Rome II and Small Claims Regulations published in the Official Journal
The Rome II Regulation (see the dedicated section of our site) and the Regulation establishing a European Small Claims Procedure have been published in the Official Journal of the European Union n. L 199 of 31 July 2007. The official references are the following:
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ n. L 199, p. 40 ff.): pursuant to its Articles 31 and 32, the Rome II Regulation will apply from 11 January 2009, to events giving rise to damage occurred after its entry into force (the twentieth day following its publication in the O.J., according to the general rules on the application in time of EC legislation).
Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (OJ n. L 199, p. 1 ff.). The text of the Regulation is accompanied by four annexes, containing the standard forms to be used by the parties and the court in the procedure, as follows:
- Annex I: Form A – Claim form, to be filled in by the claimant (see Art. 4(1) of the Reg.)
- Annex II: Form B – Request by the Court or Tribunal to complete and/or rectify the claim form (see Art. 4(4) of the Reg.);
- Annex III: Form C – Answer form, containing information and guidelines for the defendant (see Art. 5(2) and (3) of the Reg.);
- Annex IV: Form D – Certificate concerning a judgment in the European Small Claims Procedure (to be filled by the Court/Tribunal: see Art. 20(2) of the Reg.).
According to its Art. 29, the ESCP Regulation will enter into force today (1 August 2007, the day following its publication in the O.J.), and will apply from 1 January 2009.
As regards the temporal application of Rome II, if the suggested construction of Art 31 is correct (i.e. that “entry into force” refers to a date 20 days after publication in the OJ), what effect does the word “apply” have in Art 32? Does it refer to the date of institution of proceedings or the date of the hearing on which the court considers the applicable law issue or the date of judgment? On this view, whatever solution is adopted, there may be an opportunity for litigants to manoevre to obtain a more favourable law, according to whether the pre-existing or new regime applies. In the circumstances, it seems to me that there might be scope for arguing that “entry in force” in Art 31 should refer not to the twenty date period but to the date of application in Art 32. What do others think?
An alternative view is that Art 32 should be construed as an entry into force, rather than a date of application, provision, but this (instinctively) seems even more strained than the first argument presented above.
My own reading of it is that the Regulation will apply, for events giving rise to damage occurring on or after 19 August 2007, to proceedings brought (i.e. the date of institution) on or after 00.00 on 19 January 2009. Prior to that, one would presume that (in the UK) the 1995 Act will apply to tortious claims for damage-causing events taking place after entry into force but before the date of application (i.e. 19 August 2007 – 18 January 2009).
Your second argument, to my mind, doesn’t fit with the Guide linked to by Giorgio above. Rome II would seem to be covered by the combined application of these points:
20.1. In legislative acts, a distinction is made, according to the legal effects to be obtained, between the date of entry into force, the date from which provisions are to have effect, and the date of application.
20.2. Acts of general application enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication.
20.2.2. A distinction must be made between entry into force and application, which do not necessarily coincide.
(e) Deferred application of regulations
20.10. A distinction is sometimes drawn between the entry into force of a regulation and the application of the arrangements introduced by it, which is deferred. This is done, for example, in the case of regulations which set up common market organisations. The purpose of the distinction may be to enable the new bodies provided for in the regulation (for example, management committees) to be set up immediately and to enable the Commission to adopt implementing measures on which those new bodies have to be consulted.
20.11. Should it prove necessary to defer the application of part of a regulation until a date after its entry into force, the regulation must clearly specify the provisions concerned.
This Regulation shall enter into force on (the day/nth day following that of its publication in the Official Journal of the European Union).
It [or Article N] shall apply from …’.
I cannot help but think that something has gone wrong here, as the Regulation contains two provisions concerning its application in time, and no entry into force provision (cf Reg 44/2001, Arts 66.1 and 76). Of course, as Martin points out, Art 254.1 EC Treaty fills the gap where there is no entry into force date, but the result is curious.
On Martin’s view, if I act in an arguably wrongful manner on or after 20 August 2007 but before 11 January 2009, my conduct will contingently be subject to two applicable law regimes (old and new), depending on when proceedings are brought. If the old regime is more favourable to me, I could of course investigate the possibility of bringing proceedings for a negative declaration before 11 January 2009 to secure the benefit of that regime. To my mind, that would be absurd. If Art 32 is to be taken at face value, as a provision concerning the temporal application of the Regulation, rather than its entry into force, I would prefer an approach which focuses on the date of determination (i.e. of application by the court or tribunal of rules of non-contractual liability), rather than the date of institution of proceedings. I wonder, however, whether there is still scope for this issue to be clarified as a “slip” rather than an intended consequence of the Regulation. Art 27 of the Commission proposal (Entry into force and application in time) seems eminently more sensible.
