COMMISSION STAFF WORKING DOCUMENT Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II Regulation)
Date: 2025-01-31
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: application of EU law, commercial law, law of obligations, restriction on competition

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 31.1.2025  SWD(2025) 9 final  COMMISSION STAFF WORKING DOCUMENT     Accompanying the document REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II Regulation) {COM(2025) 20 final}  
 
 
TABLE OF CONTENT 

Section 1 - Detailed Analysis of Rome II ............................................................................................... 2 

Section 2 - Studies ................................................................................................................................ 15 

Section 3 - Questionnaire circulated to the Member States (‘2023 Questionnaire’)............................. 21 

Section 4 - Relevant Case Law ............................................................................................................. 22 

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SECTION 1 - DETAILED ANALYSIS OF ROME II 

1.  OVERVIEW OF FINDINGS RELATED TO THE REGULATION’S PROVISIONS CHAPTER BY 

CHAPTER  

1.1 Scope of Rome II (Chapter I) 

The  material  scope  of  Rome  II  covers  non-contractual  obligations  that  have  arisen  or  are 
likely to arise in cross-border civil and commercial matters (Art. 1(1) and 2(1) Rome II). As an 
autonomous notion of EU law, the concept of ‘non-contractual obligations’ should be construed 
independently of definitions in national laws. As confirmed in ERGO1, its interpretation needs 
to take into account the aim of consistency between the application of the Rome II and Rome 
I Regulations2 as well as with the Brussels Ia Regulation. In addition to ERGO and subsequent 
case-law on Rome II3, further clarifications as to the interpretation of the notion of ‘matters 
relating to tort, delict or quasi-delict’ can be found in the extensive case law on the Brussels Ia 
Regulation.  

Overall, most stakeholders consulted in the context of the 2021 Study considered that Art. 1, 2 
and 3 of Rome II work well. Nevertheless, the 2021 Study gives an account of specific areas 
where case law does not exist yet and where uncertainty about the characterization of specific 
claims as contractual or non-contractual has been raised in the doctrine4. In addition, the 2021 
Study  also  reported  that  the  interpretation  of  certain  exclusions  from  scope  remains  to  be 
clarified5. 

MS likewise reported that they were mostly not aware of application problems in relation to 
Art. 1, 2 and 3 of Rome II. Two MS pointed out that it is unclear whether other non-contractual 
and non-tort cases, which are not specifically included in Chapter III of Rome II (such as public 
promise  or  promise  of  indemnity),  are  excluded  from  Rome  II. As  regards  exclusions  from 
scope,  a  couple  of  MS  indicated  residual  uncertainties  as  to  the  application  of  Rome  II  to 
prospectus  liability  and  questioned  the  delimitation  of  Art.  1(2)(d)  in  specific  cases6. 
Nevertheless, it was argued that these uncertainties should be resolved by case law. 

Hence, the application of Chapter I of Rome II is generally unproblematic.  

Nevertheless, as elaborated in the main report, the existence of the exclusion from the scope 
for  ‘non-contractual  obligations  arising  out  of  violations  of  privacy  and  rights  relating  to 

1 See Section 4 on case law. 
2 The term ‘non-contractual’ in Rome II has been defined negatively and it encompasses damage claims that cannot 
be classified as ‘contractual’ (i.e. situations in which in essence there is an obligation freely assumed by one party 
towards another).  
3 Verein für Konsumenteninformation; BMA Nederland, etc. See Section 4.  
4 This includes the classification of: (i) an offering or announcement of a promotional prize; (ii) liability of an 
expert  for  an  opinion  vis-a-vis  persons  who  have  not  themselves  concluded  a  contract  with  the  expert;  (iii) 
protective effects of a contract in favour of third parties; (iv) claims under property law; or (v) claims for refunds 
based  on  an  act  of  specific  public  power,  e.g.  in  cases  where  the  state  takes  responsibility  for  remedying 
environmental damage but imposes the cost of doing so on a private party. 
5 This applies specifically to letters (c) and (d) of Article 1(2).  
6 For instance, whether the lit.(d) applies to the liability of officers and members of a company in situations, such 
as the damage caused by a misuse of the company form leading to a piercing of the corporate veil. Similar concerns 
had also been raised in the 2021 Study.  

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personality,  including  defamation’  has  been  subject  to  consistent  criticism  from  various 
sources.  

1.2 Non-contractual obligations arising out of tort or delict (Chapter II) 

1.2.1. General rule (Art. 4)  

On Art. 4(1) of Rome II and the issue of indirect victims, some questions were resolved by the 
CJEU in Lazar7, which held that, where family members of the victim of a road accident had 
not themselves been present at the scene of the accident, the country of damage in respect of 
their own  claim  as indirect  victims  (e.g. for immaterial  damage due to  the death of a  close 
relative) is the country where the accident took place, not that in which those family members 
were themselves resident. 

Opinion  is  divided  on  whether Art.  4(2)  of  Rome  II  (law  of  joint  habitual  residence  of  the 
person claimed to be liable and the person sustaining damage) can be applied in the case of 
multi-party torts in which only some of the victims are habitually resident in the same country 
as some of the persons claimed to be liable. Some MS in the 2023 Questionnaire took the view 
that  this  provision  was  perfectly  capable  of  being  applied  without  any  problems,  other  MS 
opined that it should be applied only if all parties were habitually resident in the same country 
and two MS opted for an intermediate position that would apply the provision even in cases in 
which  not  all  parties  had  the  same  habitual  residence,  with  any  resulting  anomalies  being 
corrected by resort to the displacement clause in Art. 4(3) of Rome II. 

Finally, difficulties were reported with applying Art. 4 to financial market torts and determining 
the place of damage in these cases. This is further elaborated in the main report. 

1.2.2. Other torts and delicts (Art. 5 to 9) 

•  On product liability (Art. 5), the issues identified by the 2021 Study were marginal 
and largely academic8. Views diverge on how to interpret the term ‘product’ in Art. 5(1), 
first  sub-paragraph,  especially  when a comparison is  made with  the language of the 
second sub-paragraph, where reference is made to the ‘the product, or a product of the 
same type’. The question is whether the term ‘product’ in the first sub-paragraph also 
refers  to  (i)  a  product,  which  is  not  the  very  same  item  as  the  defective  product  in 
question but belongs to the same issue or series of the manufacturer and shows therefore 
only minor differences (e.g. in marking or packaging); or (ii) any product of the same 
type. 

•  On  unfair  competition  (Art.  6),  the  CJEU  clarified  in  VKI  v  Amazon  that  ‘unfair 
competition’ covers the use of unfair terms inserted into general terms and conditions. 
In addition, the ‘country in which the collective interests of consumers are affected’ is 
the country of residence of the consumers to whom the undertaking directs its activities 
and whose interests are defended by the relevant consumer protection association by 
means of the action in question. The scope of Art. 6(3) of Rome II (acts restricting free 

7 See Section 4. 
8 One debate regarded which law applies if none of the conditions of Art. 5(1) sentence 1 lit. (a), (b) or (c) of 
Rome II are met. 

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competition) raised some limited academic discussion in three MS as reported in the 
2021 Study9.  

•  On environmental damage (Art. 7), the 2021 Study noted that Art. 7 of Rome II has 
not caused major problems and the areas of uncertainty identified are mostly academic, 
including (i) the interaction of Art. 7 with Art. 17 and the effect of foreign authorisations 
on the liability of the polluter10, (ii) its analogous application where the country where 
the harmful event occurred and the one of the event giving rise to the damage apply 
conflicting conditions for environmental permits, (iii) the determination of the place of 
the decision causing the environmental damage and (iv) the notion of environmental 
damage in cases of corporate abuses against human rights.  

