When to Depart from Rome?
The Commission has published lists of the Conventions which Member States have notified under Art. 26(1) of the Rome I Regulation and Art. 29(1) of the Rome II Regulation.
It appears that Belgium alone among the Member States has not notified the Commission of any derogating conventions, even though it has ratified the Hague Traffic Accidents Convention and signed (but not ratified) the Hague Products Liability Convention, two instruments to which Art. 29(1) Rome II was clearly intended to apply.
The reasons for these omissions are unclear, with the deadlines for notification having long passed (28 July 2008 in the case of Rome II and 17 June 2009 in the case of Rome I). The failure to notify should not prevent Belgian Courts from applying the Hague Traffic Accidents Convention, just as it should not prevent any other Member State court from applying any convention involving a third state, to determine the law applicable to contractual or non-contractual obligations. Belgium’s apparent lack of engagement with EU private international law instruments, resulting in doubt for those litigating before Belgian courts, is however unfortunate. It is unclear whether the Commission intends to take steps to address this.
Failing to notify the information required by ‘Rome I’ and ‘Rome II’ is certainly unfortunate. Providing incorrect information is worse. Italy declared it had no conventions to notify under Article 26(1) of the ‘Rome I’ regulation (OJ C 343 of 17 December 2o10, p. 4), although it is in fact part of the Hague Convention of 15 June 1955 on the law applicable to the international sales of goods, just like Finland, France and Sweden (who notified the Commission accordingly). According to the ‘Archivio dei trattati internazionali’ of the Italian Ministry of Foreign Affairs, the 1955 Hague Convention is still in force for Italy (http://itra.esteri.it/itrapgm/Visualizza.asp?ID=47159). The same is true according to the Hague Conference’s website (http://www.hcch.net/index_en.php?act=conventions.status&cid=31). There may be very good reasons for Italy to denounce the Convention but, as long as no such denunciation takes place, Italian courts are expected to determine the law applicable to international contracts for the sale of goods – according to Article 25 of the ‘Rome I’ regulation – by resorting to the Hague Convention, not the ‘Rome I’ regulation. The information provided by the Italian government appears to be definitely misleading in this respect.