Common Position (EC) No 22/2006 of 25 September 2006 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting Regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (ROME II)
Date: 2006-09-25
Institutions: Council of the European Union
Subjects: civil law, commercial law, drafting of EU law, judicial cooperation in criminal matters in the EU, law of obligations, single market

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COMMON POSITION (EC) No 22/2006

adopted by the Council on 25 September 2006

with a view to adopting Regulation (EC) No …/… of the European Parliament and of the Council
of … on the law applicable to non-contractual obligations (ROME II)

(2006/C 289 E/04)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Articles 61(c) and 67 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Acting in accordance with the procedure laid down in
Article 251 of the Treaty (2),

Whereas:

(1)

(2)

(3)

(4)

The Community has set itself the objective of main-
taining and developing an area of freedom, security and
justice. For the progressive establishment of such an
area, the Community is to adopt measures relating to
judicial cooperation in civil matters with a cross-border
to the extent necessary for the proper func-
impact
tioning of the internal market.

According to Article 65(b) of the Treaty, these measures
are to include those promoting the compatibility of the
rules applicable in the Member States concerning the
conflict of laws and of jurisdiction.

The European Council meeting in Tampere on 15 and
16 October 1999 endorsed the principle of mutual
recognition of judgments and other decisions of judicial
authorities as the cornerstone of judicial cooperation in
civil matters and invited the Council and the Commis-
sion to adopt a programme of measures to implement
the principle of mutual recognition.

On 30 November 2000, the Council adopted a joint
Commission and Council programme of measures for
implementation of the principle of mutual recognition
of decisions in civil and commercial matters (3). The
programme identifies measures relating to the harmoni-
sation of conflict-of-law rules as those facilitating the
mutual recognition of judgments.

(1) OJ C 241, 28.9.2004, p. 1.
(2) Opinion of the European Parliament of 6 July 2005 (OJ C 157 E,
6.7.2006, p. 371), Council Common Position of 25 September
2006 and Position of
the European Parliament of … (not yet
published in the Official Journal).

(3) OJ C 12, 15.1.2001, p. 1.

(5)

(6)

(7)

(8)

(9)

(10)

The Hague Programme (4), adopted by the European
Council on 5 November 2004, called on work to be
laws
pursued actively on the rules of conflict of
regarding non-contractual obligations (‘Rome II’).

The proper functioning of the internal market creates a
need,
the
in order to improve the predictability of
outcome of litigation, certainty as to the law applicable
and the free movement of judgments, 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.

The material scope and the provisions of this Regulation
should be consistent with Council Regulation (EC)
No 44/2001 of 22 December 2000 on jurisdiction and
the recognition and enforcement of judgments in civil
and commercial matters (5)
and the
Rome Convention on the law applicable to contractual
obligations (6).

(‘Brussels

I’)

This Regulation should apply irrespective of the nature
of the court or tribunal seised.

Claims arising out of ‘acta iure imperii’ should include
claims against officials who act on behalf of the State
and liability for acts of public authorities, including liabi-
lity of publicly appointed office-holders. Therefore, these
matters should be excluded from the scope of this Regu-
lation.

and collateral

Family relationships should cover parentage, marriage,
affinity
in
Article 1(2) to relationships having comparable effects to
marriage and other family relationships should be inter-
preted in accordance with the law of the Member State
in which the court is seised.

relatives. The

reference

(11)

The concept of a non-contractual obligation varies from
one Member State to another. Therefore for the purposes
of this Regulation non-contractual obligation should be
understood as an autonomous concept.

(4) OJ C 53, 3.3.2005, p. 1.
(5) OJ L 12, 16.1.2001, p. 1. Regulation as last amended by Commis-
sion Regulation (EC) No 2245/2004 (OJ L 381, 28.12.2004, p. 10).

(6) OJ C 27, 26.1.1998, p. 34.

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(12) Uniform rules applied irrespective of the law they desig-
nate may avert the risk of distortions of competition
between Community litigants.

possibility of a manifestly closer connection to another
country.

(13)

The principle of the lex loci delicti commissi is the basic
solution for non-contractual obligations in virtually all
the Member States, but the practical application of the
principle where the component factors of the case are
spread over
situation
several countries varies. This
engenders uncertainty as to the law applicable.

(14) Uniform rules should enhance the foreseeability of court
decisions and ensure a reasonable balance between the
interests of the person claimed to be liable and the
person who has sustained damage. A connection with
the country where the direct damage occurred (lex loci
damni) strikes a fair balance between the interests of the
person claimed to be liable and the person sustaining
the damage, and also reflects the modern approach to
civil
liability and the development of systems of strict
liability.

(15)

(16)

The law applicable should be determined on the basis of
where the damage occurs, regardless of the country or
countries in which the indirect consequences could
occur. Accordingly,
injury or
damage to property, the country in which the damage
occurs should be the country where the injury was
sustained or the property was damaged respectively.

in cases of personal

The general rule in this Regulation should be the ‘lex loci
damni’ provided for in Article 4(1). Article 4(2) should
be seen as an exception to this general principle, creating
a special connection where the parties have their habi-
tual residence in the same country. Article 4(3) should
be understood as an ‘escape clause’ from Article 4(1) and
(2), where it is clear from all the circumstances of the
case that
is manifestly more closely
connected with another country.

the tort/delict

(17)

Specific rules should be laid down for special
torts/
delicts where the general rule does not allow a reason-
able balance to be struck between the interests at stake.

