84–4.95 below.

267  Commission Proposal, Art 4.

268  Ibid‎, Art 5.

269  Ibid‎, Art 6.

270  Ibid‎, Art 7.

271  Ibid‎, Art 8.

272  Ibid‎, Art 9(5).

273  Ibid‎, Art 10(1).

274  Ibid‎, Art 12(1). The rule preserving overriding mandatory rules of the forum (Art 12(2)) remained.

275  14.22–14.23 below.

276  Commission Proposal, Art 1(1).

277  Ibid‎, Art 1(1).

278  Ibid‎, Art 1(2)(b).

279  Ibid‎, Art 1(2)(f).

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).

282  See Written Evidence annexed to Committee’s final report, ‘The Rome II Regulation’, 8th Report of Session 2003–2004 (HL Paper 66) (HL Report), report (with links to evidence) available at <http://www.publications.parliament.uk/pa/ld200304/ldselect/ldeucom/66/6602.htm>

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.

313  Text to n 322 below.

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).

322  Ibid‎, Arts 12–13.

323  Text to n 275 above.

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).

330  Ibid‎, paras 4 to 8.

331  Ibid‎, para 9.

332  Ibid‎, para 1.2.

333  Ibid‎, para 1.3.

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].

341  Text to n 179 above.

342  Council document 7015/04 [2.3.2004] (partly accessible).

343  2.94–2.103 below.

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].

348  Discussed at 9.02–9.03 below.

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).

353  Ibid‎, Art 4.

354  Ibid‎, Art 6.

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].

358  1.58–1.61 and 1.63 above.

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).

374  Ibid‎, Art 9.

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.

385  Ibid‎.

386  14.100–14.106 below.

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].

401  Ibid‎ (14.32 below).

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.

404  EP document CRE 09/07/2007 — 22, available at <http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20070709&secondRef=ITEM-022&language=EN&ring=A6-2007-0257>. Also EP 3rd Reading Report, 8–9.

405  Ibid‎.

406  OJ L199, 40.

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).

412  Ibid‎, Art 30(1).