Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)
Date: 2007-07-11
Institutions: Council of the European Union, European Parliament
Subjects: EU law, commercial law, law of obligations, mutual recognition principle, restriction on competition

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REGULATION (EC) No 864/2007 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 July 2007

on the law applicable to non-contractual obligations (Rome II)

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

(5)

Having regard to the Treaty establishing the European Commu-
nity, 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 in the light of the joint text approved by the Con-
ciliation Committee on 25 June 2007 (2),

Whereas:

(1)

(2)

(3)

(4)

The Community has set itself the objective of maintain-
ing and developing an area of freedom, security and jus-
tice. For the progressive establishment of such an area, the
Community is to adopt measures relating to judicial coop-
eration in civil matters with a cross-border impact to the
extent necessary for the proper functioning of the inter-
nal 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 con-
flict of laws and of jurisdiction.

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

On 30 November 2000, the Council adopted a joint Com-
mission and Council programme of measures for imple-
mentation of the principle of mutual recognition of
decisions in civil and commercial matters (3). The pro-
gramme identifies measures relating to the harmonisation
of conflict-of-law rules as those facilitating the mutual rec-
ognition of judgments.

(6)

(7)

(8)

(9)

(10)

(11)

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

The proper functioning of the internal market creates a
need, in order to improve the predictability of the out-
come 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 substantive scope and the provisions of this Regula-
tion 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) (Brussels I) and the instruments
dealing with the law applicable to contractual obligations.

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 liabil-
ity for acts of public authorities, including liability of pub-
licly appointed office-holders. Therefore, these matters
should be excluded from the scope of this Regulation.

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

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. The conflict-of-
law rules set out in this Regulation should also cover non-
contractual obligations arising out of strict liability.

(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
(OJ C 289 E, 28.11.2006, p. 68) and Position of the European Parlia-
ment of 18 January 2007 (not yet published in the Official Journal).
European Parliament Legislative Resolution of 10 July 2007 and
Council Decision of 28 June 2007.

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

(12)

The law applicable should also govern the question of the
capacity to incur liability in tort/delict.

(4) OJ C 53, 3.3.2005, p. 1.
(5) OJ L 12, 16.1.2001, p. 1. Regulation as last amended by Regulation

(EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).

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

(20)

(14)

The requirement of legal certainty and the need to do jus-
tice in individual cases are essential elements of an area of
justice. This Regulation provides for the connecting fac-
tors which are the most appropriate to achieve these
objectives. Therefore, this Regulation provides for a gen-
eral rule but also for specific rules and, in certain provi-
sions, for an ‘escape clause’ which allows a departure from
these rules where it is clear from all the circumstances of
the case that the tort/delict is manifestly more closely con-
nected with another country. This set of rules thus creates
a flexible framework of conflict-of-law rules. Equally, it
enables the court seised to treat individual cases in an
appropriate manner.

(15)

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

(16) 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 per-
son 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 dam-
age, and also reflects the modern approach to civil liabil-
ity and the development of systems of strict liability.

(17)

(18)

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, in cases of personal injury or damage to
property, the country in which the damage occurs should
be the country where the injury was sustained or the prop-
erty was damaged respectively.

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 habitual
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
the tort/delict is manifestly more closely connected with
another country.

(19)

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

The conflict-of-law rule in matters of product liability
should meet the objectives of fairly spreading the risks
inherent in a modern high-technology society, protecting
consumers’ health, stimulating innovation, securing undis-
torted competition and facilitating trade. Creation of a cas-
together with a
cade system of connecting factors,
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 possibility of a mani-
festly closer connection to another country.

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-of-law 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
competitive relations or the collective interests of consum-
ers are, or are likely to be, affected generally satisfies these
objectives.

The non-contractual obligations arising out of restrictions
of competition in Article 6(3) should cover infringements
of both national and Community competition law. The
law applicable to such non-contractual obligations should
be the law of the country where the market is, or is likely
to be, affected. In cases where the market is, or is likely to
be, affected in more than one country, the claimant should
be able in certain circumstances to choose to base his or
her claim on the law of the court seised.

