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Time to Update the Rome I Regulation

The Council has adopted a corrigendum to all versions of the Rome I Regulation to correct what appears to be an “obvious error”.  Art. 28, which had previously provided that the Regulation would apply to contracts concluded “after” (French: “après”; German: “nach”) 17 December 2009, will now refer to contracts concluded “as from” (French: “à compter du”; German “ab”) 17 December 2009, bringing it in line with Art. 29 which requires that the Regulation be applied “from” 17 December 2009.  The corrigendum was first published on 8 October and itself revised on 19 October.  Under the procedures for corrigenda (set out in a Council Statement of 1975), the amendment will apply unless the European Parliament took objection within 8-days (and there is no reason to believe that this is the case).  It is understood that the text of the corrigendum will appear in the Official Journal later this month.

The change would appear satisfactorily to put to bed the lacuna which had troubled the German delegation to the Council’s Civil Law Committee, with the result that lawyers concluding agreements on 17 December 2009 can now rest more easily.  Any legal opinions relating to such contracts can now, with confidence, be based on the Rome I Regulation (as opposed to the Rome Convention).

Unfortunately, those grappling with the Rome II Regulation do not have the same comfort.  As has been highlighted on these pages, there remains a controversy as to whether the Regulation applies to events giving rise to damage “which occur after” 20 August 2007 (the Regulation’s apparent entry into force date under Art. 254 EC) or those occurring “from”/”after” 11 January 2009 (the Regulation’s application date) (see Arts. 31-32).  The problem here is not so much the use of the word “after” in Art. 31 in contrast to the word “from” in Art. 32 (a mere trifle by comparison), but the fact that the Regulation uses different terminology (“entry into force”; “application”) in these two provisions dealing with its temporal effect and does not (explicitly, at least) stipulate an entry into force date in either of them.  Commentators disagree as to the correct solution, and a division of opinion has emerged (for example) in England (where the majority favour 20 August 2007 as the relevant date) and Germany (where opinion is divided, but is understood numerically to favour 11 January 2009).  Member State courts will, no doubt, need to grapple with this soon.  The question is: who will get there first, and which solution will they prefer?

Comments on this entry are closed.

  • Jan von Hein November 7, 2009, 9:55 am

    On the intertemporal application of the Rome II Regulation: The German Federal Court of Justice has opted, in its first judgment on the Rome II Regulation (9 July 2009 – Xa ZR 19/08, para. 17, available at http://www.bundesgerichtshof.de) for 11 January 2009 as the decisive date.

  • Andrew Dickinson November 7, 2009, 12:57 pm

    From a quick glance, the reasoning appears brief and not to address the issues raised above surrounding the distinction between “entry into force” and “application” dates, and the effect of Art. 254 EC. Perhaps, the point was not essential for the decision, which I understand concerned injunctive relief to prevent the future use of unfair contract terms?

    I also note that there is one English case which, in passing and not as part of the reasons for decision, supports the 20 August 2007 view (see Maher & Anor v Groupama Grand EST [2009] EWHC 38 (QB) (23 January 2009) http://www.bailii.org/ew/cases/EWHC/QB/2009/38.html, para. 16). In that case, the event giving rise to damage (a traffic accident) occurred on 29 July 2005, so no question as to the Regulation’s application arose.

  • Jan von Hein November 7, 2009, 1:47 pm

    A good point, but not as strong as it appears at first. I readily concede that the case concerns injunctive relief, so that para. 17 may at first glance be considered as a mere obiter dictum. See however, para. 22 of the decision as well, which deals with an injunction concerning unfair standard conditions in contracts concluded before 11 January 2009. Here, the Court argues that insofar the autonomous German conflicts rule on torts (Article 40(1) EGBGB) should apply. Thus, the decision actually confirms the prevailing opinion found in the German literature on the subject.

  • Andrew Dickinson November 7, 2009, 1:58 pm

    That’s helpful, thanks. Is there any suggestion in the judgment (or elsewhere) that the temporal effect point was argued, with reference to the Treaty, the literature (which as I understand points both ways) and other materials?

    In any event, it seems that the Angl0-German division of opinion on this point will continue for the time being.

  • Andrew Dickinson November 27, 2009, 11:46 am

    The Rome I corrigendum has now been published in the Official Journal:

    http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:309:0087:0087:EN:PDF

    In a related development, statutory instruments implementing the Regulation in England, Wales and Northern Ireland (and implementing Art. 7 in the UK) have now been published. A separate SI for Scotland is awaited. The UK has taken the opportunity to extend the Regulation to conflicts between the constituent parts of the UK or between one or more of those constituent parts and Gibraltar. See:

    1. The Law Applicable to Contractual Obligations (England and Wales and Northern Ireland) Regulations (SI 2009/3064) amending the Contracts (Applicable Law) Act 1990 and legislation relating to limitation periods to reflect the Regulation and extending its effect to Gibraltar.

    2. The Financial Services and Markets Act 2000 (Law Applicable to Contracts of Insurance) Regulations (SI 2009/3075) amending SI 2001/2635 with respect to insurance contracts dealt with under Art. 7 of the Rome I Regulation.

    Both sets of Regulations are available, with explanatory memoranda, at http://www.opsi.gov.uk/si/si200930