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PURPOSE: to
harmonise the rules on law applicable to non-contractual obligations (Rome
II). LEGISLATIVE
ACT: Regulation (EC) No 864/2007 of the European Parliament and of the
Council on the law applicable to non-contractual obligations (Rome II). BACKGROUND:
within the context of establishing an area of freedom, security and justice
the Community has adopted a number of judicial measures concerning co-operation
in civil matters that affect cross-border transactions or that distort the
good functioning of the internal market. The Treaty on European Union
specifies that measures to create an internal area of freedom, security and
justice should include making Member States’ rules on the conflict of laws
and jurisdiction compatible. This is because the EU’s internal market
requires predictable litigation, certainty as to the law applicable, the free
movement of judgments and for the conflict-of-law rules in the Member States
to designate the same national law irrespective of the country of the court
in which an action is brought. Prior to the adoption of this Regulation the Member States had no common rules to designate the
applicable law in non-contractual matters, and each court observed its
national rules. Accordingly, legal solutions varied widely from one Member
State to another, and parties were tempted to refer disputes to the court
which applied the most favourable law to them (a practice known as forum
shopping). Indeed, the Member States have been trying to harmonise the
rules concerning conflicts of laws in matters of tort/delict since 1972. CONTENT: the purpose of this Regulation, therefore, is to lay down
a uniform set of rules of law applicable to non-contractual obligations,
irrespective of the country of the court in which an action is brought. This
should increase certainty as to the applicable law and improve the
predictability of legal disputes and the free movement of judgements. As a
general rule, the draft Regulation states that the law applicable to a
tort/delict is the law of the country where damage occurred. Only in certain
limited, duly justified circumstances, the general rule will be derogated
from and special rules applied. The Regulation
contains special rules on product liability, unfair competition,
environmental damage, infringements of intellectual property and industrial
action. The initiative more particularly concerns questions related to civil
liability for damage caused to others, particularly in the event of an
accident. It applies, for example, to road accidents, defective products and
environmental pollution. Expanding trade and travel in the EU will mean that
disputes of this nature are bound to become more frequent. The
Regulation, does not deal with the violation of personal privacy or rights.
However, under the terms of the conciliation Agreement, the Commission has
been asked to review this matter not later than 31 December 2008 and to
commission a study on the situation in the field of the law applicable to
non-contractual obligations arising out of violations of privacy and rights
relating to personality, taking into account rules relating to freedom of the
press and freedom of expression in the media. Violations of privacy resulting
from the handling of personal data will be also dealt with in the
Commission's study. The Rome II rules aim to strike a reasonable balance
between the interests of the alleged perpetrator of the damage and the
victim. With Rome II, the Community harmonisation of
the rules of private international law of civil and commercial obligations is
complete. The international jurisdiction of courts and the recognition and
enforcement of judgments given in another Member State are already governed
by Council Regulation (EC) No 44/2001 of 22 December 2000, which applies to
both contractual and non-contractual obligations. The rules concerning the
law applicable to contracts have already been harmonised by the Rome
Convention of 1980 on the law applicable to contractual obligations. APPLY: 11
January 2009. The Regulation will apply only to events giving rise to damage
which occurs after its entry into force.
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