Comments on: Rome II Regulation Applicable in EU

By: Martin George

Martin George — Mon, 04 May 2009 20:47:55 +0000

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

By: Andrew Dickinson

Andrew Dickinson — Mon, 04 May 2009 17:12:04 +0000

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)

By: David O'Neill

David O'Neill — Mon, 04 May 2009 15:20:49 +0000

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

By: Giorgio Buono

Giorgio Buono — Wed, 04 Feb 2009 23:20:26 +0000

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.

By: Thomas Ewert

Thomas Ewert — Wed, 04 Feb 2009 18:21:35 +0000

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?

By: Olga Tyton

Olga Tyton — Wed, 14 Jan 2009 19:15:45 +0000

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.

By: Andrew Dickinson

Andrew Dickinson — Mon, 12 Jan 2009 16:36:17 +0000

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.

By: Ivana Kunda

Ivana Kunda — Mon, 12 Jan 2009 11:09:10 +0000

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.)