The non-contractual obligations from delicts ex regulation (EC) No 864/2007 “ROME II”

SUMMARY: I. PREMISE – II. THE DEFINITION OF “NON-CONTRACTUAL-OBLIGATION” – III. DESIGNATION OF THE LAW APPLICABLE – IV. OPTIO LEGIS – V. DELICTS – V.A) General rules – V.B) Road accidents – V.C) Product liability – V.D) Environmental damage – V.E) Infringement of intellectual property rights

I. PREMISE

In 2005, the European Parliament has proposed a series of amendments to its proposals in 2003 to develop a Community legislation on the law applicable to non-contractual obligations; thus saw the EC Regulation no. 864/2007 “Rome II”.

On the basis of the general rules (Article 297 Treaty on the Functioning of the EU), in the absence of other provision, the Regulation entered into force twenty days after its publication in the Official Journal of the European Union, ie 19 August 2007.

Its application over time is governed by Articles. 31 and 32, according to which it “shall apply to events occurring after its entry into force and giving rise to damage” (art. 31), “with effect from 11 January 2009” (Art. 32).

II. THE DEFINITION OF “NON-CONTRACTUAL-OBLIGATION”

You will encounter considerable difficulties in establishing what the regulation meant by ” non-contractual obligations ” , because on one hand it is very clear what we read in paragraph 11 of the preamble : “the rules of conflict of laws laid down in Regulation should also cover obligations arising from non-contractual liability “on the other hand is less clear art. 2 that seems to make a U logical “for the purposes of this Regulation, damage shall cover any consequence arising out of tort , unjust enrichment , negotiorum gestio or culpa in contrahendo.”

Overall, it can be seen as art. 2 of the Regulation, the result of the numerous interventions of the European Parliament and of the Council since 2005 , has as its main objective is to bring the scope of the same in this case that the substantive law of the various Member States are called ” quasi-delict”.

However, it is the European Court of Justice to define the applicability of the Rome II Regulation, since the notion of ” non-contractual obligations ” are due all those relations that have arisen as a result of damage to property protected by law between subjects mostly indeterminate , also possibly linked by a pre-existing relationship , contractual or not.

III. DESIGNATION OF THE LAW APPLICABLE

The link between the two regulations relating to maintenance obligations (Rome I and Rome II) is also evident with regard to the principles and techniques used, because both use multiple methods of coordination, combining them in a similar way.

The traditional method of spatial localization is inspired by the connecting factor of habitual residence, in which both the regulations provide a definition and the Rome II Regulation, however, also uses other objective criteria, different for each type of bond.

Compared to these numerous clauses provide exceptional flexibility, allowing exceptionally to apply the law of a State other than that indicated in the beginning, where it appears from all the circumstances that the obligation has connections with that State manifestly closer (so-called proximity principle ) .

The same logic is found in the use of the technique of the so-called connection accessory according to which the non-contractual obligation that is connected to a pre-existing relationship between the parties (a contract) is attracted by the law applicable to this report , but its operation is not automatic , but conditioned to the absence in this case of a legal system with which the obligation denotes a manifestly closer connection , or in other words excluding operation of the secondary connection whenever it results in applying the law of a State under other related obligation.

Furthermore, the use of this criterion allows you to submit to the same law all claims between the parties, have contractual or non-contractual nature , which means not only a simplification of the situation, but avoids problems of classification with respect to those elements of the case where the contractual nature or tort claim is uncertain.

The proximity principle can also reconnect the power granted to the parties to choose the applicable law, recognized also in tort.

IV. OPTIO LEGIS

In Rome II Regulation freedom of choice of law is governed by art. 14 paragraph 1 which provides that ” the parties may agree to submit the contractual obligation to the law of their choice: a) agreement after the occurrence of the event giving rise to the damage or b) if all the parties engaged in an activity commercial , also by an agreement freely negotiated before the event giving rise to the damage”.

The power of choice is permitted for all types of non-contractual obligations , tort or otherwise, with two exceptions : the obligations arising from acts of unfair competition and those arising from violation of the rights of intellectual property , because as we shall see by analyzing the rules governing these bonds , the regulation expressly provides that “you can not derogate from the applicable law with an agreement pursuant to art. 14 ” (Articles 6.4 and 8.3).

Other than as required in contractual matters , where the choice may be made ​​at any time , in non-contractual matters the provision in question requires that the store of choice has been concluded at a later date than the act giving rise to the damage (art. 14.1 letter . a) , and this is quite evident as the parties have no reason or interest to determine the applicable law before it occurs that gives rise to the obligation (eg, it is unthinkable that two parties agree on the applicable law to compensation for damage caused by a motor vehicle collision that only hypothetically might involve ).

