Verbatim report of proceedings

Tuesday, 5 July 2005 - Strasbourg

30. The law applicable to non-contractual obligations ('Rome II')

  President . The next item is the report (A6-0211/2005) by Mrs Wallis, on behalf of the Committee on Legal Affairs, on the proposal for a regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (‘Rome II’) (COM(2003)0427 C5-0338/2003 2003/0168(COD)).

  Franco Frattini, Vice-President of the Commission. (IT) Mr President, ladies and gentlemen, as you will know, the Commission has proposed a measure for the payment of damages, which aims to pursue three objectives.

The first objective is that of predetermining the solutions and therefore of guaranteeing legal certainty to the citizens and to the economic operators that are victims of torts.

The second objective is that of facilitating the resolution of disputes before the courts and encouraging mutual recognition of the decisions made by the judges.

The third objective is, obviously, that of facilitating as far as possible the resolution of such disputes.

In order to achieve these objectives we have proposed a general rule, that is to say, the rule of application of the place where the damage was caused, or rather the place of direct damage. We decided to adopt such an approach, because it is the most widespread solution in the Member States’ legal systems and, in our opinion, the solution that provides the best balance between the parties.

The Commission proposal also included a number of special rules, such as liability for defective products or environmental damage. I believe that the general rule does not always allow an appropriate balance to be achieved in these particular issues, for which special provisions are needed.

The measure provides for a certain degree of flexibility for judges, in order to allow them to take account of exceptional circumstances. Such flexibility, however, has to be limited, in order to avoid compromising the general objective, or rather legal certainty. In that regard, it is clear that allowing judges to exercise full discretion would make it difficult to predetermine the legal certainty that is one of the main objectives of this initiative, since economic operators and citizens wish to know in advance which law will apply to their situation.

In the light of what has been said, I should like to congratulate the rapporteur on her high-quality report, the outcome of extremely in-depth consultations, and I should like to thank her for her determination to proceed swiftly, in order for the report to be approved before the summer.

In my opinion, the only problematic aspect is an excessive margin of flexibility granted to judges in the amendments tabled by the rapporteur, allowing them to take account of special circumstances on a case-by-case basis. This excessive amount of discretion risks compromising strict legal certainty.

We have difficulty, moreover, in accepting the amendments abolishing the special rules. I referred to product liability, which provides for the full protection of the consumer, or to environmental liability. In my opinion, scrapping those special rules would be dangerous.

On the other hand, I fully agree with the solution reached by the rapporteur on sensitive issues, such as press defamation and the link between international private law and the internal market. They are two extremely delicate sectors and I believe that the compromise reached is satisfactory.

Finally, with reference to traffic accidents, I should like to congratulate Mrs Wallis once again on having thoroughly studied this issue, which is of great practical importance for citizens. As the Commission, we agree with the intention to pursue an extremely in-depth analysis, for example in the framework of implementing Rome II.

  Diana Wallis (ALDE), rapporteur. – Mr President, I think this proposal is ground-breaking for Europe, ground-breaking for Parliament. We have had no previous coherent set of rules dealing with applicable law over such a vast arena of civil and commercial claims. We now have a potential roadmap for litigation and access to justice in the internal market, building on the structures of Brussels I in relation to the jurisdiction of our courts.

For Parliament, this is the first time we have acted as a co-legislator in such an area of private international law. I am proud that via our committee we have raised the policy debate in a number of areas where we might not have been expected to tread. Let me touch on some of those debates.

We have thought long and hard about the kind of general rule required, looking for the approach that can best deliver justice in our courts. It seems to be one, if I can put it this way, that gives a little subsidiarity to our judges. We start from the Commission’s clear rule but then give some room for manoeuvre, to deliver justice in the many and various situations that would doubtless arise in litigation. Here there is a clear message about the difficulty of characterising torts inherent in the method used by the Commission. Our approach avoids this difficulty, unless we can find good definitions. I would accept my Socialist colleague’s amendment on product liability on this basis. I think it is a good definition and rule and would add to the debate.

On road traffic accidents and personal injuries in general, we have sent a clear message about the injustice of applying the damages regime of the country of the accident. If I may illustrate this, I have a constituent who had an accident in Spain. He has been offered GBP 4000 according to Spanish law. It would be GBP 43 000 according to English law and it is in England that he has to live out his life. This problem has to be addressed, if not here, then by further Commission study and proposal.