•  As concerns non-contractual obligations arising out of an infringement of intellectual 
property (‘IP’) rights (Art. 8), Rome II provides for the application of the law of the 
country for which protection is claimed (lex loci protectionis). Since IP infringements 
often have a cross-border dimension and high financial value, this provision is applied 
rather frequently. This remains true even though numerous international conventions11 
and specialised EU regulations12 exist in the area of IP rights and prevail over Rome II 
for those aspects that are regulated in these instruments.  

Generally  speaking,  the  rules  in Art.  8  and  13  of  Rome  II  are  considered  suitable. 
Nevertheless, several specific concerns have been raised. 

For instance, it was reported that the application of the lex loci protectionis rule was 
complicated  in  cases  where  IP  infringement  happens  simultaneously  in  several 
countries, especially in case of IP infringements on the Internet. Content placed on the 
Internet can usually be accessed from any country and may thus possibly infringe IP 
law in any country. A simultaneous application of all those national laws may in turn 
be necessary in a single proceeding. This issue seems to be particularly pertinent with 
respect  to  copyright,  since  copyright  does  not  require  prior  registration  to  receive 
protection in most countries. This ‘mosaic’ approach of Rome II to the determination 
of  the  applicable  law  follows  from  the  territorial  nature  of  IP  rights.  Nevertheless, 
having  to  apply  numerous  national  laws  in  a  single  procedure  was  flagged  as 

9 RO and BE doctrine questioned whether the  ‘mosaic approach’ should be adopted when markets of multiple 
countries  are  affected  by  unfair  market  practices.  SI  doctrine  questioned  whether Art.  6(3)  applies  to  all  acts 
restricting free competition or if Recital 23 of Rome II restricts its application to acts prohibited in the Treaty on 
the Functioning of the EU. See the 2021 Study. 
10 One MS in the 2023 Questionnaire argued that a choice of law in favour of the law of a country where the 
damage occurred should not prevent a court seised in the place where the event giving rise to the damage occurred 
to take into account the rules of safety and conduct of its own legal system (esp. in cases where the chosen national 
law does not prohibit certain potentially dangerous environmental activities). 
11  In  particular  the  Berne  and Paris  Conventions. A  debate  exists  nevertheless  as  to  the  extent  to  which  these 
conventions include rules which would prevail over the rules on applicable law in Rome II. 
12 For instance, the European Trademark Regulation (Regulation (EU) 2017/1001 of the European Parliament and 
of  the  Council  of  14  June  2017  on  the  European  Union  trade  mark,  OJ  L  154,  16.6.2017,  p.  1–99)  or  the 
Community  Design  Regulation  (Council  Regulation  (EC)  No  6/2002  of  12  December  2001  on  Community 
designs, OJ L 3, 5.1.2002, p. 1–24). 

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problematic  both  in  the  2021  Study13,  by  several  MS  and  in  the  context  of  a  study 
commissioned by the European Parliament14, especially as concerns copyright. Against 
this background, adjustments were suggested by several experts to the general lex loci 
protectionis rule with a view to address the specificity of ubiquitous infringement of 
copyright  on  the  internet15,16.  In  this  regard,  doctrine  in  some  MS  also  questioned 
whether it should be possible to choose the law applicable to IP infringements (esp. in 
cases of online infringement), contrary to the current rule in Art. 8(3) Rome II17. 

In  addition,  several  other  minor  application  difficulties  were  reported  which  could 
possibly be sufficiently addressed by additional text in a recital. First, uncertainty seems 
to remain as to what rights are covered under ‘IP rights’, despite the non-exhaustive list 
in  recital  26.  It  was  suggested  to  further  clarify  whether  for  instance  geographical 
indications  and  protected  designations  or  origin,  trade  secrets  and  undisclosed 
knowhow  are  covered.  Second,  an  issue  of  some  uncertainty  has  been  raised  on  the 
demarcation between Art. 6 on unfair competition and acts restricting free competition 
and Art. 8 (e.g. cases involving comparative advertising, a company’s reputation, trade 
secrets, ‘slavish imitations’, or a practice of invoking non-existing IP rights to weaken 
the competitor). Third, differences of views exist concerning the law applicable to IP-
related questions such as  ownership or the existence and reach of an IP right. Some 
consider that Rome II should apply to these aspects, while others argue that these are 
preliminary  questions  that  are  assessed  under  international  conventions,  national 
conflict-of-laws rules or Rome I Regulation18. 

Finally, as concerns Art. 8(2) of Rome II it seems that the Nintendo and Acacia CJEU 
case law19 have usefully clarified the application of Rome II to unitary community IP 
rights.  

13 P. 36. 
14 Study on Cross-border Enforcement of Intellectual Property Rights in the EU. 2021, p. 57, 58.  
15 See e.g. the CLIP Principles proposing an applicable law rule for ubiquitous infringements of IP rights, which 
would be based on the closest connection with the infringement. 
16 See e.g. p. 241, 242 of the 2021 Study for references to solutions on how the application of virtually all laws of 
the world can be avoided in cases of IP infringements on the Internet, and for the academic debate whether the 
principle of universality (according to which the law of the first publication or nationality of the author governs 
the  protection  of  the  work  world-wide)  should be  favoured  as  opposed  to  the  principle  of  territoriality  (under 
which copyright protection depends on the country in which protection is sought).  
17 See e.g. p. 154 of the 2021 Study. 
18 See Section 4, WEAREONE.WORLD, pending. 
19 See Section 4 for details.  
Nintendo concerned those aspects of unitary community IP rights that are not governed by EU IP regulations. The 
CJEU ruled that Rome II can apply to determine the national law applicable to those aspects. In those cases, the 
‘country in which the act of infringement was committed’ referred to in Art. 8(2) of Rome II is the country where 
the event giving rise to the damage occurred, and not the countries where the damage occurred. In cases where an 
entity supposedly carries out various acts of infringement in various Member States, the ‘event giving rise to the 
damage’ must not be interpreted by reference to each alleged act of infringement but should instead be determined 
by making an overall assessment of the defendant’s conduct.  
In contrast, as the CJEU ruled in Acacia, where the court is seised to rule on the infringement of the unitary IP 
right only within the territory of its MS, Art. 8(2) Rome II can be interpreted as the law of the MS where the court 
is located. 
However, one MS pointed out in the 2023 Questionnaire that the precise interpretation of Art. 8(2) Rome II is not 
yet settled in the judicial practice and another MS reported that the overall assessment of defendant’s conduct (as 

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•  On industrial action (Art.9), the 2021 Study reported only a potential need to clarify 
whether Art. 9 applies to third persons not directly connected to the strike and what is 
to be considered ‘the country where the action is to be, or has been, taken’ if the action 
occurs in a virtual place.  

In conclusion, while on the application of the provisions on product liability or industrial action 
there  are  no  significant  issues,  for  other  torts,  such  as  unfair  competition,  environmental 
damage, or IP infringements some issues have been raised.  

1.3 Unjust enrichment, negotiorum gestio, culpa in contrahendo (Chapter III) 

There is general  agreement that the provisions of Chapter III of Rome II work well and no 
significant issues were brought up concerning their practical application. The consensus is that 
any outstanding questions can be clarified by case law. 