Ex ante choice is possible only if all the parties are pursuing a commercial activity (Article 14.1 letter . B ), ie when the parties are mutually bound by contractual obligations ; also the choice must be made by an agreement freely negotiated , thus excluding the ‘ unilateral indication of the chosen law in the general conditions , and can not affect the rights of third parties.

Article . 14 of the Regulation , paragraphs 2 and 3 further restricts the autonomy of the parties in order to avoid both the circumvention of the law of the State, member or non-member , who at the time of occurrence of the event giving rise to the damage relate all the relevant facts of the situation, on the other fraud to Community law where such elements are located, when you experience the event giving rise to the damage, in one or more Member States.

V. DELICTS

A) General rules

 The European Court of Justice , in relation to the bar of the tort, welcomed, on jurisdiction , the so-called theory of ubiquity of the tort, stating that the tort occurred may be considered (locus delicti commissi ) as the place where the incident happened that caused it (locus actus ) as the place where the harmful event has occurred (locus damni ) in the preamble of the Rome II Regulation does not make any reference to the case law of the Court of Justice.

” General rule ” in matter relating to tort is art. 4.1 which , except for different provisions of the Regulation provides that the law applicable to non-contractual obligations in tort is that of the country in which the damage occurs , while not detect that in which the said event occurred that gave rise to the damage or those in which the indirect consequences of that fact; also according to paragraph 17 , for the country in which the damage occurs is defined as those in which it was respectively suffered the injury to the personal or property damage occurred.

With regard to offenses committed in whole or in part, in one country but whose direct consequences are realized in one or more different States ( the cc.dd. illicit complex ) , a regulation is necessary to apply the distributive criterion locus damni , so if you realize damage in different countries, then they will be laws in different states to regulate the compensation of the damage that is being made in each (so-called treatment -dimensional).

The same art.4 also allows for in paragraphs 2 and 3, two possible exceptions to the general rule governed by paragraph 1 : the first states that “If the alleged perpetrator and the injured party are habitually resident in the same country at the time when the damage occurs , the law applies to that country “(eg traffic accidents ), in which case the State in which the damage occurs is almost completely irrelevant, even if the court should take into account the rules on road traffic and safety regulations at the place of the accident.

The second states that ” if from the circumstances of the case clearly that the unlawful act has links manifestly more closely connected with a country other than those referred to in paragraphs 1 and 2, shall apply the law of that country “; question of a clause by which the communitarian legislator intended to introduce a degree of flexibility in the discipline, in order to achieve the application of the law of the place which is really the center of gravity of the situation.

B) Road accidents

 Currently force within the European Union two different disciplines of private international law of road accidents, for the twelve Member States that had signed the Hague Convention of 1971 at the time of the adoption of the Regulation, the latter “does not preclude “the Convention itself (Article 28 paragraph 1).

For the other members obviously applies the regulation and then, in the absence of free choice by the parties concerned (Article 14), the applicable law will be identified on the basis of the provisions of Art. 4, subject to the enforcement of road safety rules in force in the State where the accident occurred (Article 17).

C) Product liability

The first special rule of the regulation is that concerning liability for defective products, it covers only the liability for fault that may arise as a result of the movement of goods and non- contractual liability arising out of any defects.

In fact, the non-contractual liability can be added to that arising from a contract, but also disregard them , and to allow the victim of the damage directly contact the manufacturer of the bad thing.

The regulation does not provide a definition of “product”, so you must make an independent qualification referring to EU Directive no . 85/374/EEC : according to Art. 2 of the 1985 Directive for product “means all movables , with the exception of primary agricultural products ( products of the soil , farming, fishing , which have not undergone transformations ) , even though incorporated into another movable or immovable “.

The same directive defines the following notion of “producer” , understood not only as the manufacturer of a finished product , the producer of any raw material or the manufacturer of a component part , but also any person who, by putting his name , distinctive marks on the product presents himself as its producer or import into the European Union for the purposes of sale, hire , leasing etc..

In general for the obligations in tort art. 4.1 of the Regulation refers, as we have seen , the law of the State where the damage occurs , however, in relation to defective products , the dispersion of the links suggested to make determination of the applicable law by the convergence of multiple elements to the same State; significant was the Hague Convention of 1973 on liability for defective products.

The Rome II Regulation envisages various solutions for the simplest situation, in which responsible and damaged their habitual residence in the same country at the time the damage occurred , art. 5 leads to the application of the law of that State, thus recalling the general rule laid down in paragraph 2 of the preceding article.

In other cases, in accordance with Art . 5.1 the law applicable to the non arising out of damage caused by a product is:

– ” The law of the country in which the person sustaining the damage had his or her habitual residence when the damage occurred, if the product was marketed in that country” (Article 5.1 letter . A).