For the purposes of this Regulation, the concept of restric-
tion of competition should cover prohibitions on agree-
ments between undertakings, decisions by associations of
undertakings and concerted practices 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 prohibitions on the abuse of a domi-
nant position within a Member State or within the inter-
nal market, where such agreements, decisions, concerted
practices or abuses are prohibited by Articles 81 and 82
of the Treaty or by the law of a Member State.

(21)

(22)

(23)

(24)

‘Environmental damage’ should be understood as mean-
ing adverse change in a natural resource, such as water,
land or 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.

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(25)

(26)

(27)

(28)

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 prin-
ciple 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 sus-
taining the damage. The question of when the person seek-
ing 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.

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

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. There-
fore, this Regulation assumes as a general 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 with-
out prejudice to the conditions relating to the exercise of
such action in accordance with national law and without
prejudice to the legal status of trade unions or of the rep-
resentative organisations of workers as provided for in the
law of the Member States.

(29)

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

(30)

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 relevant
provisions of this Regulation should apply.

(31)

To respect the principle of party autonomy and to enhance
legal certainty, the parties should be allowed to make a
choice as to the law applicable to a non-contractual obli-
gation. This choice should be expressed or demonstrated
with reasonable certainty by the circumstances of the case.

Where establishing the existence of the agreement, the
court has to respect the intentions of the parties. Protec-
tion should be given to weaker parties by imposing cer-
tain conditions on the choice.

(32)

Considerations of public interest justify giving the courts
of the Member States the possibility, in exceptional cir-
cumstances, of applying exceptions based on public policy
and overriding mandatory provisions. In particular, the
application of a provision of the law designated by this
Regulation which would have the effect of causing non-
compensatory exemplary or punitive damages of an exces-
sive nature to be awarded may, depending on the
circumstances of the case and the legal order of the Mem-
ber State of the court seised, be regarded as being con-
trary to the public policy (ordre public) of the forum.

(33) According to the current national rules on compensation
awarded to victims of road traffic accidents, when quanti-
fying damages for personal injury in cases in which the
accident takes place in a State other than that of the
habitual residence of the victim, the court seised should
take into account all the relevant actual circumstances of
the specific victim, including in particular the actual losses
and costs of after-care and medical attention.

(34)

In order to strike a reasonable balance between the par-
ties, account must be taken, in so far as appropriate, of
the rules of safety and conduct in operation in the coun-
try 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 regulations hav-
including, for
ing any relation to safety and conduct,
example, road safety rules in the case of an accident.

(35) 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
inclusion of conflict-of-law rules
relating to non-
contractual obligations in provisions of Community law
with regard to particular matters.

This Regulation should not prejudice the application of
other instruments laying down provisions designed to
contribute to the proper functioning of the internal mar-
ket in so far as they cannot be applied in conjunction with
the law designated by the rules of this Regulation. The
application of provisions of the applicable law designated
by the rules of this Regulation should not restrict the free
movement of goods and services as regulated by Commu-
nity instruments, such as Directive 2000/31/EC of the
European Parliament and of the Council of 8 June 2000
on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market
(Directive on electronic commerce) (1).

(1) OJ L 178, 17.7.2000, p. 1.

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(36)

(37)

(38)

(39)

(40)

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 Regulation is
adopted. To make the rules more accessible, the Commis-
sion should publish the list of the relevant conventions in
the Official Journal of the European Union on the basis of
information supplied by the Member States.

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 excep-
tional cases, concerning sectoral matters, containing pro-
visions on the
to non-contractual
obligations.

law applicable

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

In accordance with Article 3 of the Protocol on the posi-
tion of the United Kingdom and Ireland annexed to the
Treaty on European Union and to the Treaty establishing
the European Community, the United Kingdom and Ire-
land are taking 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 Euro-
pean Union and to the Treaty establishing the European
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:

CHAPTER I

SCOPE

Article 1

Scope

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 mainte-
nance obligations;

(b) non-contractual obligations arising out of matrimonial prop-
erty regimes, property regimes of relationships deemed by
the law applicable to such relationships to have comparable
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 character;