(19)

(20)

(21)

(22)

The special rule in Article 6 is not an exception to the
general rule in Article 4(1) but rather a clarification of it.
In matters of unfair competition, the conflict rule should
protect competitors, consumers and the general public
and ensure that the market economy functions properly.
The connection to the law of the country where compe-
titive relations or the collective interests of consumers
are, or are likely to be, affected generally satisfies these
objectives.

The non-contractual obligations arising out of restric-
tions of competition in Article 6(3) should cover infrin-
gements of both national and Community competition
law. The law applicable to such non-contractual obliga-
tions should be the law of the country on whose market
the restriction has, or is likely to have, effect, provided
that
is direct and substantial. Where the
damage is sustained in more than one country, the appli-
cation of the law of any of those countries should be
limited to the damage which occurred in that country.

the effect

Examples of cases covered by Article 6(3) include prohi-
bitions on agreements between undertakings, decisions
by associations of undertakings and concerted practices
trade between Member States and
which may affect
which have as their object or effect
the prevention,
restriction or distortion of competition within a Member
State or within the internal market, as well as prohibi-
tions on the abuse of a dominant position within a
Member State or within the internal market.

Regarding environmental damage, Article 174 of the
Treaty, which provides that there should be a high level
of protection based on the precautionary principle and
the principle that preventive action should be taken, the
principle of priority for corrective action at source and
the principle that the polluter pays, fully justifies the use
of the principle of discriminating in favour of the person
sustaining the damage. The question of when the person
seeking compensation can make the choice of the law
applicable should be determined in accordance with the
law of the Member State in which the court is seised.

(18)

The conflict rule in matters of product liability should
meet the objectives of fairly spreading the risks inherent
in a modern high-technology society, protecting consu-
mers' health, stimulating innovation, securing undis-
torted competition and facilitating trade. Creation of a
cascade system of connecting factors, together with a
foreseeability clause, is a balanced solution in regard to
these objectives. The first element
to be taken into
account 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. The other elements of the cascade are
triggered if
the product was not marketed in that
country, without prejudice to Article 4(2) and to the

(23)

Regarding infringements of intellectual property rights,
the universally acknowledged principle of the lex loci
protectionis should be preserved. For the purposes of this
Regulation, the term ‘intellectual property rights’ should
be interpreted as meaning,
instance, copyright,
related rights, the sui generis right for the protection of
databases and industrial property rights.

for

(24)

The exact concept of industrial action, such as strike
action or lock-out, varies from one Member State to
another and is governed by each Member State's internal
rules. Therefore, this Regulation assumes as a general

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(25)

(26)

(27)

(28)

(29)

(30)

principle that the law of the country where the industrial
action was
taken should apply, with the aim of
protecting the rights and obligations of workers and
employers.

The special rule on industrial action in Article 9 is
without prejudice to the conditions relating to the exer-
cise of such action in accordance with national law and
without prejudice to the legal status of trade unions or
of
as
provided for in the law of the Member States.

representative organisations of workers

the

Provision should be made for
rules where
damage is caused by an act other than a tort/delict, such
as unjust enrichment, negotiorum gestio and culpa in
contrahendo.

special

Culpa in contrahendo for the purposes of this Regulation
is an autonomous concept and should not necessarily be
interpreted within the meaning of national law. It should
include the violation of the duty of disclosure and the
breakdown of contractual negotiations. Article 12 covers
only non-contractual obligations presenting a direct link
with the dealings prior to the conclusion of a contract.
This means that if, while a contract is being negotiated,
a person suffers personal injury, Article 4 or other rele-
vant provisions of this Regulation should apply.

To respect the intentions of the parties and to enhance
legal certainty, the parties should be allowed to make an
express choice as to the law applicable to a non-contrac-
tual obligation. Protection should be given to weaker
parties by imposing certain conditions on the choice.

the Member States the possibility,

Considerations of public interest justify giving the courts
of
in exceptional
circumstances, of applying exceptions based on public
policy and overriding mandatory provisions.

In order to strike a reasonable balance between the
parties, account must be taken, in so far as appropriate,
of the rules of safety and conduct in operation in the
country in which the harmful act was committed, even
where the non-contractual obligation is governed by the
law of another country. The term ‘rules of safety and
conduct’ should be interpreted as referring to all regula-
tions having any relation to safety and conduct,
including, for example, road safety rules in the case of
an accident.

(32)

(33)

(34)

(35)

(36)

contribute to the proper functioning of
the internal
market insofar as they cannot be applied in conjunction
with the law designated by the rules of this Regulation.

Respect for international commitments entered into by
the Member States means that this Regulation should
not affect international conventions to which one or
more Member States are parties at the time this Regu-
lation is adopted. To make the rules more accessible, the
the relevant
Commission should publish the list of
conventions in the Official
the European
Union on the basis of
information supplied by the
Member States.

Journal of

The Commission will make a proposal to the European
Parliament and the Council concerning the procedures
and conditions according to which Member States would
be entitled to negotiate and conclude on their own
behalf agreements with third countries in individual and
exceptional
sectoral matters,
concerning
containing provisions on the law applicable to non-
contractual obligations.

cases,

Since the objective of this Regulation cannot be suffi-
ciently achieved by the Member States, and can there-
fore, by reason of the scale and effects of the Regulation,
be better achieved at Community level, the Community
may adopt measures, in accordance with the principle of
subsidiarity set out in Article 5 of the Treaty. In accord-
ance with the principle of proportionality set out in that
this Regulation does not go beyond what is
Article,
necessary to attain that objective.

The United Kingdom and Ireland,
in accordance with
Article 3 of the Protocol on the position of the United
Kingdom and Ireland annexed to the Treaty on European
Union and the Treaty establishing the European Com-
munity, have given notice of their wish to take part in
the adoption and application of this Regulation.