– ” The law of the country in which the product was acquired, if the product was marketed in that country ” (Article 5.1 letter . B), in this way, in addition to promoting legal certainty , you get the result of subject to the same liability regime all providers operating in the state in which the product has been sold.

– ” The law of the country in which the damage occurred, if the product was marketed in that country” , in the absence of the criteria set out in the preceding paragraphs (Article 5.1 letter . C ).

There still remains the possibility that a product is put on the market in a given state without the consent of the manufacturer , which therefore does not provide that against him may be relied upon the law of that State , for this was introduced in the Regulation a foreseeability clause , which art. 5.1 Paragraph 2 states that ” if the producer could not reasonably foresee the marketing of the product or of a product of the same type in one of the states referred to in succession by the provisions of the preceding paragraph shall apply the law of the State in which they habitually resides the same producer”.

Finally, article 5.2 repeats the criterion of the most closely connected, already covered in paragraph 3 of the preceding article.

D) Environmental damage

 Another special rule is also dedicated to liability for environmental damage , defined as ” the adverse change in a natural resource , such as water , soil, air, impairment of a function performed by that resource for the benefit of another natural resource or the public, or impairment of the variability among living organisms “(as recital 24 ) 14.

The consequences of environmental disasters , by definition , do not respect national borders and travel through the atmosphere and water; also has been used increasingly the propensity of companies to ensure that their activities are definitely or potentially harmful to take place in States without environmental standards or with a low level of environmental protection.

Hence the need, at an international level , to impose minimum standards of environmental protection and Recoverability of damages, mainly through the signing of treaties capable of establishing special liability regimes ; international instruments contain substantive rules on liability relating to certain environmental damage.

This leaves no uniform rules for many situations for which it is necessary to resort to private international law.

The Rome II Regulation devoted to “environmental damage” art. 7 according to which , in the case of obligations arising from cc.dd. environmental disasters that affect a large number of subjects, the rule applies established based on a general basis for the obligations in tort art. 4.1, which relates to the law of the state ” in which the damage occurs irrespective of the country in which the said event occurred that gave rise to the damage “.

In the second part of Art. 7 , the communitarian legislator took into account the possibility that a subject, which operates in a country with high environmental standards , produces damage in a state with lower levels of protection , in which case the application of the lex loci would damni for the damaged a comparative disadvantage , filled granting him the right to ” base his or her claim on the law of the country in which the event giving rise to the damage occurred “.

This is the only provision of the regulation based on the so-called ubiquity of the offense, in fact locus delicti must be understood to be the place where the tort is produced ( theory of action ) and the place where the damage occurred (the theory of the event) , it is a solution which had been drawn up by the European Court of Justice for all liabilities in tort for the application of the Brussels Convention of 1968.

The favor for the damaged art. 7, especially for the optio legis unilaterally permitted , justified by the fact that the person responsible for the damage gets a huge economic benefit from its activity detrimental and is in line with the general approach of the European Union to counter the transfer in non- members of activities harmful to the environment.

Article 7 does not prescribe the period within which the claimant must exercise the optio legis, as they are different procedural rules state that determine the time over which the plaintiff is precluded from submitting new claims.

The general rule analyzed just be seen in conjunction with art. 17, in fact even more than for other cases , for environmental damage must consider the journalistic standards of safety and conduct of the State in which the activity takes place that due to the occurrence of damage in another State (ex. if an authorized activity in State A , since the harmful emissions are conformed with the environmental standards in force there , causing damage in the State B in which instead emissions exceeding the threshold permitted , however, the judge must take into account the fact that the alleged perpetrator has acted in accordance with the rules in force in the State in which it conducts its business.

E) Infringement of intellectual property rights

The article 8 of the regulation deals with the violation of intellectual property rights will concern the copyright and related rights , the right to the protection of databases and industrial property rights ( patents and trademarks ) .

The violation of these rights can configure breach of contract but also give rise to liability of tort type , the designated discipline is rather inflexible and not only departs from the general rule pursuant to art. 4 but excludes the possibility that the parties may resort all’optio legis art. 14.

According to art. 8 we have the principle of the “law of the country for which protection is asked” (lex loci protectionis ) , so in practice the infringement of a right of industrial property shall be governed by the law of the State in which the patent was issued , the trade mark is registered , the model has been deposited , the same way a violation of copyright will be governed by the law of the State in which the right has been violated.

The regulation adds a section on intellectual property rights protected by Community law (the reference is to the Community trade mark ) for these rights is the locus protectionis communitarian territory is understood as a unit , with the obligations arising from their violation , which are subject to specific communitarian rules.

However, with respect to matters not covered by the communitarian instrument , using the principle contained in the second paragraph that provides for the application of the law of the State in which the violation was committed.