(d) non-contractual obligations arising out of the law of com-
panies and other bodies corporate or unincorporated regard-
ing matters such as the creation, by registration or otherwise,
legal capacity, internal organisation or winding-up of com-
panies and other bodies corporate or unincorporated, the
personal liability of officers and members as such for the
obligations of the company or body and the personal liabil-
ity of auditors to a company or to its members in the statu-
tory audits of accounting documents;

(e) non-contractual obligations arising out of the relations
between the settlors, trustees and beneficiaries of a trust cre-
ated voluntarily;

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

(g) non-contractual obligations arising out of violations of pri-
vacy and rights relating to personality, including defamation.

This Regulation shall not apply to evidence and procedure,

3.
without prejudice to Articles 21 and 22.

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

4.
mean any Member State other than Denmark.

Article 2

Non-contractual obligations

1.
This Regulation shall apply, in situations involving a con-
flict of laws, to non-contractual obligations in civil and commer-
cial matters. It shall not apply, in particular, to revenue, customs
or administrative matters or to the liability of the State for acts
and omissions in the exercise of State authority (acta iure imperii).

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

This Regulation shall apply also to non-contractual obliga-

2.
tions that are likely to arise.

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3.

Any reference in this Regulation to:

(c)

the law of the country in which the damage occurred, if the
product was marketed in that country.

(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

Unless otherwise provided for in this Regulation, the law
1.
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 coun-
tries 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 coun-
try other than that indicated in paragraphs 1 or 2, 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 5

Product liability

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,

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 prod-
uct, or a product of the same type, in the country the law of
which is applicable under (a), (b) or (c).

2. Where it is clear from all the circumstances of the case that
the tort/delict is manifestly more closely connected with a coun-
try 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 relation-
ship between the parties, such as a contract, that is closely con-
nected 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 coun-
try where competitive relations or the collective interests of con-
sumers 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.

(a) The law applicable to a non-contractual obligation aris-
ing out of a restriction of competition shall be the law
of the country where the market is, or is likely to be,
affected.

(b) When the market is, or is likely to be, affected in more
than one country, the person seeking compensation
for damage who sues in the court of the domicile of
the defendant, may instead choose to base his or her
claim on the law of the court seised, provided that the
market in that Member State is amongst those directly
and substantially affected by the restriction of compe-
tition out of which the non-contractual obligation on
which the claim is based arises; where the claimant
sues, in accordance with the applicable rules on juris-
diction, more than one defendant in that court, he or
she can only choose to base his or her claim on the
law of that court if the restriction of competition on
which the claim against each of these defendants relies
directly and substantially affects also the market in the
Member State of that court.

(b)

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

The law applicable under this Article may not be derogated

4.
from by an agreement pursuant to Article 14.

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Article 7

Environmental damage

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.

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

4. Where it is clear from all the circumstances of the case that
the non-contractual obligation arising out of unjust enrichment
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 8

Infringement of intellectual property rights

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

Article 11

Negotiorum gestio

1.
If a non-contractual obligation arising out of an act per-
formed without due authority in connection with the affairs of
another person concerns a relationship existing between the par-
ties, 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.

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 dam-
age occurs, the law of that country shall apply.

The law applicable under this Article may not be derogated

3.
from by an agreement pursuant to Article 14.

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.

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 enrich-
ment, 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 gov-
erns that relationship.

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

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, irrespec-
tive of the country in which the event giving rise to the dam-
age 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 dam-
age 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.

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Article 13

Applicability of Article 8

(c)

the existence, the nature and the assessment of damage or
the remedy claimed;

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

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

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 provi-
sions of the law of that other country which cannot be dero-
gated 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 appro-
priate 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

(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.

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 liability.

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 com-
pensation if the law applicable to the non-contractual obligation
or the law applicable to the insurance contract so provides.

Article 19

Subrogation

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;

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 govern-
ing their relationship.

