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Rome II Regulation Applicable in EU

Starting from today, 11 January 2009, Regulation no. 864/2007 on the law applicable to non-contractual obligations (Rome II) is applicable in the Member States (see its Art. 32), excepting Denmark.

In the comments to one of our previous posts, some debate was raised as to the proper construction of Art. 31 (“Application in time”) of the Regulation, according to which the new regime applies to “events giving rise to damage which occur after its entry into force”. A very large majority of scholars (almost all the published articles) takes the view that, for the purposes of Art. 31, the date of entry into force coincides with the date of application of the Regulation, so that it would be applicable to events giving rise to damage occurring on or after 11 January 2009.

Other elements, taken from the legislative process (see the comments to the abovementioned post), would suggest the opposite view that, following the ordinary rules set by Art. 254(1) of the EC Treaty, the Regulation entered into force on 20 August 2007, thus applying to events occurred on or after this previous date. The latter interpretation is shared by the SCADplus (summary of EU legislation) webpage on Rome II, which holds no official value, and is referred to by Prof. Hartley in his article on the Rome II Reg. (“Choice of Law for Non-Contractual Liability: Selected Problems Under the Rome II Regulation“, in ICLQ (2008), p. 899 ff., at footnote 2 on p. 899, quoting Prof. Morse in Dicey and Morris).

Two others points are worth mentioning, as regards the final provisions of Rome II:

1. according to Art. 29(2), the Commission is expected to publish in the OJ the list of existing international conventions “to which one or more Member States are parties at the time when this Regulation is adopted and which lay down conflict-of-law rules relating to non-contractual obligations” (mainly, the 1971 Hague Convention on Traffic Accidents and the 1973 Hague Convention on Products Liability): the deadline for Member States to notify of such conventions was set to 11 July 2008. To my knowledge, the list has not yet been published;

2. according to the review clause in Art. 30(2), not later than 31 December 2008 the Commission was expected to present a study “on the situation in the field of the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to personality, taking into account rules relating to freedom of the press and freedom of expression in the media, and conflict-of-law issues related to Directive 95/46/EC […]”. Neither this study has been released, as yet, as far as I know.

Readers are encouraged to report on first cases of application of the new Regulation before national courts.

Comments on this entry are closed.

  • Ivana Kunda January 12, 2009, 11:09 am

    The issue of temporal scope of application of the Rome II Regulation is indeed interesting. There seems to be some uncertainty as to the relevant dates. In the attempt to contribute to the discussion here is the translation of the respective part of my article on the Rome II Regulation published in Croatian (Uredba Rim II: ujedna?ena pravila o pravu mjerodavnom za izvanugovorne obveze u Europskoj uniji, Zbornik Pravnog fakulteta Sveu?ilišta u Rijeci (Collected Essays of the University of Rijeka Faculty of Law), Vol. 28, No. 2, 2007, pp. 1269-1324).

    “Given the fact that the instrument is in form of a regulation and no implementation in national legal systems is needed, the Regulation is obliging in its entirety and directly applicable in the Member States as of the date prescribed therein. The Regulation sets twofold condition for its application rationae temporis. Namely, according to the general rules on entry into force of the Community instruments, this Regulation shall enter into force on the twentieth day from the day of its publication in the Official Journal, while it specifically provides that it shall apply to all the events giving rise to damage which occur on or after the day of publication, i.e. on of after 20 August 2007 (Article 31). Likewise, it is provided that it shall apply as of 11 January 2009 (Article 32). This means that the court should not apply the Regulation to the proceedings commenced before 11 January 2009 irrespective of the time when the event giving rise to damage occurred, or to the proceedings commenced on or after 11 January 2009 of the event giving rise to damage occurred prior to 20 August 2007. Therefore, the Rome II Regulation is applicable only in the situations where the proceedings have commenced on or after 11 January 2009, and in which the event giving rise to damage occurred on or after 20 August 2007.” (p. 1279.)

  • Andrew Dickinson January 12, 2009, 4:36 pm

    Whatever solution is adopted, there is no doubt that the wording of Arts. 31 and 32 leaves much to be desired, and will generate satellite litigation. My own view is that the Regulation should be taken to apply to the determination on or after 11 January 2009 of the law applicable to non-contractual obligations where the event giving rise to damage occurred on or after 20 August 2007. This is not retrospective effect, but a modified prospective effect. That said, many will continue to argue for the pragmatic “11 January 2009 for all purposes” approach, and (however difficult to reconcile with the text of the Regulation and the travaux) this cannot be ruled out as a possible solution when Member State courts and the ECJ give their verdict.

  • Olga Tyton January 14, 2009, 7:15 pm

    As regards Rome II and international conventions there is another issue worth mentioning:

    Recital 37 of the Rome II Regulation reads as follows:

    “The Commission will make a proposal to the European Parliament and the Council concerning the procedures and conditions according to which Member States would be entitled to negotiate and conclude on their own behalf agreements with third countries in individual and exceptional cases, concerning sectoral matters, containing provisions on the law applicable to non-contractual obligations”.

    This proposal has been adopted by the Commission just before Christmas. See COM (2008) 893.

  • Thomas Ewert February 4, 2009, 6:21 pm

    Maybe someone reads this old thread and kindly helps me:

    What is the exact date that the regulation entered into force?

    As stated in the original article by Giorgio Buono and again in the comment by Andrew Dickinson, I would say that “following the ordinary rules set by Art. 254(1) of the EC Treaty, the Regulation entered into force on 20 August 2007”.

    The reason I think that is correct is Art. 254 EC Treaty. There it is stated that “Regulations […] shall enter into force on
    the date specified in them or, in the absence thereof, on the 20th day following that of their publication.

    Nevertheless Hartley (ICLQ [2008] on p. 899 at footnote 2) specifies the 19th of August and I ran across that date again today in Kadner Graziano’s article in RabelsZ 73 (2009, 1, 3 – in german).

    I wonder why. Is it just a wrong calculation, twice? Or is there a reason for the confusion?

  • Giorgio Buono February 4, 2009, 11:20 pm

    If we assume that the ordinary rules laid down in Art. 254 TEC apply, I would say that 20 August 2007 is the date of entry into force of Rome II.

    Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971, determining the rules applicable to periods, dates and time limits, states in Art. 3:

    1. […] Where a period expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be considered as falling within the period in question.

    Reg. No 864/2007 (Rome II) was published in the OJ on 31 July 2007. So, the twenty days are to be calculated from 1 August 2007 (included), and the twentieth day is 20 August 2007.

  • David O'Neill May 4, 2009, 3:20 pm

    Could anyone point me towards an article on how the rome II regulation affects common lawyers?

  • Andrew Dickinson May 4, 2009, 5:12 pm

    There’s plenty to choose from for common and civil lawyers alike. A good starting point from a common law perspective is the commentary by Adam Rushworth and Andrew Scott in the [2008] Lloyd’s Maritime and Commercial Law Quarterly (August). The Ministry of Justice has also published guidance online, which provides a useful overview (see http://www.justice.gov.uk/publications/guidance-rome-ii-non-contractual.htm)

  • Martin George May 4, 2009, 8:47 pm

    …and the OUP monograph on the Rome II Regulation isn’t too bad either.