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark, annexed to the Treaty on
European Union and the Treaty establishing the Euro-
pean Community, Denmark does not take part in the
adoption of this Regulation, and is not bound by it or
subject to its application,

HAVE ADOPTED THIS REGULATION:

(31) A situation where conflict-of-law rules are dispersed
among several instruments and where there are differ-
ences between those rules should be avoided. This Regu-
lation, however, does not exclude the possibility of inclu-
sion of conflict-of-law rules relating to non-contractual
obligations in provisions of Community law with regard
to particular matters.

CHAPTER I

SCOPE

Article 1

Material scope

This Regulation should not prejudice the application of
other instruments laying down provisions designed to

This Regulation shall apply,

1.
in situations involving a
conflict of laws, to non-contractual obligations in civil and

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It

commercial matters.
to
revenue, customs or administrative matters or the liability of
the State for acts and omissions in the exercise of State
authority (‘acta iure imperii’).

shall not apply,

in particular,

The following shall be excluded from the scope of this

2.
Regulation:

(a) non-contractual obligations arising out of family relation-
ships and relationships deemed by the law applicable to
such relationships to have comparable effects including
maintenance obligations;

(b) non-contractual obligations arising out of matrimonial
property regimes, property regimes of relationships deemed
by the law applicable to such relationships to have compar-
able effects to marriage, and wills and succession;

(c) non-contractual obligations arising under bills of exchange,
cheques and promissory notes and other negotiable instru-
ments to the extent that the obligations under such other
negotiable instruments arise out of their negotiable char-
acter;

(d) non-contractual obligations arising out of

the law of
companies and other bodies corporate or unincorporated
regarding matters such as the creation, by registration or
otherwise, legal capacity, internal organisation or winding
up of companies and other bodies corporate or unincorpo-
rated, the personal liability of officers and members as such
the company or body and the
for the obligations of
personal
to its
members in the statutory audits of accounting documents;

liability of auditors to a company or

(e) non-contractual obligations arising out of

the relations
between the settlors, trustees and beneficiaries of a trust
created voluntarily;

(f) non-contractual obligations arising out of nuclear damage;

(g) non-contractual obligations arising out of violations of
privacy and rights relating to personality, including defama-
tion.

This Regulation shall not apply to evidence and proce-

3.
dure, without prejudice to Articles 21 and 22.

For the purposes of this Regulation, ‘Member State’ shall

4.
mean any Member State other than Denmark.

(a) an event giving rise to damage shall include events giving

rise to damage that are likely to occur; and

(b) damage shall include damage that is likely to occur.

Article 3

Universal application

Any law specified by this Regulation shall be applied whether
or not it is the law of a Member State.

CHAPTER II

TORTS/DELICTS

Article 4

General rule

1.
Unless otherwise provided for in this Regulation, the law
applicable to a non-contractual obligation arising out of a tort/
delict shall be the law of the country in which the damage
occurs irrespective of the country in which the event giving
rise to the damage occurred and irrespective of the country or
countries in which the indirect consequences of that event
occur.

2.
However, where the person claimed to be liable and the
person sustaining damage both have their habitual residence in
the same country at the time when the damage occurs, the law
of that country shall apply.

3. Where it is clear from all the circumstances of the case
that the tort/delict is manifestly more closely connected with a
country other than that indicated in paragraphs 1 or 2, the law
of that other country shall apply. A manifestly closer connec-
tion with another country might be based in particular on a
pre-existing relationship between the parties,
such as a
contract, that is closely connected with the tort/delict in ques-
tion.

Article 5

Product liability

Article 2

Non-contractual obligations

1.
For the purposes of this Regulation, damage shall cover
any consequence arising out of tort/delict, unjust enrichment,
negotiorum gestio or culpa in contrahendo.

This Regulation shall apply also to non-contractual obli-

2.
gations that are likely to arise.

3.

Any reference in this Regulation to:

1. Without prejudice to Article 4(2), the law applicable to a
non-contractual obligation arising out of damage caused by a
product shall be:

(a) 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; or,
failing that,

(b) the law of the country in which the product was acquired,
if the product was marketed in that country; or, failing
that,

(c) the law of the country in which the damage occurred, if

the product was marketed in that country.

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However, the law applicable shall be the law of the country in
which the person claimed to be liable is habitually resident if
he or she could not reasonably foresee the marketing of the
product, or a product of the same type, in the country the law
of which is applicable under (a), (b) or (c).

governed by the relevant Community instrument, be the law of
the country in which the act of infringement was committed.

The law applicable under this Article may not be dero-

3.
gated from by an agreement pursuant to Article 14.

2. Where it is clear from all the circumstances of the case
that the tort/delict is manifestly more closely connected with a
country other than that indicated in paragraph 1, the law of
that other country shall apply. A manifestly closer connection
with another country might be based in particular on a pre-
existing relationship between the parties, such as a contract,
that is closely connected with the tort/delict in question.

Article 6

Unfair competition and acts restricting free competition

The law applicable to a non-contractual obligation arising
1.
out of an act of unfair competition shall be the law of the
country where competitive relations or the collective interests
of consumers are, or are likely to be, affected.

2. Where an act of unfair competition affects exclusively the
interests of a specific competitor, Article 4 shall apply.

3.
The law applicable to a non-contractual obligation arising
out of a restriction of competition shall be the law of the
country on whose market the restriction has, or is likely to
have, effect.

The law applicable under this Article may not be dero-

4.
gated from by an agreement pursuant to Article 14.