1.4 Freedom of choice (Chapter IV) 

There has been little recourse to the possibility offered by Rome II to choose the applicable law 
before  or  after  the  non-contractual  obligation  has  arisen.  Exceptions  to  this  principle  exist 
where there was a pre-existing contract in which the parties had chosen also to regulate the law 
applicable among others to non-contractual obligations arising out of the performance of the 
contract. Furthermore, in MS in which a court will not apply a foreign law unless that is pleaded 
by  one  of  the  parties,  the  parties  may  effectively  make  such  an  agreement  by  simply  not 
invoking a foreign law.  

1.5 Common rules (Chapter V) 

No  problems  were  reported  by  any  MS  on Article  15  (scope).  By  contrast,  the  2021  Study 
indicated some issues with determining the extent to which that article applies to the powers of 
the courts to assess damages, in particular in personal injury cases in which damages payable 
under the applicable law might be at variance with those payable according to the law of the 
country  in  which  the  victim  is  resident  and  in  which  he  may  require  care.  This  would  be 
particularly problematic where for example the country of injury is a low-cost country which 
applies fixed tariffs for particular types of injury.  

On Article 16, overriding mandatory provisions (OMPs) no MS identified a problem. Several 
referred  to  Da  Silva  Martins  in  which  the  CJEU  defined  the  concept  narrowly. As  one  MS 
pointed out, it is perfectly clear that Article 16 only permits OMPs of the forum to be applied. 
This is corroborated by the legislative history of Rome II in that the Commission had proposed 
to allow OMPs of countries other than the forum to be applied in limited circumstances, but 
this  suggestion  was  deleted  in  the  course  of  the  legislative  process.  Nevertheless,  the  2021 
Study indicated that some stakeholders disputed this proposition and, in addition, advocated 
that a definition of OMPs be inserted in Rome II, as is the case with the Rome I Regulation. 

necessary  under  the  Nintendo  case  law  for  determining  the  country  in  which  the  act  of  infringement  was 
committed) may prove difficult. 

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On Article 18 (direct action against insurers) most MS indicated that there were no problems 
of application except possibly better coordination with Section 3 of Chapter II of the Brussels 
Ia Regulation which governs jurisdiction in matters relating to insurance.  

In conclusion, no major issues were identified in relation to this chapter.  

1.6 Other provisions and final provisions (Chapters VI and VII) 

On the issue of coordination between Rome II and closely related instruments such as the Rome 
I and Brussels Ia Regulations, most MS indicated that there was no major problem. However, 
some were of the view that it was inconvenient to have the choice of law regime for obligations 
in two separate instruments – Rome I and Rome II20.  

Some MS indicated that there was a lack of clarity as to the relationship between Rome II and 
the e-Commerce Directive. This point is corroborated by the 2021 Study which indicates that 
in certain MS there is a dispute as to  whether that Directive contains a hidden conflict  rule 
although the CJEU confirmed that in eDate/Martinez that this is not the case. Nevertheless, the 
prohibition on restriction to the freedom to provide information society services, pursuant to 
Recital  23  of  the  e-Commerce  Directive,  may  have  an  impact  on  the  application  of  the 
substantive law designated by the conflict of law rules of the forum. 

2.  TRAFFIC ACCIDENTS AND ROME II 

Increasing cross-border traffic and transport lead to growing numbers of traffic accidents that 
have  an  international  element.  The  scope  of  Rome  II  includes  the  law  applicable  to 
non-contractual obligations arising out of traffic accidents with an international element and 
this  is  arguably  the  practically  most  relevant  area  of  the  application  of  its  rules.  The 
harmonisation of the conflict-of-law rules for torts related to traffic accidents thus considerably 
increases legal certainty (not only) for the victims of traffic accidents.  

Nevertheless, specific concerns have arisen in this area – first, the interaction of Rome II with 
the 1971 HCCH Convention;  second, the problems  arising  from  the differences in  Member 
States’ laws concerning the compensation for traffic accidents, in particular the different levels 
of compensation and the different rules on limitation periods. It should nevertheless be noted 
that  the  problems  related  to  differences  in  Member  States’  laws  stem  from  the  lack  of 
harmonisation of the substantive and procedural rules in the area rather than from the Rome II 
and its conflict-of-laws regime. 

2.1 The interaction of Rome II with the 1971 HCCH Convention  

Article  28(1)  of  Rome  II  allows  the  Member  States  which  are  parties  to  the  1971  HCCH 
Convention on the law applicable to traffic accidents21 to continue to apply that instrument22. 
Consequently, there are two conflict of laws regimes in place for claims arising from cross-

20  It  was  argued  that  merging  Rome  I  and  Rome  II  into  one  legislation  dealing  with  applicable  law  to  both 
contractual and non-contractual obligations would facilitate the application of the rules. 
21 Convention of the Hague Conference on Private International Law of 4 May 1971 on the Law Applicable to 
Traffic Accidents. 
22 13 Member States (AT, BE, HR, CZ, FR, LV, LT, LU, NL, PL, SK, SI, ES) are Contracting Parties to the 1971 
HCCH Convention.  

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border  traffic  accidents.  This  dualism  compromises  the  objective  of  Rome  II  of  creating 
certainty as to the law applicable.  

For instance, while both Rome II and the 1971 HCCH Convention contain the same general 
rule for determining the applicable law – the law of the country where the accident occurred – 
they diverge when it comes to the exceptions to the general rule. In this respect, Art. 4(2) of 
Rome II provides that where both the person claimed to be liable and the victim have their 
habitual residence in the same country, the law of that country shall apply. By contrast, the 
1971 HCCH Convention, provides for the application of the law of the country of registration 
of the vehicle or vehicles involved in some cases. Where several vehicles are involved in the 
accident, the law of the state of registration only applies if all vehicles are registered in the 
same country. Rome II and the 1971 HCCH Convention also diverge when it comes to party 
autonomy: Art. 14 of Rome II allows the parties to an accident to choose the applicable law, 
whereas the 1971 HCCH Convention does not have a comparable provision.  

The very existence of the Convention undermines legal certainty and predictability and may 
lead to forum shopping23. Given that the law on compensation for damages differs considerably 
within the EU, the question which law applies to a claim resulting from a cross-border traffic 
accident may have significant impact on the outcome of a case. As a result, the law applicable 
to claims arising out of the traffic accident will in certain – albeit limited numbers of – cases 
differ, depending on the court seised of the case.  

