Brussels, 23/07/2003 (Agence Europe) - On Tuesday, the European Commission adopted a "Rome II" proposal of regulation aimed at harmonising the rules on the law on non-contractual obligations. The proposal concerns all obligations toward third parties outside signature of a contract. The initiative focuses on the question of civil liability for damage caused to others, particularly in the case of accidents such as traffic accidents or accidents caused by a defective product, or pollution or defamation. Generally speaking, the Commission proposes that the law enforced should be the law in the place where the damage is done. However, if the party whose liability is invoked and the person who has received damage reside in one and the same country, then the law of this country will be applied. Also, if the non-contractual obligation presents obviously closer links with another country, then the law of that country will apply. Such would be the case, in particular, if both parties were bound by a contract that presents a link with non-contractual obligation. However, the proposal of regulation suggests adjustments for a certain number of situations: de facto liability for defective products, unfair competition, invasion of privacy, environmental damage, damage to intellectual property rights, and unjustified gain. In every case, the parties may come to an agreement for application of another law, on condition that this is not detrimental to third party rights.
For defamation and invasion of privacy, the Commission proposes the general rule of the place where the damage is done, although it had envisaged proposing the place where the victim resides. The various discussions and hearings organised showed that all the press, especially the British press, were opposed to the first proposal, it is said at the Commission. Furthermore, Article 6 of the proposal of regulation allows the legislation of the country of the relevant court to be applied, if application of another law is contrary to its fundamental principles with regard to freedom of the press and information. This article is intended above all to allow a British judge to apply British law (far more liberal) rather than any other, which could result in a sentence, it is explained at the Commission. On the other hand, the article may not be employed in a more restrictive sense in another country in order to avoid application of British law.
Several types of non-contractual obligations are excluded from the scope of the regulation, especially those resulting from family relations relating from letters of exchange between beneficiaries of a trust or arising from nuclear damage sustained.
The Commission gives its assurance that it is necessary to clarify the so-called "conflict of laws" rules, which decide which national legislation will be applied, in order to ensure greater legal security and transparency. At this stage, the Member States do not have common rules for deciding which law should apply, explained Mario Tenreiro, Head of the Commission's Civil Judicial Cooperation Unit. This creates legal uncertainty since the law applicable, and hence the solution, may vary according to which tribunal is chosen, it stresses, all the more as, in many States, the rules are based on case law and are not therefore always very clear. At the present time, the general rule is that of the country where the harm is done, but some countries including Germany leave the choice up to the victim. The Commission also considers that this should facilitate mutual recognition of judicial decisions in this area, from one Member State to another.
After enforcement of the Nice Treaty, this regulation will be adopted in co-decision by the European Parliament and Council. The regulation will not apply in Denmark. The United Kingdom and Ireland, which will not necessarily be bound to this either, may join thanks to their "opt in" clause.
The regulation will complete the establishment of a Community private law. The question of the relevant tribunal for both contractual and non-contractual obligations is already settled by a regulation of December 2000 (EUROPE of 8 January 2001), which replaces a former convention. The law applying to contractual relations is governed by the Rome I Convention that the Commission will soon be putting forward for revision (EUROPE of 18 January 2003, p.11). The Commission had presented its first proposals on Rome II a little over one year ago (EUROPE of 4 May 2002).