Commission Opinion in accordance with point (c) of the third subparagraph of Article 251(2) of the EC Treaty on the European Parliament’s amendments to the Council Common Position on the proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations ("ROME II") amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2007-03-14
Institutions: European Commission
Subjects: area of freedom, security and justice, civil law, commercial law, jurisdiction, law of obligations, mutual recognition principle

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 14.3.2007 
COM(2007) 126 final 

2003/0168 (COD) 

COMMISSION OPINION 

in accordance with point (c) of the third subparagraph of Article 251(2) of the EC 
Treaty 
on the European Parliament’s amendments  
to the Council common position on  
the proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND THE COUNCIL 
ON THE LAW APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS  
("ROME II") 

AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the 
EC Treaty 

EN 

   EN 

 
 
 
  
 
2003/0168 (COD) 

COMMISSION OPINION 

in accordance with point (c) of the third subparagraph of Article 251(2) of the EC 
Treaty 
on the European Parliament’s amendments  
to the Council common position on  
the proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND THE COUNCIL 
ON THE LAW APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS  
("ROME II") 

1. 

INTRODUCTION 

Point  (c)  of  the  third  subparagraph  of  Article  251(2)  of  the  EC  Treaty  provides  that  the 
Commission is to issue an opinion on the amendments proposed by the European Parliament 
at second reading. The Commission hereby issues its opinion on the 19 amendments proposed 
by Parliament. 

2. 

BACKGROUND 

The  proposal1  was  adopted  by  the  Commission  on  22  July  2003  and  transmitted  to  the 
European  Parliament  and  the  Council  the  same  day.  The  European  Economic  and  Social 
Committee adopted its opinion on the Commission proposal on 2 June 20042. The European 
Parliament  adopted  54  amendments  at  first reading  in  plenary  session  on  6  July  20053.  The 
Commission  adopted  its  amended  proposal  on  21  February  20064.  The  Council  adopted  its 
common position on 25 September 20065. The Commission adopted its communication on the 
Council  common  position  on  27  September  20066.  The  European  Parliament  adopted  19 
amendments at second reading in plenary session on 18 January 2007. 

3. 

AIM OF THE PROPOSAL 

International jurisdiction, recognition and enforcement in a Member State of judgments given 
in  another  Member  State  are  dealt  with  by  Regulation  (EC)  No  44/2001  of  22  December 
2000,  which  applies  to  both  contractual  and  non-contractual  obligations  in  civil  and 
commercial matters. As regards the applicable law, the provisions governing contracts applied 
by  the  Member  States  were  harmonised  by  the  Rome  Convention  of  1980  on  the  law 
applicable to contractual obligations, which the Commission is proposing to replace by the 

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COM(2003)427 final. 2003/0168 (COD). 
OJ C 241, 28.9.2004, p. 1. 
A6-0211/2005. 
COM(2006)83 final. 
Common Position (EC) No 22/2006 (OJ L 289 E, 28.11.2006, p. 68). 
COM(2006) 566final. 

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"Rome  I"  Regulation7,  currently  being  negotiated  in  the  Council  and  Parliament.  However, 
there  are  no  general  harmonised  rules  within  the  Community  for  determining  the  law 
applicable  to  non-contractual  obligations.  The  Commission  proposal  is  intended  to  fill  this 
gap.  

Thus, the Commission proposal aims at harmonising the legal provisions applicable to non-
contractual  obligations  of  a  civil  and  commercial  nature  (traffic  accidents,  product  liability, 
unfair  competition  etc.)  and  at  adopting  a  common  rule  across  the  European  Union  for 
determining the law applicable to such obligations.  

The aim of the harmonisation of these provisions is twofold: to offer a higher level of legal 
certainty to individuals and economic operators and to avoid forum shopping, which leads to 
potentially different substantive results for the parties depending on which court is seized of 
the matter.  

4. 

THE COMMISSION'S OPINION ON THE EUROPEAN PARLIAMENT'S AMENDMENTS 

4.1. 

Amendments accepted in their entirety by the Commission 

•  The Commission accepts amendment 1. This is a technical drafting change to reflect that 
the fact that the Rome Convention of 1980 on the law applicable to contractual obligations 
will  be  replaced  by  the  future  "Rome  I"  Regulation,  currently  being  negotiated  in  the 
Council and Parliament. 