The  present  situation  has  been  seen  as  undesirable  both  in  the  2021  Study24,  in  academic 
literature, by Member States25 and by the European Parliament26. Nevertheless, already during 
the negotiations of Rome II, it proved difficult to find a suitable solution to this situation. It did 
not  seem  feasible to  require  either those Member States  that are  parties to the  1971 HCCH 
Convention to denounce the Convention or those which are not parties to the Convention to 
accede to it, particularly because its rules are generally perceived as less modern and efficient 
than those of Rome II. Remaining options suggested by both practitioners and national experts 
consulted in the 2021 Study could consist e.g. in amending the provision to include specific 
guidance on the interplay between Rome II and other international instruments (in particular 

23 It was pointed out in the  2021 Study and by Member States in the 2023 Questionnaire that Member States’ 
courts frequently fail to apply the 1971 HCCH Convention – for instance since they overlook its existence or its 
precedence over Rome II, or since they assume that it only applies if there is no connection to a Member States 
other  than  the  forum,  or  since  Rome  II  includes  a  relevant  rule,  while  the  Convention  does  not  (such  as  on 
overriding mandatory provisions or subrogation). 
24 40% of the respondents from Contracting Parties to the 1971 HCCH Convention answered that issues emerged 
from the interplay between Rome II and the Convention, in particular that the applicability of the 1971 HCCH 
Convention is sometimes overlooked. 
25 In the 2023 Questionnaire, some MS mentioned practical issues with the application of the two different rules 
on the law applicable to non-contractual claims arising out of traffic accidents. One MS suggested that a possible 
solution could be to revise Article 28 of Rome II to the effect that the Member States that are parties to the 1971 
HCCH  Convention  apply  it  only  where  the  non-contractual  legal  relationship  arising  from  a  traffic  accident 
involves non-EU Member States that are party to the Convention. In other cases, Rome II would apply.  
26 European Parliament resolution 2015/2087(INL) of 4 July 2017 with recommendations to the Commission on 
limitation  periods  for  traffic  accidents  noted  that  the  continued  existence  in  the  EU  of  two  parallel  regimes 
governing the law applicable in traffic accident cases depending on the country where the claim is brought, namely 
either the 1971 HCCH Convention or Rome II, which combined with the choice of forum possibilities under the 
Brussels Ia Regulationhttps://www.europarl.europa.eu/doceo/document/TA-8-2017-0281_EN.html, creates legal 
uncertainty and complexity as well as potential opportunities for forum shopping. 

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the relevant Hague Conventions), with explicit referral to the instruments in question. Another 
option could consist in pursuing a revision of the 1971 HCCH Convention in the context of the 
Hague Conference on Private International Law.  

2.2  Differences  in  Member  States’  laws  on  limitation  periods  for  claims  arising  from 
traffic accidents 

Claims for compensation for victims of traffic accidents  – as all other civil claims – can be 
pursued within time limits prescribed by the national laws of Member States. In cross-border 
cases,  in  accordance  with Articles  4  and  15(h)  of  Rome  II,  the  applicable  time-limits  for 
bringing  a  claim  are  determined,  in  principle,  by  the  law  of  the  State  where  the  accident 
occurred27.  This  rule  has  increased  legal  certainty.  However,  national  substantive  laws  on 
limitation periods differ28. These differences may give rise to undesirable consequences for the 
victims of accidents in cross-border litigation and create obstacles for injured individuals trying 
to assert their rights in a Member State other than their own, particularly if the applicable law 
is less favourable than the law of their Member State.  

The  problems  created  by  the  divergence  of  national  limitation  and  prescription  periods  for 
victims of cross-border road traffic accidents were highlighted in 2007 and 2017 resolutions 
of the European Parliament29. 

A study launched by the Commission in 2008 (‘Study on road traffic accidents’), presented in 
more detail in Section 2, described the state of play at the time and developed certain policy 
options for improving the situation.  

On the basis of this study, public consultations were carried out by the Commission in 2009 
and 2012. In general, the answers received usually reflected the interests of the respondents. 
Member  States  and  the  representatives  of  the  insurance  industry  perceived  the  practical 
occurrence  of  cross-border  traffic  accident  cases  which  failed  due  to  the  expiration  of  the 
limitation period as minimal or hardly measurable and hence saw no real pressure to act. They 
held  that  in  most  cases  victims  acted  promptly  (in  due  time).  By  contrast,  organisations 
protecting the interests of victims (like road safety associations, bars which include personal 
injury lawyers as members) regarded the divergences in the national limitation and prescription 
periods  for  victims  of  road  traffic  accidents  as  significant  and  provided  examples  where 
differences between national limitation periods left victims uncompensated.  

There was general agreement that it would be helpful to improve the provision of information 
on the current legal situation. Therefore, the Commission has made available country fiches 
describing the national limitation periods for each Member State on the e-Justice Portal. The 

27 Article 15(h) Rome II provides that the law applicable to non-contractual obligations shall govern 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. 
28  The  laws  on  limitation  periods  differ  e.g.  as  concerns  the  length  of  the  period,  events  or  circumstances 
determining when it starts to run, circumstances resulting in the interruption or suspension of running of limitation 
periods, courts’ discretion to extend them. 
29  Resolution  of  the  European  Parliament  2006/2014(INI)  of  1  February  2007  with  recommendations  for  the 
Commission on limitation periods in cross-border disputes involving injuries and fatal accidents; and Resolution 
of  the  European  Parliament  2015/2087(INL)  of  4  July  2017  with  recommendations  to  the  Commission  on 
limitation  periods  for  traffic  accidents,  accompanied  by  2016  European  Added  Value Assessment  report  on 
Limitation periods for road traffic accidents. 

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country fiches are developed and regularly updated through the European Judicial Network in 
Civil and Commercial Matters. They are an important step to improve the situation through 
enhanced information. They can contribute significantly to avoiding undesirable consequences 
for  the  victims  of  accidents  in  cross-border  cases,  which  may  be  caused  by  the  differences 
between national substantive laws on limitation and prescription periods. 

Finally, it must be borne in mind that limitation periods for traffic accident cases cannot be 
seen in isolation. They are part of the more general law on limitation and prescription which is 
embedded in the civil and procedural law of the national legal systems30. 

2.3 Differences in levels of compensation for claims arising from traffic accidents in the 
EU 

Already  the  Study  on  road  traffic  accidents  provided  detailed  account  of  the  important 
differences  in  national  laws  as  regards  compensation  levels  for  victims  of  traffic  accidents, 
leading to significantly different calculations of compensation for damages caused to victims. 
This may lead to a victim of a road traffic accident being undercompensated where the law of 
the place of the accident (applicable by virtue of Art. 4(1) of Rome II) has rigid rules31 on the 
upper level of awardable damages (for example loss of earnings, conversion of a dwelling for 
a victim who has become paraplegic or provision of long term care) that may be adequate for 
victims resident in that country but insufficient for victims resident in a higher cost country.32 
This point is acknowledged in Recital 33 of Rome II which states that, in such a situation, the 
court seised should take into account all the relevant circumstances of the victim, including the 
actual  losses  and  costs  of  after-care  and  medical  attention.  However,  this  recital  cannot  be 
interpreted to override the wording of Art. 4(1) where there is a conflict. 

3.  APPLICATION OF FOREIGN LAW  

3.1 Origin of the issue 

The issue of the application of foreign law is of horizontal nature as it arises with respect to all 
EU private international instruments including rules on applicable law. It is thus not specific to 
Rome II. Nevertheless, the issue of applying foreign law was raised during the negotiations of 
Rome II as this Regulation was the first EU instrument that included rules of applicable law.  

As  a  result,  the  Rome  II  Regulation  included  an  obligation  that  the  European  Commission 
conducts  a  study  ‘on  the  effects  of  the  way  in  which  foreign  law  is  treated  in  the  different 
jurisdictions  and  on  the  extent  to  which  courts  of  the  Member  States  apply  foreign  law  in 
practice pursuant to this Regulation’. As a result, the Commission published a Study on the 
application of foreign law in 2011. This study is summarised in Section 2.  