Article 7

Environmental damage

The law applicable to a non-contractual obligation arising out
of environmental damage or damage sustained by persons or
property as a result of such damage shall be the law determined
pursuant to Article 4(1), unless the person seeking compensa-
tion for damage chooses to base his or her claim on the law of
the country in which the event giving rise to the damage
occurred.

Article 8

Infringement of intellectual property rights

Article 9

Industrial action

Without prejudice to Article 4(2), the law applicable to a non-
contractual obligation in respect of the liability of a person in
the capacity of a worker or an employer or the organisations
representing their professional interests for damages caused by
an industrial action, pending or carried out, shall be the law of
the country where the action is to be, or has been, taken.

CHAPTER III

UNJUST ENRICHMENT, NEGOTIORUM GESTIO AND CULPA IN
CONTRAHENDO

Article 10

Unjust enrichment

1.
If a non-contractual obligation arising out of unjust
enrichment, including payment of amounts wrongly received,
concerns a relationship existing between the parties, such as
one arising out of a contract or a tort/delict, that is closely
connected with that unjust enrichment, it shall be governed by
the law that governs that relationship.

2. Where the law applicable cannot be determined on the
basis of paragraph 1 and the parties have their habitual resi-
dence in the same country when the event giving rise to unjust
enrichment occurs, the law of that country shall apply.

3. Where the law applicable cannot be determined on the
basis of paragraphs 1 or 2, it shall be the law of the country in
which the unjust enrichment took place.

4. Where it is clear from all the circumstances of the case
that the non-contractual obligation arising out of unjust enrich-
ment is manifestly more closely connected with a country
other than that indicated in paragraphs 1, 2 and 3, the law of
that other country shall apply.

Article 11

Negotiorum gestio

1.
The law applicable to a non-contractual obligation arising
from an infringement of an intellectual property right shall be
the law of the country for which protection is claimed.

2.
In the case of a non-contractual obligation arising from
an infringement of a unitary Community intellectual property
right, the law applicable shall, for any question that is not

1.
If a non-contractual obligation arising out of an act
performed without due authority in connection with the affairs
of another person, concerns a relationship existing between the
parties, such as one arising out of a contract or a tort/delict,
that is closely connected with that non-contractual obligation,
it shall be governed by the law that governs that relationship.

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2. Where the law applicable cannot be determined on the
basis of paragraph 1, and the parties have their habitual resi-
dence in the same country when the event giving rise to the
damage occurs, the law of that country shall apply.

3. Where the law applicable cannot be determined on the
basis of paragraphs 1 or 2, it shall be the law of the country in
which the act was performed.

4. Where it is clear from all the circumstances of the case
that
the non-contractual obligation arising out of an act
performed without due authority in connection with the affairs
of another person is manifestly more closely connected with a
country other than that indicated in paragraphs 1, 2 and 3, the
law of that other country shall apply.

Article 12

Culpa in contrahendo

1.
The law applicable to a non-contractual obligation arising
out of dealings prior to the conclusion of a contract, regardless
of whether the contract was actually concluded or not, shall be
the law that applies to the contract or that would have been
applicable to it had it been entered into.

2. Where the law applicable cannot be determined on the
basis of paragraph 1, it shall be:

(a) the law of the country in which the damage occurs, irre-
spective of the country in which the event giving rise to
the damage occurred and irrespective of the country or
countries in which the indirect consequences of that event
occurred; or

(b) where the parties have their habitual residence in the same
country at the time when the event giving rise to the
damage occurs, the law of that country; or

(c) where it is clear from all the circumstances of the case that
the non-contractual obligation arising out of dealings prior
to the conclusion of a contract is manifestly more closely
connected with a country other than that
indicated in
points (a) and (b), the law of that other country.

Article 13

Applicability of Article 8

For the purposes of this Chapter, Article 8 shall apply to non-
contractual obligations arising from an infringement of an
intellectual property right.

CHAPTER IV

FREEDOM OF CHOICE

Article 14

Freedom of choice

The parties may agree to submit non-contractual obliga-

1.
tions to the law of their choice:

(a) by an agreement entered into after the event giving rise to

the damage occurred;

or

(b) where all the parties are pursuing a commercial activity,
also by an agreement freely negotiated before the event
giving rise to the damage occurred.

The choice shall be expressed or demonstrated with reasonable
certainty by the circumstances of the case and shall not preju-
dice the rights of third parties.

2. Where all the elements relevant to the situation at the
time when the event giving rise to the damage occurs, are
located in a country other than the country whose law has
been chosen, the choice of the parties shall not prejudice the
application of provisions of the law of that country which
cannot be derogated from by agreement.

3. Where all the elements relevant to the situation at the
time when the event giving rise to the damage occurs, are
located in one or more of the Member States, the parties'
choice of the law applicable other than that of a Member State
shall not prejudice the application of provisions of Community
law, where appropriate as implemented in the Member State of
the forum, which cannot be derogated from by agreement.

CHAPTER V

COMMON RULES

Article 15

Scope of the law applicable

The law applicable to non-contractual obligations under this
Regulation shall govern in particular:

(a) the basis and extent of liability, including the determination
of persons who may be held liable for acts performed by
them;

(b) the grounds for exemption from liability, any limitation of

liability and any division of liability;

(c) the existence, the nature and the assessment of damage or

the remedy claimed;

(d) within the limits of powers conferred on the court by its
procedural law, the measures which a court may take to
prevent or terminate injury or damage or to ensure the
provision of compensation;

(e) the question whether a right to claim damages or a remedy

may be transferred, including by inheritance;

(f) persons entitled to compensation for damage sustained

personally;

(g) liability for the acts of another person;

(h) the manner in which an obligation may be extinguished
and rules of prescription and limitation,
including rules
relating to the commencement, interruption and suspension
of a period of prescription or limitation.