On the use of foreign law, the success of Rome II will depend on good judicial cooperation, proper use and respect for one another’s laws. The record to date is patchy. Courts often avoid the application of foreign law. The court and parties should – or must – consider this issue, otherwise we are all wasting our time here. That is a matter that has to be closely monitored if we are to deliver a true area of civil and commercial justice.

On defamation, where Parliament was expected to be active, I was grateful for the opinion of my colleagues in the Committee on Civil Liberties, Justice and Home Affairs. I personally share their view but have always felt that we would have to go further to respect the media’s concerns about freedom of expression.

We now have a compromise which has wide support across the political groups and, more importantly, across publishing and the journalistic world. It is unclear whether it will work technically, but it gives the direction for new discussion in the Commission and the Council. It indicates what is acceptable in achieving a balance between freedom of expression and the rights of the victims of defamation.

Finally to our old friend: the country-of-origin principle. I shall say it again: it is not a choice of law rule; it will not give you the answer to the question as to which law should be applied to a dispute between two civil parties. If it gives you an answer, it will probably not be the one that the supporters of the principle want. It is an important principle of Community law in the field of public or state regulatory law and should be given full weight as such. I believe we have done that in the solution we have put forward in the committee’s report. I hope that will survive intact after amendments from either side.

I thank everyone in the Legal Affairs Committee and the LIBE Committee who have supported our work on this report and express my considerable gratitude to our secretariat on legal affairs who have helped us by carrying out extensive research and making efforts towards producing a report that I believe we can be proud of as a committee.

  Barbara Kudrycka (PPE-DE), draftsman of the opinion of the Committee on Civil Liberties, Justice and Home Affairs. – (PL) Mr President, I should like to join the Commissioner in expressing my sincere thanks to Mrs Wallis for her extremely perceptive report, and for having brought about compromises on many difficult issues.

Although this is a complex and technical regulation, it represents a very important stage in the establishment of a coherent European civil law system. The lack of such a system would make it a great deal more difficult for the common market to function, and even though the latter is sometimes criticised, it forms the basis of European integration. It is for this reason that all the comments submitted by both the Committee on Civil Liberties, Justice and Home Affairs and, above all, the Committee on Legal Affairs, are absolutely key.

Given the short timeframe, and above all in view of its competences, the Committee on Civil Liberties, Justice and Home Affairs concentrated primarily on Article 6 of the regulation, which indicates the law applicable in situations where a person’s honour and reputation are violated, or where a person or company is defamed by media publications. It also outlines the application of this law in the event of possible legal disputes. In the opinion of the Committee on Civil Liberties, Justice and Home Affairs, for which I acted as draftsman, the European Union must guarantee its citizens a high level of legal security. In the event that a publication violates a person’s honour and reputation, it is therefore key that this person’s subjective rights should be protected above all else, and that this should take place in the country where the offence has been committed.

Our basis for these considerations was the fact that there is no current threat to media freedom in Europe, since the latter is protected both by the constitutions of the Member States and by European courts. Furthermore, a compromise reached in the Committee on Legal Affairs meant that an amendment has been tabled that takes into account the position of the Committee on Civil Liberties, Justice and Home Affairs on the one hand, and, on the other hand, establishes such a precise legal framework that European publishers should be able to rest content. I support these amendments, since this solution, especially in the context of the Brussels 1 Regulation, grants legal protection to publishers, as well as providing a guarantee that the rights of victims will be enforced.

  Rainer Wieland, on behalf of the PPE-DE Group. – (DE) Mr President, I, too, would like to thank the rapporteur for the way she has handled this difficult material, which eventually boiled down to only a few aspects, but these were fought over with particular vigour. Rather than specifically addressing these, I would like to consider, in the light of what has been said over the last few weeks, two ways in which this legislation brings us forward both in practical terms and in principle.

One of them has already had light shed on it in this debate: the familiar case of the road traffic accident, which needs to be properly taken forward and resolved. It is, I believe, in this instance, that one is most likely, and most frequently, to see the citizens, in the most literal sense of the word, ‘collide with’ Europe, and afterwards ask themselves where their rights begin and end.

The second, that of the law relating to the press, is about fundamental principles. Over recent weeks, we have seen the fourth estate, which keeps a close watch on how the first three work together, and which is, in some sense, the public’s primary lobby, itself becoming a lobby. The case of Princess Caroline of Monaco might lead one to believe that this is of relevance only to people who are rich, beautiful, famous, important or noble, but it can, by its very nature, also affect ordinary people, in ways we have not seen since the lost honour of Katharina Blum. A new Europe-wide understanding of fundamental rights is dawning, and, as we have to accept the possibility of it putting free expression of opinion and rights relating to the personality on a collision course, it is a good thing that we are now endeavouring to draw a dividing line that will work in practice, while also incorporating a review clause in the regulation.