•  The  Commission  accepts  amendment  23.  In  its  original  proposal  the  Commission 
preferred a form of words that made it clearer that non-compensatory damages are not per 
se  contrary  to  public  policy  if  the  amount  is  reasonable.  But,  since  the  rule  proposed  by 
Parliament  leaves  the  courts  with  considerable  room  for  discretion,  the  Commission  can 
now accept the form of words proposed by Parliament. 

•  The Commission accepts amendment 30, which clarifies the scope of the special rule on 
acts of unfair competition by adding a reference to Articles 81 and 82 of the Treaty. But it 
fails to grasp Parliament’s intentions in deciding to keep the recital relating to the special 
rule on acts of unfair competition while wishing to delete the rule itself (amendment 17).  

4.2 

Amendments accepted by the Commission in their entirety subject to rewording 
or in part only 

•  Regarding  amendment  3,  the  Commission  has  nothing  against  a  recital  recalling  that 
Rome  II  also  covers  obligations  based  on  strict  liability  or  against  the  determination  of 
categories of person who can be held liable for the acts they commit. But it considers that 
these are two distinct questions which should be covered by separate recitals so as to slot 
into  the  logical  sequence  of  the  Regulation.  It  is  proposed  that  recital  11  be  worded  as 
follows:  “The  concept  of  non-contractual  obligation  varies  from  one  Member  State  to 
another. For the purposes of this Regulation, it should therefore be seen as an autonomous 
concept. In particular, it should include obligations based on strict liability." A new recital 
28a could then be inserted as follows: "Certainty as to the law requires that the Regulation 

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COM(2005)650 final. 

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determine  with  precision  the  scope  of  the  applicable  law  governing  matters  such  as  the 
determination of categories of person who can be held liable for the acts they commit." 

•  Amendment  28  would  make  two  technical  drafting  changes.  The  Commission  shares 
Parliament’s concern for terminological consistency between language versions. Recital 19 
would  introduce  "unfair  competition"  and  "restrictions  of  competition",  referred  to 
expressly  in  relation  to  Article  6  of  the  Council  common  position  (English  and  French 
versions). In the French version of the common position, recital 19 also expressly refers to 
the two concepts, unlike the English version. The Commission accordingly proposes that 
the English version of recital 19 be aligned on the French version. The proposal that the 
word “market” be used at the end of the recital does not adequately reflect the dual aspect 
of Article 6, which seeks to protect both relations between competitors and the collective 
interests  of  consumers8.  The  Commission  would  accordingly  propose  the  following  form 
of words: "The connection to the law of the country where relations between competitors 
or the collective interests of consumers are, or are likely to be, affected generally satisfies 
these objectives." 

•  While the Commission is basically in favour of clarifying the scope of the specific rule on 
environmental  damage,  it  regrets  that  the  definition  adopted  in  amendment  32  is  so 
restrictive,  confining  the  scope  so  that  the  rule  would  not  apply,  for  instance,  to  air 
pollution.  The  Commission  can  accepter  a  definition  only  if  it  covers  all  non-contractual 
obligations in respect of environmental damage, irrespective of the nature of the damage. 

•  By  virtue  of  amendment  26,  the  report  on  the  application  of  the  Regulation  should 
consider  two  questions  in  particular:  the  application  of  foreign  law  by  the  courts  and 
tribunals of the Member States (second and third paragraphs of the amendment), and the 
law  applicable  to  traffic  accidents.  While  the  Commission  can  basically  accept  the  part 
concerning the application of foreign law, as in the amended proposal, it considers that the 
problem of damages, mentioned at the end of the second paragraph of the article, extends 
beyond that question. This is a complex point of substantive civil law, and Rome II is not 
the  proper  place  for  addressing  it.  As  to  the  part  concerning  traffic  accidents,  the 
Commission’s  working  method  in  preparing  its  report  would  be  dictated  to  it  in  great 
detail. Since the Commission has its own detailed rules governing its working method, it 
prefers  to  stand  by  the  form  of  words  used  in  the  amended  proposal:  “The  report  shall 
consider  whether  Community  legislation  specifically  dealing  with  the  law  applicable  to 
traffic accidents ought to be proposed.” 