Article 16

Overriding mandatory provisions

Nothing in this Regulation shall restrict the application of the
provisions of the law of the forum in a situation where they
are mandatory irrespective of the law otherwise applicable to
the non-contractual obligation.

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Article 17

Rules of safety and conduct

In assessing the conduct of the person claimed to be liable,
account shall be taken, as a matter of fact and in so far as is
appropriate, of the rules of safety and conduct which were in
force at the place and time of the event giving rise to the liabi-
lity.

Article 18

Direct action against the insurer of the person liable

The person having suffered damage may bring his or her claim
directly against the insurer of the person liable to provide
compensation if the law applicable to the non-contractual obli-
gation or the law applicable to the insurance contract so
provides.

Article 19

Subrogation

Where a person (‘the creditor’) has a non-contractual claim
upon another (‘the debtor’), and a third person has a duty to
satisfy the creditor, or has in fact satisfied the creditor in
discharge of that duty, the law which governs the third person's
duty to satisfy the creditor shall determine whether, and the
extent to which, the third person is entitled to exercise against
the debtor the rights which the creditor had against the debtor
under the law governing their relationship.

non-contractual obligations,
presumptions of law or determine the burden of proof.

it contains

rules which raise

Acts intended to have legal effect may be proved by any
2.
mode of proof recognised by the law of the forum or by any of
the laws referred to in Article 21 under which that act is
formally valid, provided that such mode of proof can be admi-
nistered by the forum.

CHAPTER VI

OTHER PROVISIONS

Article 23

Habitual residence

1.
For the purposes of this Regulation, the habitual residence
of companies and other bodies, corporate or unincorporated,
shall be the place of central administration.

Where the event giving rise to the damage occurs, or the
damage arises, in the course of operation of a branch, agency
or any other establishment, the place where the branch, agency
or any other establishment is located shall be treated as the
place of habitual residence.

2.
For the purposes of this Regulation, the habitual residence
of a natural person acting in the course of his or her business
activity shall be his or her principal place of business.

Article 24

Exclusion of renvoi

Article 20

Multiple liability

The application of the law of any country specified by this
Regulation means the application of the rules of law in force in
that country other than its rules of private international law.

If a creditor has a claim against several debtors who are liable
for the same claim, and one of the debtors has already satisfied
the claim in whole or in part, the question of that debtor's
right to demand compensation from the other debtors shall be
governed by the law applicable to that debtor's non-contractual
obligation towards the creditor.

Article 21

Formal validity

A unilateral act intended to have legal effect and relating to a
non-contractual obligation shall be formally valid if it satisfies
the formal requirements of the law governing the non-contrac-
tual obligation in question or the law of the country in which
the act is performed.

Article 22

Burden of proof

1.
this Regulation shall apply to the extent that,

The law governing a non-contractual obligation under
in matters of

Article 25

States with more than one legal system

1. Where a State comprises several territorial units, each of
which has its own rules of law in respect of non-contractual
obligations, each territorial unit shall be considered as a
country for the purposes of
identifying the law applicable
under this Regulation.

2.
A Member State within which different territorial units
have their own rules of law in respect of non-contractual obli-
gations shall not be required to apply this Regulation to
conflicts solely between the laws of such units.

Article 26

Public policy of the forum

The application of a provision of the law of any country speci-
fied by this Regulation may be refused only if such application
is manifestly incompatible with the public policy (‘ordre
public’)of the forum.

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Article 27

Relationship with other provisions of Community law

This Regulation shall not prejudice the application of provi-
sions of Community law which,
in relation to particular
matters, lay down conflict-of-law rules relating to non-contrac-
tual obligations.

Article 28

Relationship with existing international conventions

1.
This Regulation shall not prejudice the application of
international conventions to which one or more Member States
are parties at the time when this Regulation is adopted and
which lay down conflict-of-law rules relating to non-contrac-
tual obligations.

However,

this Regulation shall, as between Member
2.
States, take precedence over conventions concluded exclusively
between two or more of them insofar as such conventions
concern matters governed by this Regulation.

CHAPTER VII

FINAL PROVISIONS

Article 29

List of conventions

1.
By … (*), Member States shall notify the Commission of
the conventions referred to in Article 28(1). After that date,
Member States shall notify the Commission of all denunciations
of such conventions.

The Commission shall publish in the Official Journal of the

2.
European Union within six months of receipt:

(i) a list of the conventions referred to in paragraph 1;

(ii) the denunciations referred to in paragraph 1.

Article 30

Review clause

Not later than … (**), the Commission shall submit to the
European Parliament, the Council and the European Economic
and Social Committee a report on the application of this Regu-
lation. If necessary, the report shall be accompanied by propo-
sals to adapt this Regulation.
In particular, the report shall
consider non-contractual obligations arising out of traffic acci-
dents and out of violations of privacy and rights relating to
personality, including defamation.

Article 31

Application in time

This Regulation shall apply to events giving rise to damage
which occur after its entry into force.

Article 32

Date of application

This Regulation shall apply from … (***), except for Article 29,
which shall apply from … (*).

This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaty establishing the European Community.

Done at Brussels,

For the European Parliament

The President

…

For the Council

The President

…

(*) 12 months after the date of the adoption of this Regulation.