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Article 20

Multiple liability

Article 24

Exclusion of renvoi

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 gov-
erned by the law applicable to that debtor’s non-contractual obli-
gation 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
the law governing the non-
contractual obligation in question or the law of the country in
which the act is performed.

requirements of

Article 22

Burden of proof

1.
The law governing a non-contractual obligation under this
Regulation shall apply to the extent that, in matters of non-
contractual obligations, it contains rules which raise presump-
tions of law or determine the burden of proof.

2.
Acts intended to have legal effect may be proved by any
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 for-
mally valid, provided that such mode of proof can be adminis-
tered by the forum.

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

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 obli-
gations, 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 obligations
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.

Article 27

Relationship with other provisions of Community law

CHAPTER VI

OTHER PROVISIONS

Article 23

Habitual residence

This Regulation shall not prejudice the application of provisions
of Community law which, in relation to particular matters, lay
non-contractual
down
obligations.

conflict-of-law rules

relating

to

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 dam-
age 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.

Article 28

Relationship with existing international conventions

This Regulation shall not prejudice the application of inter-
1.
national 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-contractual
obligations.

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.

2.
However, this Regulation shall, as between Member States,
take precedence over conventions concluded exclusively between
two or more of them in so far as such conventions concern mat-
ters governed by this Regulation.

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CHAPTER VII

FINAL PROVISIONS

Article 29

List of conventions

1.
By 11 July 2008, Member States shall notify the Commis-
sion of the conventions referred to in Article 28(1). After that
date, Member States shall notify the Commission of all denuncia-
tions 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

1.
Not later than 20 August 2011, the Commission shall sub-
mit to the European Parliament, the Council and the European
Economic and Social Committee a report on the application of
this Regulation. If necessary, the report shall be accompanied by
proposals to adapt this Regulation. The report shall include:

which courts in the Member States apply foreign law in prac-
tice pursuant to this Regulation;

(ii) a study on the effects of Article 28 of this Regulation with
respect to the Hague Convention of 4 May 1971 on the law
applicable to traffic accidents.

2.
Not later than 31 December 2008, the Commission shall
submit to the European Parliament, the Council and the Euro-
pean Economic and Social Committee a study on the situation
in the field of the law applicable to non-contractual obligations
arising out of violations of privacy and rights relating to person-
ality, taking into account rules relating to freedom of the press
and freedom of expression in the media, and conflict-of-law
issues related to Directive 95/46/EC of the European Parliament
and of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data and
on the free movement of such data (1).

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

(i)

a study on the effects of the way in which foreign law is
treated in the different jurisdictions and on the extent to

This Regulation shall apply from 11 January 2009, except for
Article 29, which shall apply from 11 July 2008.

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 Strasbourg, 11 July 2007.

For the European Parliament
The President
H.-G. PÖTTERING

For the Council
The President
M. LOBO ANTUNES

(1) OJ L 281, 23.11.1995, p. 31.

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Commission Statement on the review clause (Article 30)

The Commission, following the invitation by the European Parliament and the Council in the frame of
Article 30 of the ‘Rome II’ Regulation, will submit, not later than December 2008, a study on the situation
in the field of the law applicable to non-contractual obligations arising out of violations of privacy and rights
relating to personality. The Commission will take into consideration all aspects of the situation and take
appropriate measures if necessary.

Commission Statement on road accidents

The Commission, being aware of the different practices followed in the Member States as regards the level of
compensation awarded to victims of road traffic accidents, is prepared to examine the specific problems
resulting for EU residents involved in road traffic accidents in a Member State other than the Member State
of their habitual residence. To that end the Commission will make available to the European Parliament and
to the Council, before the end of 2008, a study on all options, including insurance aspects, for improving
the position of cross-border victims, which would pave the way for a Green Paper.

Commission Statement on the treatment of foreign law

The Commission, being aware of the different practices followed in the Member States as regards the treat-
ment of foreign law, will publish at the latest four years after the entry into force of the ‘Rome II’ Regulation
and in any event as soon as it is available a horizontal study on the application of foreign law in civil
and commercial matters by the courts of the Member States, having regard to the aims of the Hague Pro-
gramme. It is also prepared to take appropriate measures if necessary.