30 As there is usually no distinct rule on limitation period for traffic accidents in Member States’ legal systems but 
rather a general rule on limitation for all torts, harmonising only those limitations for traffic accidents could be 
unsystematic. 
31 Approaches in judicial practice differ where the lex causae merely contains guidelines. Compare Wall v Mutuelle 
de Poitiers Assurances 2014 EWCA Civ 138 (Guidelines sent to judges in France on damages should at least be 
taken into account where the lex causae is French) with Kelly v Groupama 2012 IEHC 177 (holding that the same 
guidelines are merely practice and should thus be discounted since practice is a matter for the lex fori). 
32 See for example Scales v Motor Insurer’s Bureau [2020] EWHC 1747 in which the judge applied Spanish law, 
which contained fixed rules on quantum, despite conceding that it left the claimant under compensated.  

10 

 
 
 
Besides the 2011 Study on the application of foreign law, also the 2021 Study on Rome II and 
2023  Questionnaire  dealt  with  the  topic  of  how  foreign  law  is  ascertained  and  applied  in 
practice  pursuant  to  Rome  II.  In  the  context  of  the  2021  Study,  49%  of  the  consulted 
stakeholders noted courts’ difficulties in ascertaining the content of foreign law. The replies of 
MS also pointed to practical problems with ascertaining and applying foreign law. 

In particular, the 2021 Study registered some reluctance from the courts to apply foreign law, 
particularly the law of a non-EU MS, as two experts reported marginal cases where the courts 
seemingly  tried  to  avoid  the  application  of  foreign  law  by  applying  the  escape  clause  to 
establish a closer connection with the law of the forum.  

Procedural divergences exist between MS, as foreign law is either considered a question of law 
or  fact,  leading  to  differences  specifically  in  the  roles  of  judges,  parties  and  experts.  Many 
participants in the 2021 Study highlighted the inadequacy of expertise, linguistic barriers, the 
length of processes for ascertaining foreign law, particularly where the information provided 
through national bodies or foreign jurisdictions consist in the mere reproduction of legal texts, 
without any background information or illustration of how those texts are normally understood 
and  applied  in  practice.  On  the  other  hand,  expert  opinions  that  provide  such  additional 
elements of understanding require time, and the costs are borne by the parties. A MS where 
foreign law is considered a question of law reported difficulties for the judges to ascertain the 
content by experts as a means of evidence because expert evidence can only be provided on 
matters of fact. The establishment of foreign law, including the extent of its application ‘as the 
foreign judge would do’, was identified among matters that could be classed as procedural.  

3.2 Question of law or question of fact 

In most MS the court determines the content of foreign law on its own initiative and that law 
is  to  be applied as it is  interpreted where it was  adopted. In one MS an option is  expressly 
provided for in the civil procedural code to identify the content and meaning of foreign law 
through the taking of evidence, otherwise permitted only for facts. In another MS, the burden 
of proof relating to the content of foreign law is shared between the court and the parties33. 
Only in two MS34 the content and application of foreign law must be proven by the interested 
party, on which the burden of finding an expert and proving the content of foreign law lies. 
This means that if foreign law is not proven, national law will apply.  

3.3 Information about foreign law 

At the EU level, the e-Justice Portal and the European Judicial Network in civil and commercial 
matters  are  valuable  tools  for  accessing  information  on  foreign  laws.  The  e-Justice  Portal 
provides a centralized platform offering legal information and resources, while the European 
Judicial Network facilitates direct communication and cooperation between judicial and other 
authorities and contact points in different EU countries, helping practitioners obtain accurate 
and up-to-date legal information across borders.  

33 The court may avail itself of its powers and may order, even of its own motion, the taking of all evidence that 
it considers necessary or, where the application of a foreign law is at issue, it may order the party concerned to 
provide proof of its content. 
34 MT and ES 

11 

 
 
 
In most MS courts may request information from the ministers of justice, other bodies, experts, 
or institutions of comparative law.  

The parties are also allowed or can be invited to submit public or private documents on the 
content of the law. As far as is reasonable, the parties must cooperate, especially if they can 
access  sources  of knowledge on the foreign  legal  system without difficulty. They may help 
identify foreign law by submitting their own, private expert opinions. However, the court is not 
bound by those submissions, and it must assess private expert opinions.  

The means  of communication provided for by the European Convention  on Information on 
Foreign Law (London Convention), signed in London on 7 June 1968, are also used by MS, 
although  some  observed  that  the  results  received  from  other  contracting  parties  are  often 
unsatisfactory  and  the  process  is  time-consuming.  During  a  meeting  of  European  Judicial 
Network in civil and commercial matters in 2023, it was observed that traffic accidents are the 
most frequent cases where courts use the London Convention because it allows to ask for the 
case law of another MS, especially in relation to immaterial damages.  

Other sources of information derive from letters rogatory, desk research or online legal sources, 
liaison magistrates or informal requests to knowledgeable persons or institutions. Some courts 
reported difficulties finding suitable experts who can supply opinions, whereas practitioners 
found obtaining expert opinions costly and time-consuming. In one M S, as a rule, the courts 
rely on the opinions of the specialised ministries of MS, while for third countries, they tend to 
place  this  burden  on  the  parties,  who  then  usually  rely  on  expert  opinions  provided  by 
professors, lawyers, notaries, etc.  

3.4 Problems and solutions from the practice 

Experience from practice shows that, if identifying the foreign law involves a high (financial) 
burden, the parties may also use the option of a subsequent choice of law under Article 14(2) 
of the Rome II Regulation, in some cases after conciliation. Two MS have solved the problem 
of unknown foreign law by providing that if the content of the foreign law is impossible to 
determine or cannot be established within a reasonable time, national law shall apply. In another 
MS, the parties may also waive the application of foreign law in favour of national law where 
the conflict-of-law rule referring to foreign law is not mandatory, as is the case where the parties 
include a choice-of-law clause in their contract. 

In relation to traffic accidents, one MS reported a case where a court decided not to follow the 
findings of the legal expert it had itself appointed in the country in which the accident occurred. 
Another  MS  provides  that  the  party  referring  to  the  foreign  law  shall  submit  to  the  court  a 
translation  of  the  text  into  the  official  language  certified  in  accordance  with  the  specified 
procedures. 

3.5 Suggestions concerning the application of foreign law 

The application of foreign law is not unique to private international law legislation, nor is it 
specific to Rome II. Although challenges in applying foreign law are recognized, they do not 
warrant a revision of Rome II. Instead, efforts should focus on facilitating the application of 
foreign law by courts and legal practitioners through various means. 

12 

 
 
At  the  EU  level,  these  can  include  in  particular  information  on  the  e-Justice  Portal  and 
cooperation  through  the  European  Judicial  Network  in  civil  and  commercial  matters. 
Accordingly,  in  the  2023  Questionnaire,  one  MS  suggested  publishing  on  the  European  e-
Justice Portal an overview for each country of the main sources of tort law for the most common 
category of case in district court practice – road traffic accidents with an international element. 
In addition, a database of foreign law experts with an indication of the country and language 
skills  was  also  suggested  useful  after  careful  weighing  of  costs  and  benefits. Another  MS 
proposed creating a dedicated search tool to allow each judge to independently search for the 
translated foreign legislation. 

4. BUSINESS AND HUMAN RIGHTS (‘BHR’) 

Rome II does not contain specific rules on the law applicable to human rights violations by 
EU-based companies directly operating or having subsidiaries or suppliers in third countries. 
In such cases, where a dispute is brought before a court in the EU, that court must apply the 
general rule, i.e. the law of the country where the damage occurred35. It is thus possible that 
the law applicable will be the law of a third country with weak regulatory standards.  