(**) Four years after the date of entry into force of this Regulation.
(***) 18 months after the date of adoption of this Regulation.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

The Council reached general agreement on the text of the draft Regulation on the law applicable to
non-contractual obligations on 1-2 June 2006. This led to the adoption of a common position on 25
September 2006 under the co-decision procedure.

The Council took its decision by qualified majority. The delegations of Estonia and Latvia voted against
due to their reservations on Article 9 on industrial action and its implications for the freedom to
provide services. (1)

When adopting its position, the Council took into account the opinion of the European Parliament
delivered at first reading on 6 July 2005. (2)

The purpose of this proposal 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 move-
ment of judgements.

II. ANALYSIS OF THE COMMON POSITION

1. General

The Council's common position follows largely the same line as the Commission's original proposal
as modified by the amended proposal submitted to the Council on 22 February 2006 (3).

The principal changes made to the text are as follows:

1. In comparison with the original Commission proposal the scope of the instrument has been clar-
ified and further elaborated. Civil and commercial matters do not cover liability of the State for
acts and omissions in the exercise of state authority (‘acta iure imperii’). An additional exclusion
has been added to Article 1(2) (g) to reflect the discussions and the final compromise on viola-
tions of privacy and rights relating to personality.

2. The Regulation follows the same logic as the original Commission proposal in the sense that the
Regulation sets out a general rule for the law applicable to a tort/delict. The general rule consists
of applying the law of the country where damage occurred. This has not changed as compared
to the original Commission proposal. Article 4(2) sets out an exception from the general prin-
ciple, creating a special connection where the parties have their habitual residence in the same
country. Article 4(3) should be understood as an 'escape clause' from Articles 4(1) and 4(2),
where it is clear from all the circumstances of the case that the tort/delict is manifestly more
closely connected with another country.

As a matter of principle, the general rule should be applicable to all non-contractual obligations
covered by the Regulation. Only in certain limited, duly justified circumstances should the
general rule be derogated from and special rules applied. In accordance with the conditions
specified in Article 14 the parties may agree to submit non-contractual obligations to the law of
their choice.

3. In comparison with the original Commission proposal, the scope of the special rules has been
further clarified in order to facilitate their practical application. The Regulation currently contains
special rules in matters of product liability, unfair competition, environmental damage, infringe-
ments of intellectual property and industrial action.

4. Negotiations over violations of privacy and rights relating to personality caused difficulties to
many delegations. The Council examined this issue on numerous occasions and carefully consid-
ered all options on the negotiating table, including the proposal by the European Parliament.

(1) See ref to I/A-item note 12219/2006 CODEC 838 JUSTCIV 181;
(2) See 10812/05 CODEC 590 JUSTCIV 132;
(3) See 6622/06 JUSTCIV 32 CODEC 171;

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Nevertheless, as a final compromise and in an attempt to reconcile the conflicting interests, the
Council decided to delete the special rule on violations of privacy and rights relating to person-
ality at this stage. As indicated above, such matters are currently excluded from the scope of the
Regulation by Article 1(2) g.

However, this has to be read together with Article 30. The review clause, proposed by the Euro-
pean Parliament and currently contained in Article 30, makes provision for a report to be
submitted by the Commission at the latest four years after the date of entry into force of the
Regulation. The report should consider in particular non-contractual obligations arising out of
violations of privacy and rights relating to personality, including defamation.

5. Differently from the original Commission proposal, the Regulation now also contains a rule on
industrial action in line with the proposal of the European Parliament. With the aim of balancing
the interests of workers and employers, this rule consists of applying the law of the country
where the industrial action was taken. However, this provision caused such difficulties to two
delegations that they voted against the common position.

6. The original proposal of the Commission contained one provision for non-contractual obliga-
tions arising out of acts other than torts/delicts. The Regulation now includes a specific chapter
with separate provisions on unjust enrichment, negotiorum gestio and culpa in contrahendo.

7. The Articles on mandatory provisions, relationship with other Community law provisions and

relationship with existing international conventions have further been simplified.

8. The Regulation now contains, as requested by the European Parliament, a review clause, which
obliges the Commission to submit to the European Parliament, the Council and the European
Economic and Social Committee a report on the application of the Regulation. In particular, the
report shall consider non-contractual obligations arising out of traffic accidents and out of viola-
tions of privacy and rights relating to personality, including defamation.

Other amendments are of a more formal nature and have been made to render the text easier to
read.

After revision by Legal/Linguistic Experts, the text and the recitals have been re-numbered. A
table in the Annex sets out the respective numbers as set out in the common position and as
they were indicated in the original proposal.

2. Parliament's amendments

The Council has accepted many of European Parliament's amendments. In some cases, however, the
discussions in the Council and the revision of the text by Legal/Linguistic Experts showed the need
for certain technical clarifications. In order to ensure correspondence to the provisions of the Regu-
lation, the recitals have been adapted and updated.

The changes made to Articles 1, 2, 4, 9, 10, 11, 12, 28 and 30 require the inclusion of additional
recitals.

Recitals 1-5 have been updated in order to take account of the latest developments at political level.
Accordingly, the reference to the 1998 Action Plan has been replaced by guidelines contained in
the Hague Programme adopted by the European Council in 2004.

a) Amendments accepted in their entirety

Amendments 12, 17, 21, 22, 35, 37, 39, 40, 45, 51, 52 and the oral amendments can be accepted
as presented by the European Parliament since they contribute either to the clarity and consistency
of the instrument or to questions of detail.

b) Amendments accepted in substance

Amendments 2, 15, 18, 19, 20, 23, 24, 28, 31, 34, 38, 45, 54 can be accepted in substance subject
to re-drafting.