Just one final point, quite unspectacular, but important: Mrs Wallis proposed a new option to take account of the way in which the law develops ...

(The speaker stopped speaking before his time had expired)

  Katalin Lévai, on behalf of the PSE Group. – (HU) I too would like to congratulate the rapporteur, and I would like to draw attention to only one or two items. It is my opinion that coherent, unified European regulations in private international law relating to civil and commercial non-contractual obligations are a significant step for the continued development of the area of freedom, security and justice in terms of cooperation in the field of justice and home affairs. We can see that economic mobility and citizens’ mobility have increased with internal market integration, and consequently issues relating to compensation obligations in this area have become an everyday occurrence, and may in fact include a number of international components. Consolidating the legal provisions applicable in such cases at European level is a matter of urgency for a variety of reasons, and I think that this regulation answers this need.

This is a matter of utmost importance from the point of view of businesses, as uniform legislation guarantees them legal certainty, predictability and consistency. It is advantageous for citizens, consumers, and potential injured parties and victims too, as it lays down provisions that serve to protect them, and makes relevant legislation more transparent. All of this will help to bring the European Union closer to its citizens through the legislative process too. A particular merit of the draft provisions is that they take into account, and at the same time facilitate, the work of the European Court in interpreting the law. I would like to draw particular attention to the broad spectrum covered by the provisions of the draft regulation, ranging from damages sustained by consumers and product liability, to traffic accidents and environmental damage, and defamation. Consolidation of European law on liability for international environmental disasters is an aspect that I, as a Hungarian Member of the European Parliament, consider particularly important. Let me remind you of the cyanide contamination of the river Tisza by Romania a few years ago, and of the Rosia Montana (Verespatak) project. I repeat: this regulation is a major step forward in terms of legal certainty, predictability and transparency.

  Monica Frassoni, on behalf of the Verts/ALE Group. – (IT) Mr President, ladies and gentlemen, I should like to thank the Commission and Mrs Wallis for the excellent work carried out, which has produced a useful legislative text.

We are, however, very perplexed by one of the points in the text, about which we hope to succeed in persuading Mrs Wallis to change her mind. The point relates to Article 7 on specific legislation on violations of the environment. We do not consider that that specific rule should be abolished and we indeed believe that, in the overall economy of Mrs Wallis’s report, abolishing it would deprive the Commission’s proposal of an important element.

As far as violations of the environment are concerned, I believe that at European level, as well as in many Member States, the law is very weak and there is no legal certainty, and therefore depriving victims of this option offers no advantage whatsoever.

My group has decided to abstain in the event that this aspect of Mrs Wallis’s report is adopted. We hope, however, to succeed in persuading Mrs Wallis to abandon this amendment before tomorrow.

  Franco Frattini, Vice-President of the Commission. (IT) Mr President, ladies and gentlemen, I will be very brief. I should like to once again thank the rapporteur and all of the Members who have spoken.

I should just like to mention a point that has already been discussed. Firstly, as I said before, the Commission also believes that the special sectors, such as the protection of the environment, deserve to be treated differently, and therefore I take the liberty of drawing the rapporteur’s attention to that matter.

As regards press defamation, I confirm my appreciation of the compromise that the rapporteur proposed to the Commission and which the Commission accepted.

As regards the amendments tabled after the vote by the Committee on Legal Affairs, I believe that they run the risk of in fact reproducing a mere variant of the country of origin principle, that is, a variant of a principle which, in my opinion, we cannot lay down and decree in this House.

To conclude, in confirming my appreciation of the first compromise reached and voted on by the Committee on Legal Affairs, I must, however, admit to having some doubts about the second proposed change, that is, Amendments 56 and 57.

  President .  The debate is closed.

The vote will take place on Wednesday at 12 noon.

Written statement (Rule 142)

  Fausto Correia (PSE). – (PT) With regard to the report by Mrs Wallis (A6-0211/2005) on the law applicable to non-contractual obligations (Rome II) I should like to say, if I may, that, in order to ensure freedom of expression, together with a legal framework for protecting privacy and legal certainty for journalists and the media in the European Union, I voted:

a) in favour of Amendments 57 to Article 6 and 56 to Recital 12, and

b) against Amendment 10 to Recital 12(a) and Amendment 54 to Recital 26(a), both from paragraph 3.