(due to technical reasons, this comment has been divided in four parts)
I cannot help agreeing with Andrew Dickinson about what seems an undesirable result of the hiatus between the date of entry into force of the Regulation (20 August 2007) and the date of application (11 January 2009). He provides a persuasive example of the resulting uncertainties and the possible manoeuvres of the parties in order to take advantage of the more favourable regime.
However, a number of elements can be found to support the view that the distinction entry into force/date of application is an intended one, both (a) from a comparison between the joint text approved by the Conciliation Committee and the official text published in the OJ and (b) by analysing the evolution of the Rome II text in the codecision procedure:
(a) Art. 30(1) of the joint text, dealing with the review clause, states “Not later than …*, the Commission shall submit […] a report…”. The footnote marked with * fills the blank space fixing a period of “[F]our years after the date of entry into force of this Regulation”. In the official text of Reg. 864/2007, this reference is replaced as follows: “Not later than 20 August 2011, the Commission…”. This could be read as a clear intention to set the entry into force of the Rome II Reg. on 20 August 2007.
(b) As Andrew Dickinson points out, the initial Commission’s proposal contained a single provision on entry into force and application in time, referring to the same date:
“Article 27: This Regulation shall enter into force on 1 January 2005. It shall apply to non-contractual obligations arising out of acts occurring after its entry into force”.
The Parliament’s first reading did not change the provision (and it never dealt with the issue later on, thus endorsing the modification made by the Council).
As far as I can get from the documents publicly available, the provision on application in time was split in two different articles by the Council’s working text of 22 December 2005 (doc. n. 16027/05), still keeping the consistency of entry into force and application (just the former was mentioned):
“Article 27 –Application in time
This Regulation shall apply to damage or harm occurring after the entry into force of this Regulation.
Article 27A –Entry into force
This Regulation shall enter into force on […]”.
The Commission’s revised proposal of February 2006 returned to the single provision.
The “big” change was made by the Council in its subsequent doc. n. 7432/06 of 16 March 2006, where the two concepts made their first appearance with different dates. This working text is important since it clearly shows the legislators’ mind to make the Regulation applicable at a later stage than its entry into force:
“Article 27 –Application in time
This Regulation shall apply to events giving rise to damage (…) occurring after the entry into force of this Regulation.
Article 27A –Entry into force
1. This Regulation shall enter into force [9 months after its adoption].
2. This Regulation shall apply from [15 months after its adoption,] except for Article 26, which shall apply 9 months after the adoption of the Regulation”.
As it is apparent from the available documents, the issue was shortly discussed by the Committee on Civil Law Matters of the Council, and some Member States’ delegations pointed out the uncertainties of a two-limb provision, that have been persuasively raised by Andrew Dickinson. But the solution was supported by the Austrian presidency, as it is reported in the “Summary of discussions” held on the text of doc. n. 7432/06 (see doc. n. 7709/06 of 3 May 2006, p. 6):
“Article 27 and 27 A
[…] Several delegations considered that the distinction between the date of entry into force and the date of application was confusing. The Presidency pointed out that the date of entry into force brought along obligations for Member States, which would have to be fulfilled prior to application (e.g. notification of Conventions). A few delegations considered that 15 months was too short and suggested 18 or even 24 months for application”.
The provision was thus “simplified”, setting aside any reference to a date of entry into force: since April 2006 (doc. n. 7929/06 of 10 April 2006, the first publicly available after doc. n. 7432/06), the provisions (Art. 27 and Art. 27A) have the same structure that has been adopted in the Council’s Common Position (Art. 31 and Art. 32) and maintained later on, up to the joint text agreed upon in the Conciliation’s stage and in the official version. One could argue that, setting aside any specific date for the entry into force of the Regulation, the legislators did rely on the general rules on the matter (Art. 254(1) of the EC Treaty: “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”).