In the past, there was support, esp. among stakeholders and academics, for special rules tailored 
to  the  specificities  of  corporate  human  rights  abuses36.  The  most  prominent  suggestion 
consisted of adding a conflict-of-laws provision specific to human rights abuses, modelled on 
Art.  7  of  Rome  II  on  environmental  damage,  which  would  give  the  person  seeking 
compensation the choice between the law applicable under Art. 4 and the law of the country in 
which  the  event  giving  rise  to  the  damage  occurred37.  Since  human  rights  abuses  are  often 
closely intertwined with environmental damages and in the light of the emergence of the right 
to  a  healthy  environment  in  international  human  rights  law,  a  diverging  regime  regarding 
applicable law between human rights and environmental damages may be considered outdated 
and create unnecessary hurdles in access to justice for victims. 

In  addition,  besides  the  law  modelled  on Art.  7  of  Rome  II,  a  few  other  approaches  were 
proposed by academia and stakeholders – some based on targeted amendments, some requiring 
no legislative changes to Rome II38. 

35 Contrary to the Brussels Ia Regulation, Art. 4 of Rome II expressly excludes as relevant the place where the 
event giving rise to the damage occurred, which may be in EU MS, at least in some cases. 
36 The 2021 Study, p. 732, 734. 
37 In this respect, see the 2021 Study, p. 735.  
See further Report by the European Parliament proposing, among others, a special choice of law provision for 
civil claims on alleged BHR abuses, allowing the victim to choose between the lex loci damni, the lex loci delicti 
commissi and the law of the place where the defendant company is domiciled.  
See further Report by the EU Fundamental Rights Agency, suggesting as connecting factors for BHR abuses both 
the law of the country where the harm occurred or the law where the event giving rise to damage occurred. 
See  further  the  Recommendation  of  the  European  Group  for  Private  International  Law  (GEDIP/EGPIL), 
suggesting that the plaintiffs may choose the law of the  country in which the event giving rise to the damage 
occurred and that Art. 17 cannot be invoked by the defendants to exonerate or limit their liability. 
38 Other suggestions included e.g. using a mechanism similar to Art. 26 of Rome II (public policy) but specifically 
adapted to human rights abuses, or allowing courts to consider its domestic  rules of safety and conduct even if 
foreign law applies. It was also recommended that MS make use of overriding mandatory provisions and public 
policy exception provided for by Rome II more routinely in the context of BHR. 

13 

 
 
 
The recently adopted Directive on Corporate Sustainability Due Diligence (‘CSDD Directive’) 
targets  these  issues  as  it  requires  companies,  among  others,  to  ensure  via  due  diligence 
obligations that appropriate measures are taken to identify and assess, prevent, mitigate, bring 
to an end and minimise the extent of adverse human rights and environmental impacts arising 
from their own operations or those of their subsidiaries and, where related to their value chains 
(‘chains of activities’), those of their business partners. Companies failing to comply with their 
due diligence obligations may be held liable for damages caused to a natural or legal person 
that in turn has a right to be fully compensated for the damage, in accordance with national 
law.  

Neither Rome II nor the CSDD Directive contain a special conflict-of-law rule for BHR cases. 
The general rules of Rome II thus apply in principle with the possible consequence that the law 
of  a  third  country  with  insufficient  protection  standards  would  apply.  However,  the  CSDD 
Directive, which has a limited personal scope39, classifies the national provisions transposing 
its Article 29 on the civil liability of companies and the right to full compensation as overriding 
mandatory provisions. 

Following  the  adoption  of  the  CSDD  Directive  including  the  above-described  rule  on 
overriding  mandatory  provisions,  MS  appear  hesitant  as  to  the  desirability  of  a  specific 
mechanism  for  BHR  abuses  in  Rome  II.  They  largely  advocated  implementing  the  CSDD 
Directive first before further regulating the area. Some MS voiced reservations on the value 
added of a special rule or even potentially harmful consequences in terms of law shopping, 
others suggested that the existing rules of Rome II may be sufficient to address BHR violations, 
notably the provisions on overriding mandatory provisions or public policy or the application 
of rules of safety and conduct relating to the law of the place of the event giving rise to the 
damage under Art. 17 in conjunction with recital 34 of Rome II.  

39 It applies only to EU companies and parent companies above a certain number of employees and worldwide net 
turnover and to non-EU companies and parent companies above a certain EU net turnover (see Art. 2 of the CSDD 
Directive). In addition, the overriding mandatory character of the provisions implementing Art. 29 on civil liability 
does not cover all the items that fall under the material scope of the applicable law according to Art. 15 of Rome 
II. 

14 

 
 
 
SECTION 2 - STUDIES  

To  inform  the  preparation  of  this  application  report,  a  comprehensive  study  on  the 
application of the Rome II Regulation in the period of 2010 to 2020 was commissioned by 
the European Commission and conducted by the British Institute of International (BIICL) and 
Comparative  Law  and  Civic  Consulting40.  The  study,  published  in  2021,  included  a  legal 
analysis  and  assessment  of  the  practical  experience  and  problems  of  interpretation  in  the 
application  of  the  Rome  II  Regulation  for  the  period  2010-2020  and  conducted  a  special 
consideration with respect to certain special areas, such as artificial intelligence, business and 
human  rights  and  strategic  lawsuit  against  public  participation  (SLAPP).  The  Study  also 
provides an update of the areas already covered by the three previous studies. 

In addition, Article 30 of the Rome II Regulation required studies on certain specific matters. 
In this context, the Commission conducted the following three studies:  

1)  a study on compensation of victims of cross-border road traffic accidents in the EU – 

published in 200941;  

2)  a study on the law applicable to non-contractual obligations arising out of violations of 

privacy and rights relating to personality – published in 200942; and 

3)  a study on the application of foreign law by courts of the Member States – published in 

201143. 

These studies, while concluded soon after the adoption of Rome II, are summarised in this 
report for information and comprehensiveness.  

1.  2021 STUDY  

In preparation of this application report, the European Commission commissioned a study with 
the British Institute of International and Comparative Law in 2019 to gain up-to-date analysis 
on the application of Rome II.  

This study (‘2021 Study’) included in particular: 

•  analysis of CJEU decisions, relevant studies and main literature on Rome II; 
• 

reports  analysing  case  law,  doctrine  and  legal  issues  related  to  Rome  II  per  each 
Member State; 

40 Study on the Rome II Regulation (EC)  No  864/2007 on the law applicable to non-contractual obligations  - 
Publications Office of the EU (europa.eu). 
41 2009 study by Demolin, Brulard, Barthelemy – Hoche - Compensation of Victims of Cross-border Road Traffic 
Accidents  in  the  EU:  Comparison  of  National  Practices, Analysis  of  Problems  and  Evaluation  of  Options  for 
Improving the Position of Cross-border Victims.  
42  2009  study  by  MainStrat,  Comparative  Study  on  the  Situation  in  the  27  EU  Countries  as  regards  the  Law 
Applicable  to  Non-Contractual  Obligations  Arising  out  of  Violations  of  Privacy  and  Rights  Relating  to 
Personality.  
43 2011 study by Swiss Institute of Comparative Law on the Application of Foreign Law in Civil Matters in the 
EU Member States and Its Perspectives For the Future. 

15 

 
 
•  qualitative  interviews  with  over  100  experts  and  online  survey  distributed  amongst 

stakeholders with relevant experience44.  

It  specifically  focused  on  three  areas,  which  were:  Artificial  Intelligence  (AI),  strategic 
litigation against public participation (SLAPP) and business and human rights.  