4.3 

Amendments not accepted by the Commission 

•  The Commission does not accept amendment 4, which provides in very general terms that 
the court must have a margin of discretion in applying the Regulation. While it is true that 
the  court  has  a  margin  of  discretion  to  determine  the  applicable  law  under  the  specific 
provisions of Articles 4, 5, 10, 11 and 12, the same does not apply to the other rules. The 
effect  of  the  proposed  wording  would  therefore  be  to  lower  the  level  of  legal  certainty 
aimed at by the Regulation. The Commission accordingly considers that recitals 16 and 18, 
which refer expressly to the specific rules, will suffice.  

8 

Directive 98/27/EC of 19 May 1998 on injunctions for the protection of consumers' interests uses the 
same expression "collective interests of consumers". 

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•  It  does  not  accept  amendments  9,  15  and  19,  which  introduce  a  new  specific  rule 
governing  invasions  of  privacy  and  rights  relating  to  the  individual.  The  Commission 
already  rejected  this  rule  at  first  reading.  Given  the  political  impasse  in  the  Council,  the 
Commission  would  now  prefer  to  exclude  this  tricky  question  from  the  scope  of  the 
Regulation,  as  in  its  amended  proposal,  especially  since  there  is  very  little  international 
litigation in this area. 

•  The  Commission  cannot  accept  amendment  10,  which  makes  provision  for  cases  where 
the  parties  have  not  made  an  express  choice  of  law  and  the  court  is  empowered  to  have 
regard  to  other  factors  to  infer  a  choice.  The  proposed  form  of  words  is  not  compatible 
with the legal certainty objective, which requires certainty as to the existence of a choice 
by the parties.  

•  The  Commission  does  not  accept  amendments  11  and  22,  which  would  introduce  the 
restitutio in integrum principle in quantifying damages for personal injury victims. While it 
agrees that this is a very interesting idea for improving the situation of road traffic victims, 
it considers that this constitutes harmonisation of the Member States’ substantive civil law 
which is out of place in an instrument harmonising the rules of private international law. 

•  Amendment 12 would insert a new recital allowing a litigant who so wishes to raise the 
issue  of  the  applicable  law.  The  Commission  already  explained  in  its  amended  proposal 
that,  while  it  supported  the  idea  of  easing  the  task  of  a  court  faced  with  international 
litigation,  this  was  not  something  that  could  be  expected  of  all  the  parties,  in  particular 
those  who  are  not  legally  represented.  Since  it  cannot  accept  a  rule  such  as  this,  the 
Commission cannot accept either a mere recital, especially as this is a horizontal issue that 
should be addressed in a broader context. But the Commission is willing to look into the 
question of the application of foreign law in the courts of the Member States in the report 
on the application of the Regulation, as proposed in the amended proposal. 

•  For  the  same  reasons  the  Commission  rejects  amendment  13,  whereby  the  court  should 
determine the content of the applicable foreign law of its own motion, although it could ask 
the parties to assist it. It believes that in the current situation most Member States would be 
unable to apply such a rule as the requisite structures are not in place. But it agrees that this 
is  an  avenue  well  worth  exploring  and  that  special  attention  should  be  paid  to  it  in  the 
implementation report.  

•  Since  Parliament  has  rejected  the  amendment  that  would  insert  a  new  Article  15a,  the 
Commission cannot support amendment 16, which refers expressly to an Article 15a that 
is no longer in the body of the Regulation.  

•  The  Commission  cannot  accept  amendment  17,  which  would  abolish  the  specific  rule 
relating  to  anti-competitive  practices.  As  the  amended  proposal  already  explained, 
preserving this specific rule boosts certainty and foreseeability in the law since it anchors 
the  place  where  the  loss  was  sustained.  Moreover,  the  Commission  fails  to  grasp  the 
intentions of Parliament, which, despite this deletion, would preserve and even improve the 
recital (recital 21) relating to the specific rule. If Parliament actually wished to preserve the 
specific  rule,  the  Commission  would  accept  the  rule  as  proposed  in  amendment  31, 
rejected by Parliament. 

•  The Commission cannot accept amendment 24, which reinstates a rule on the relationship 
between Rome II and other Community instruments containing rules having an impact on 

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the  applicable  law,  in  particular  the  internal  market  instruments.  In  view  of  the  recent 
developments in the European Parliament and the Council in the context of negotiations of 
other  proposals,  such  a  specifically  tailored  provision  in  this  instrument  no  longer  seems 
necessary. 

5. 

CONCLUSION 

Under  Article  250(2)  of  the  EC  Treaty,  the  Commission  amends  its  proposal  in  accordance 
with the above. 

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