However, if the obligations for the Member States to be fulfilled prior to the application of the Regulation are to be identified in the duty of notification of existing international conventions (Art. 29 of the final text), it must be pointed out that Art. 32 provides a special regime for the *application* of this provision, so there would be no need to rely on the *entry into force* of the Regulation . By the way, Art. 29 refers to a date (11 July 2008) that is calculated taking into account a third, different element: the official adoption of the Regulation (11 July 2007: see Art. 29 in the joint text version, stating that “By [12 months after the date of the adoption of this Regulation], Member States shall notify the Commission…”).
My conclusion is that, even if the legislators were probably not fully aware of the problems arising from setting two different dates for the entry into force and the application of the Regulation, this distinction is (to some extent, at least) an intended one.
This leaves of course open the issue of construing the term “apply” in Art. 32, on which further reflection is needed.
(Giorgio’s 4th post): (4/4)
Links to Council’s working documents referred to above (for texts not
included in this list, please refer to the Rome II section of our site):
– doc. n. 16027/05 of 22 December 2005:
– doc. n. 7432/06 of 16 March 2006:
– doc. n. 7709/06 of 3 May 2006:
– doc. n. 7929/06 of 10 April 2006:
Thanks for comments, as you cite the working documents, it does not seem that the delegations realized the discrepancy. I do not see any other solution than an amendment, to be adopted asap, in any case prior to 11 January 2009.
As the regulation does not “apply” yet, I do not think that any judge would apply it to events occurring prior to 11 January 2009, even prior to the adoption of such amendment. Therefore, any forum-shopping can actually occur only after this date – i.e., only by waiting with the claim.
So the general approach I would take is that the regulation actually “enters into force” on 11 January 2009 and that this will be clarified by the amendment.
I have always assumed that the reference to the “entry into force” in article 31 of Rome II was a lapsus linguae. The date to which article 31 is referring is not the one determined by art. 254 (1) of the EC Treaty, but the “date of application” determined by article 32. The purpose of article 31 was to clarify that the relevant element to determine the application in time of the Regulation is not “when the damage arises” but “when the event giving rise to the damage” occurs. In certain type of damages, such as environmental damages or products liability, this temporal difference may be important. As Andrew Dickinson explains, understanding that the term “enter into force” in article 31 as a cross reference to art. 254 (1) EC Treaty would lead to completely absurd results.
I would say that, while aiming to set two different dates for the entry into force and the application of the Rome II Regulation, the co-legislators did not pay attention to the consequences of Art. 31. In making this distinction, perhaps they had in mind other effects (like the Member States’ obligation to notify the international conventions referred to in Art. 28 and Art. 29).
It is interesting to note that the same solution as regards the provisions on application in time has been introduced by the Council in its latest working text of the Rome I Reg.
In its initial Proposal – COM(2005)650 fin. – the Commission had inserted this sound provision:
“Article 24 – Entry into force and application in time
This Regulation shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.
This Regulation shall apply from [one year after entry into force].
It shall apply to contractual obligations arising after its entry into application. However, for contractual obligations arising before its entry into application, this Regulation shall apply where its provisions have the effect of making the same law applicable as would have been applicable under the Rome Convention of 1980.”
In the latest Council’s text (doc. n. 11150/07 of 25 June 2007), this single article is split into two, retaining the Rome II’s solution.
“Article 25 – Application in time
This Regulation shall apply to contracts concluded after its entry into force.
Article 26 – Date of application
This Regulation shall apply from [18 months after the date of adoption of this Regulation], except for Article 24, which shall apply from [12 months after the date of adoption of this Regulation].”
On the issue, see also compromise amendments nn. 43 and 44 presented by the EP Rapporteur Dumitrescu in the meeting of the EP JURI Committee held on 10 September 2007 (doc. n. PE393.856v01-00 – 681958 of 28 August 2007). The Rapporteur retains the “split” structure, but following the Commission’s Proposal, with a different text (Art. 23c: “This Regulation shall apply to contracts concluded after its date of application”).
Note that in the Dutch translation of the Regulation, for example, matters are complicated even further, as the heading of article 32 is translated in Dutch as ‘inwerkingtreding’, which means ‘entry into force’. Consequently, the Dutch text all of a sudden now seems to suggest that the date of entry into force is 11 January 2009, instead of 19 August 2007…. I don’t think that an inaccurate translation like this has any legal consequences, but it does add to the general confusion, though.