The legal analysis and assessment of the practical experiences and problems of interpretation 
in the application of Rome II was limited to the period from 2010 to 2020.  

1.1 The results of the 2021 Study 

The overall assessment of the 2021 Study was that Rome II has worked well in practice45. 
This conclusion is also somewhat confirmed by the relatively small number of references for 
preliminary ruling on the interpretation of Rome II received by the CJEU.  

Nevertheless, some room for improvement was identified, especially with respect to the general 
rule (Art. 4) and  the material  scope (Art.  1)46 but also  with  the concept  of ‘non-contractual 
obligations’  (Art  2),  product  liability  (Art.  5),  unfair  competition  and  acts  restricting  free 
competition (Art. 6), environmental damage (Art. 7), freedom of choice (Art. 14), scope of the 
law applicable (Art. 15) and overriding mandatory provisions (Art. 16). A summary of the main 
uncertainties or issues linked to the application of each of the Articles can be found on p. 8 to 
10 of the 2021 Study.  

In relation to the areas covered by the previous studies and specifically regarding the exclusion 
of privacy and personality rights (including defamation), the 2021 Study concluded that the 
exclusion  under Art.  1(2)  lit.  (g)  of  non-contractual  obligations  arising  out  of  violations  of 
privacy  and  rights  relating  to  personality,  including  defamation,  is  considered  problematic. 
66% of the respondents were of the opinion that the sector of defamation and privacy needed 
a  common  set  of  EU  choice  of  law  rules,  to  improve  compatibility  with  the  Brussels  I  bis 
Regulation,  to  address  the  risks  of  forum  shopping,  and  to  support  legal  certainty  and 
predictability.  National  experts  expressed  the  need  for  a  rule  (encompassing  the  issue  of 
SLAPPs) in Rome II designating the law of the victim's habitual residence, without prejudice 
to Art. 14. 

With  respect  to  SLAPPs  (Strategic  Lawsuits  against  Public  Participation),  the  2021  Study 
described how claims in tort for defamation are used as SLAPPs. It described how the exclusion 
from the scope of Rome II for defamation influences this phenomenon, leading to the risk of 
forum and law shopping. It recommended that defamation, including outside of the context of 
SLAPPs, should be covered by Rome II. 

With respect to artificial intelligence, the 2021 Study took stock of the new challenges that 
may arise where AI systems are involved in creating non-contractual obligations (e.g. as a result 
of a damage caused by those systems). Nevertheless, the 2021 Study also noted the sparsity of 
case law in the area and a low response rate on this subject from experts participating in the 

44 In total, 102 respondents participated to the survey. Stakeholders comprise: 57 academics, 28 lawyers, 6 judges, 
1 business representative. 10 categorising themselves as “other”, including stakeholders with multiple professions 
(academic/lawyer, senior law clerk, arbitrator, consultant).  
45 See p. 720 of the 2021 Study. 
46 Respectively 29% and 28% of consulted experts and stakeholders. 

16 

 
 
study. It concluded that the future application of Rome II to AI cases depends in part upon how 
substantive legal systems will develop in response to AI.  

With  respect  to  business  and  human  rights,  the  2021  Study  analysed  the  issues  linked  to 
transnational cases involving human rights abuses and the application of Rome II in these cases. 
It presented several possible solutions proposed by academia and stakeholders to addressing 
those human rights abuses – whether in the context of an amendment to Rome II or through 
other means.  

On  traffic  accident  cases,  72%  of  the  respondents  considered  that  Rome  II  lays  down  an 
effective  set  of  rules  to  regulate  personal  injury  claims,  in  particular  road  traffic  accidents, 
while 28% would prefer special rules. Amongst those who have been involved in cases where 
Rome II has been applied to personal injury claims, a higher proportion (33%) called for special 
rules. On the impact of the application of the 1971 HCCH Convention on the law applicable to 
traffic accidents on legal certainty, experts and practitioners indicated that the applicability of 
the 1971 HCCH Convention is frequently overlooked, arguing that the parallel system creates 
a risk of forum shopping and negatively impacts legal certainty. Suggestions for improvement 
included  the  introduction  of  special  conflict-of-laws  rules  in  certain  areas  such  as  indirect 
victims, multi-vehicle accidents, damage assessment for long-term health problems, interests, 
insurance, limitation periods.  

On the application of foreign law, 49% of the consulted stakeholders noted courts’ difficulties 
in  ascertaining  the  content  of  foreign  law.  The  Study  concluded  that  procedural  divergence 
exists  between  the  Member  States,  specifically  in  the  roles  of  judges,  parties,  experts,  and 
national organisations, and regarding the status of foreign law (law or fact). Among the general 
issues identified are the additional time and costs pertaining to the ascertainment of foreign 
law, and the potential inaccuracy of application. Some respondents and national experts suggest 
the need for a European-level institute and/or an improved system of communication between 
Member State courts to enhance the understanding of the content of foreign law and speed up 
court proceedings. 

2.  STUDY ON APPLICATION OF FOREIGN LAW 

The issue of the application of foreign law is of horizontal nature and the study carried out on 
behalf of the Commission therefore had a broader scope than merely the law applicable to non-
contractual obligations. Nevertheless, the study on application of foreign law was requested by 
Art. 30(1)(i) of Rome II. The results of the study conducted in line with this requirement are 
summarised below.  

The Study on application of foreign law was concluded and published in July 2011. It covers 
the state of play as to 2011. As detailed in Section 1, the topic of application of foreign law was 
re-examined on several occasions after the completion of this study. For instance, the results of 
the study have been updated with the information received from the Member States who replied 
to the 2023 Questionnaire. Information was also collected during the meeting of the European 
Judicial Network in civil and commercial matters in 2023. 

According to the legal part of the study, there are significant differences among the Member 
States' treatment of foreign law. Since there are no EU rules prescribing how this should be 
done, the harmonised conflict of laws rules receive the same treatment as national conflict of 
law rules. This  may be  problematic, particularly in  case of rules aimed  at  giving priority to 
mandatory rules for the protection of certain weaker parties (such as consumers or employees); 

17 

 
the objective of such rules could be frustrated by the non-mandatory application of choice of 
law rules. In addition, in situations where the free circulation of judgments is closely linked to 
the application of harmonised conflict rules, such as in matters of maintenance obligations and 
wills and successions, the non-mandatory application of the conflict rules may undermine the 
mutual trust in foreign judgments.  

As  to  the  treatment  of  foreign  law,  around  one  third  of  the  respondents  openly  indicated 
(frequently  or  sometimes)  avoiding  the  application  of  foreign  law.  The  main  reason  is  the 
irregular  access  to  foreign  law.  Other  reasons  are  the  fear  of  delay  in  or  increased  costs  of 
proceedings,  choice  of  the  parties,  or  the  advice  of  counsel  not  to  resort  to  foreign  law. 
Improving access to foreign law may therefore lead to an increased willingness to apply foreign 
law.  

As regards the means used to ascertain the content of foreign law, official sources available on 
the internet are used most frequently. This is followed by national sources containing foreign 
law (libraries, databases). The third method of ascertaining foreign law is experts and material 
transmitted by foreign colleagues, which is probably the most reliable but which is often costly. 
The  key  measures  of  international  cooperation  (diplomatic  channels,  the  European  Judicial 
Network  in  civil  and  commercial  matters  and  the  European  Convention  on  Information  on 
Foreign Law) are not widely used by a majority of the respondents.  