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Amendment 2 is covered by current recitals (29) and (31).

The substance of amendment 15 is taken over by recital (24).

The changes proposed by amendment 18 are reflected in substance in Articles 2 and 1(1).

Amendments 19 and 20 are included in the text of Articles 1(2) b and 1(2) d. However, the drafting
has been simplified, in particular due to the inclusion of Article 2.

Amendment 23 is accepted in substance. However, the Council considers that in view of the
changes made to recital (9) and Article 1(1) this amendment is redundant.

The Council consider that the changes proposed by amendment 24 are covered in substance by the
changes made to Articles 16, 26 and 27, as well as recital (31).

The Council can accept the principle of amendments 28 and 34, which would change the structure
and the title of the sections. The Council considers that this is reflected in the current structure of
the Regulation, which is divided into, Chapter I — Scope, Chapter II — Torts/delicts, Chapter III —
Unjust enrichment, negotiorum gestio and culpa in contrahendo, Chapter IV — Freedom of choice
and Chapter V — Common provisions, and would serve the same purpose.

Amendment 31 introduces a new provision on industrial action. This is in line with the negotiations
in the Council. However, the substance of the rule has been further elaborated in Article 9 and by
recitals (24) and (25).

The substance of amendment 38 is taken over by Article 14. However, the Council has tried to
simplify the wording and render it more flexible.

The substance of amendment 46 is taken over by Article 18.

c) Amendments accepted in part

Amendment 3, 14, 25, 26, 36, 44, 53 and 54 can be accepted in part.

Amendment 3 is only partly acceptable since the recital relates to Article 4 and amendment 26 on
Article 4 is not fully accepted. The first sentence of the amendment is reflected in substance in the
current text of recitals (13) and (14). The last part of the amendment is reflected in the current text
of recital (28).

Amendment 14 proposes, firstly, to add the words 'in so far as appropriate' so as to add emphasis
to the discretion of the court and, secondly, to exclude this possibility in matters of violations of
privacy and unfair competition. While the Council can accept the first part of the amendment,
matters of violations of privacy have been excluded from the scope, and the Council sees no justifi-
cation for making an exception for cases of unfair competition.

Amendment 25 is acceptable in principle. However, the conditions for expressing ex ante choice
should in view of the Council be laid down in clear and unequivocal terms.

Amendment 26 relates to the general rule contained in Article 4.

With regard to Article 4(1) the Council can accept the changes proposed.

On the other hand, the Council cannot accept the changes to paragraph 2. Paragraph 2 brings in a
specific rule on traffic accidents which would subject the non-contractual obligation and the
amount of damages to two different laws. As the Commission has stated in its revised proposal (1)
this solution diverges from the law in force in the Member States and cannot therefore be adopted
without prior in-depth analysis. It is accordingly proposed that the question be considered in detail
in the report foreseen by Article 30.

(1) See 6622/06 JUSTCIV 32 CODEC 171;

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As to Article 4(3), it should be seen as an escape clause from Articles 4(1) and (2), where it is clear
from all the circumstances of the case that the tort/delict is manifestly more closely connected with
another country. In the light of this, the Council sees no need for listing specific factors.

Amendment 36 relates to the new Article 10. While in principle the changes proposed are accep-
table, the Council considers that the law of the country in which enrichment took place is a more
appropriate connecting factor in case the applicable law cannot be determined on the basis of
Article 10(1) or (2).

The first part of amendment 44 is acceptable to the Council. However, in the course of the negotia-
tions it was agreed to delete paragraph (2) that would create fundamental problems to certain
Member States and therefore the Council cannot accept this part of the amendment.

Amendment 53 is accepted in part. The Council considers that it would be more appropriate to
have the Regulation take automatically precedence over conventions concluded exclusively between
two or more of the Member States insofar as such conventions concern matters governed by the
Regulation. The amendment proposed to Article 28(3) is not accepted since the Hague Convention
provides for a specific regime on traffic accidents and many of the Member States that are
contracting parties to the Convention expressed their wish to preserve this regime. In this context,
regard should be had to the review clause in Article 30, which makes a specific reference to traffic
accidents.

The Council welcomes the review clause as proposed by amendment 54. However, the Council
suggests that a more generic review clause is more appropriate to ensure effective evaluation in the
framework of the existing competencies (see Article 30).

d) Amendments rejected

Amendments 1, 4, 5, 6, 8, 10, 11, 13, 16, 27, 29, 32, 33, 41, 42, 43, 47, 49, 50, 56 and 57 are
rejected.

Amendment 1 refers to the Rome I Regulation. However, until the Regulation is adopted, it is more
appropriate to refer to the existing 1980 Rome I Convention on the law applicable to contractual
obligations.

Amendment 4 relates to the changes proposed to the general rule (amendment 26). Since amend-
ment 26 was rejected in part, the corresponding changes to the recital would have to be rejected.

In view of the changes made to the scope of the Regulation, the Council sees no need for amend-
ment 5.

Amendment 6, 8, 11 and 13 would adapt the recitals to reflect the deletion of several special rules
from the Regulation as proposed by amendments 27 (product liability), 29 (unfair competition and
acts restricting free competition) and 33 (violations of the environment). The Council cannot accept
the deletion of these special rules, therefore the corresponding amendments to the recitals would
have to be rejected as well. However, the Council has made an effort to clearly define the scope of
these special rules in order to facilitate their practical application.

Amendments 10 and 56 would have to be rejected since non-contractual obligations arising out of
violations of privacy and rights relating to personality, including defamation, have been excluded
from the scope of the Regulation

Amendment 16 is not acceptable to the Council, since the Council rejects amendment 42 to which
this amendment corresponds.

Amendment 27 would abolish the special rule on product liability. The Council considers that the
application of the general rules in cases of product liability would not allow foreseeing the applic-
able law with reasonable certainty. Creation of a cascade system of connecting factors, together
with a foreseeability clause, appears to be a balanced solution in view of this objective.

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Amendment 29 proposes to delete the specific rule on unfair competition. The Council cannot
accept that. The rule in Article 6 is not an exception to the general rule contained in Article 4(1)
but rather clarifies it in order to determine where the damage arises. In matters of unfair competi-
tion, the rule should protect competitors, consumers and the general public and ensure that the
market economy functions properly. The connection to the place where the competitive relations
or the collective interests of consumers are affected, or in case of restrictions of competition, the
country where the restriction has or is likely to have effect, generally satisfy these objectives. The
non-contractual obligations arising out of restrictions of competition in Article 6(3) should cover
infringements of both Community and national competition law.

Amendment 32 is related to amendment 26 which is rejected by the Council to the extent it relates
to traffic accidents. For the same reasons as indicated above, this amendment is rejected.

The Council cannot accept the deletion of the special rule for environmental damage as proposed
by amendment 33. The proposed rule reflects the 'polluter pays' principle promoted by the Com-
munity and already applied in several Member States.

The Council cannot accept amendment 41 since it would appear to be in contradiction with the
changes proposed by amendment 40 which the Council accepts.

Amendments 42 and 43 address the question of the application of foreign law by the court. The
Council rejects these amendments since this question should be tackled in a different context.

Since amendment 22 was accepted, amendment 47 is redundant in the view of the Council.

The Council considers that the clarification contained in Article 23(2) is sufficient for the purposes
of natural persons acting in the course of their business activities. Thus, amendment 49 is rejected.

Amendment 50 aims at clarifying the concept of public policy. It would be difficult for the time-
being to lay down common criteria and reference instruments for the purposes of defining public
policy. For these reasons amendment 50 is rejected.

Amendment 57 relates to Article 6 of the original Commission proposal. The Council examined
this issue on numerous occasions and carefully considered all options on the negotiating table,
including the solution proposed by the European Parliament. However, as a final compromise and
in an attempt to reconcile the conflicting interests, the Council proposes to delete the special rule
on violations of privacy and rights relating to personality at this stage. Accordingly amendment 57
has to be rejected. Instead the Regulation provides in Article 1(2) (g) for an exclusion from the
scope.

However, this should be read together with Article 30. The review clause contained in Article 30
makes provision for a report to be submitted by the Commission at the latest four years after the
date of entry into force of the Regulation. The report shall consider in particular non-contractual
obligations arising out of violations of privacy and rights relating to personality, including defama-
tion.

III. CONCLUSION

The Council considers that the text of the common position on Regulation on the law applicable to
non-contractual obligations creates a balanced system of conflict-of-law rules in the field of non-
contractual obligations and achieves the desired uniformity of rules of applicable law. Furthermore, the
common position is in broad terms in line with the original proposal of the Commission and the
opinion of the European Parliament.

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ANNEX

TABLE OF CORRESPONDENCE

The original Commission proposal

The Council's common position

Recital (1)

new

Recital (2)

Recital (3)

new

new

Recital (4)

Recital (5)

new

new

new

new

Recital (6)

Recital (7)

Recital (8)

new

new

Recital (9)

Recital (10)

Recital (11)

new

new

Recital (12)

Recital (13)

Recital (14)

new

new

Recital (15)

new

Recital (16)

Recital (17)

Recital (18)

Recital (19)

Recital (1)

Recital (2)

deleted

Recital (3)

Recital (4)

Recital (5)

Recital (6)

Recital (7)

Recital (8)

Recital (9)

Recital (10)

Recital (11)

Recital (12)

Recital (13)

Recital (14)

Recital (15)

Recital (16)

Recital (17)

Recital (18)

Recital (19)

Recital (20)

Recital (21)

deleted

Recital (22)

Recital (23)

Recital (24)

Recital (25)

Recital (26)

Recital (27)

Recital (28)

Recital (29)

Recital (30)

Recital (31)

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The original Commission proposal

The Council's common position

Recital (20)

new

Recital (21)

Recital (22)

Recital (23)

Article 1

new

Article 2

Article 3

Article 4

Article 5

Article 6

Article 7

Article 8

new

Article 9(1)

Article 9(2)

Article 9(3)

Article 9(4)

Article 9(5)

Article 9(6)

Article 10

Article 11

Article 12

Article 13

Article 14

Article 15(1)

Article 15(2)

Article 16

Article 17

Article 18

Article 19

Article 20

Recital (32)

Recital (33)

Recital (34)

Recital (35)

Recital (36)

Article 1

Article 2

Article 3

Article 4

Article 5

Article 6

deleted

Article 7

Article 8

Article 9

Article 12

Article 10(2), 11(2), 12(2)b

Article 10

Article 11

Article 10(4), 11(4), 12(2)c

Article 13

Article 14

Article 15

Article 16

Article 17

Article 18

Article 19

Article 20

Article 21

Article 22

deleted

Article 23

Article 24

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The original Commission proposal

The Council's common position

Article 21

Article 22

Article 23

Article 24

Article 25

Article 26

new

Article 27 second section

Article 27 first and third sections

Article 25

Article 26

Article 27

deleted

Article 28

Article 29

Article 30

Article 31

Article 32