2.1. Recommendation of the Study on the Application of Foreign Law 

The  study  contains  recommendations  for  measures,  both  practical  and  normative,  which  – 
according to the view of the authors of the study – could improve the situation. Among others 
it is suggested that the role and visibility of EU-wide professional networks be strengthened; 
and that means be developed by which detailed and reliable information about the exact content 
of foreign law, as applied in practice, can be made available to legal professionals free of charge 
or at limited cost. The study also assumes that the access to content of foreign law would be 
enhanced if national rules of Member States were promulgated in at least one of the EU’s three 
working  languages.  Compulsory  courses  on  foreign  law  in  the  education  and  training 
programmes are seen by the study as an intrinsic additional element. Finally, the study considers 
that a legislative Union instrument could strengthen the Union acquis. The scope of such an 
instrument  could  be limited to  the harmonised  conflict  rules  and the content of the national 
law(s) which they designate. The instrument  could,  the study suggests, clarify, among  other 
matters, in situations where a Union law instrument permits the parties to make a choice of law, 
to what extent a tacit choice in favour of the law of the forum may be made simply by none of 
the parties pleading the application of a foreign law. In the absence of a pre-trial choice of law 
or if no choice of lex fori is allowed by the relevant instrument, the study recommends that 
courts should be able to raise on its own motion the issue of the application of foreign law with 
the parties and invite them to make submissions on the point. As to the means of establishing 
the content of applicable foreign law, the study recommends retention of the principle of free 
choice of methods of proof and of the freedom of Member States to formulate national rules of 
evidence. 

3.  STUDY ON ROAD TRAFFIC ACCIDENTS  

In 2008, a study on compensation of victims of cross-border traffic accidents (“Study on road 
traffic accidents”) was carried out on behalf of the Commission. The results of this study have 
been  updated  with  the  information  received  from  Member  States  that  replied  to  the  2023 
Questionnaire and the results of the discussion held  at the meeting of the European Judicial 
Network in civil and commercial matters in 2023. 

18 

 
The study showed that there are important differences in national laws as regards compensation 
levels for victims of traffic accidents in a Member State other than the Member State of their 
habitual residence. These different legal regimes mean different approaches to the calculation 
of compensation for damages caused to victims of cross-border traffic accidents.  

In addition, the study concluded that victims might also  face difficulties  with  respect  to  the 
time-limits for claiming compensation. There may be cases where the differences in Member 
States’ laws concerning limitation periods lead to a rejection of a claim based on the expiry of 
a limitation period. However, these cases are relatively rare and the complexity of the limitation 
periods in Member States affects equally foreign and resident victims. The study identified and 
assessed  several  policy  options  for  improving  the  situation47.  It  concluded  that  the  most 
appropriate solutions would be those that do not lead to overhauling the whole legal framework 
of Member States. Targeted solutions would better meet the needs in this case, in particular 
non-legislative means like provision of information.  

4.  STUDY ON PRIVACY  

In line with Article 30(2) of Rome II, 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 (‘Study on privacy’) was commissioned by the European Commission.  

The Study on privacy was concluded and published in May 2009. It covers the state of play as 
to 2008. 

4.1 Mapping of the legal situation in Member States  

The Study  on privacy noted that the national  law applicable to  the right to  privacy and the 
freedom of expression varies considerably across the Member States’ laws. This was the case 
despite  the  existence  of  the  unifying  effect  of  the  Charter  of  Fundamental  Rights  of  the 
European Union and the European Convention on Human Rights and related case law.  

According to the Study on privacy, such divergence in Member States’ substantive laws fosters 
the importance of uniform conflict-of law rules applicable to privacy and defamation in cross-
border cases. Nevertheless, given the exclusion of non-contractual obligations arising out of 
violations  of  privacy  and  rights  relating  to  personality  from  Rome  II,  there  is  no  uniform 
applicable-law regime for these types of claims and there are as many rules of conflict at the 
EU as there are Member States.  

The national conflict-of-laws rules concerning privacy and rights relating to personality were 
also found remarkably divergent. Most Member States did not foresee special rules of conflict 
for privacy and/or related matters48. Most national laws included, within their general rules, the 
law where the event giving rise to the damage occurs (loci delicti commissi). In general, the 
connecting factor of the country in which the editor is established was not used. National laws 
in common law countries included the double actionability rule.  

While  most  national  laws  included  the  connecting  factor  of  loci  delicti  commissi  for 
determining the law applicable to the violations of privacy and personality rights, significant 
divergences  could  be  found  in  the  concrete  application  of  this  rule.  This  included  a  non-

47 See the list on p. 48 and following of the Study on road traffic accidents. 
48 With the exception of HU, LT, BE, BG, and RO. 

19 

 
 
homogenous appearance of exceptions to the general rule, based on the residence of common 
nationality of the implied parties, on the limited free will, on the usual residence of the damaged 
party or on the existence of closer bonds with the law of a certain state. Furthermore, in cases 
where  the  violation  of  privacy  happened  as  a  distance  delict  with  damages  occurring 
simultaneously in several states, the interpretation of the general rule of loci delicti commissi 
was also divergent.  

4.2 Recommendation of the Study on privacy 

Acknowledging that a consensus on an appropriate conflict-of-laws rule could not be found 
during the negotiations of Rome II, the Study on privacy explored ways forward to overcome 
the blocked situation.  

Notably, the results of the survey showed that the difficulty in reaching a common agreement 
on a unified rule of conflict did not mean that the best solution was to maintain the current 
situation. Vast majority of surveyed professionals in the field considered the intervention of the 
EU on the subject as necessary. 85% of those interviewed were in favour of the adoption of a 
unified rule of conflict in the EU. 

It was recommended that the hypothetical connecting factor for privacy-related claims should 
be  shaped  so  as  not  to  give  a  preference  to  the  protection  of  the  right  to  privacy  over  the 
protection  of  the  right  to  expression  and  of  information  or  vice  versa.  None  of  the  model 
conflict-of-law rules proposed by the authors of the Study on privacy had gained clear approval 
among the consulted experts; however, the most favoured was the one based on the general 
criterion of lex loci delicti commissi49. The vast majority of the surveyed experts was also in 
favour of allowing the damaged party to choose a law (based on the criteria of the place where 
the damage occurred or locus damni). Nevertheless, press and media associations positioned 
themselves clearly in favour of the criteria of the country in which the editor is established. The 
Study on privacy proposed that the connecting factor of lex loci damni could be a good starting 
point for the elaboration of a unified rule of conflict across the EU.  

However,  since  during  the  negotiations  of  Rome  II  a  consensus  was  not  reached  on  any 
connecting factor, the study also recommended first adopting a directive that would harmonise 
certain substantive rules on privacy. It was proposed that this minimal material harmonisation 
would aim to ensure a standard of adequate protection in all Member States to those damaged 
by mass media and would take the Charter of Fundamental Rights of the European Union and 
the European Convention on Human Rights as a reference. The Study on privacy then goes on 
to conclude that the adoption of a directive harmonising some aspects of material law would 
allow a future fruitful negotiation of a unified rule of conflict.  Nevertheless,  the Study also 
acknowledged that an EU intervention in the harmonisation of EU substantive rules on freedom 
of press/defamation may not be accepted by Member States, as per the limited competences of 
the EU in this area.

49 The total amount of favourable feedback for this connecting factor was only 41.4% of the received answers. 
However, if answers given by press and media associations were excluded, the support for this criterion would 
have been 82%.  

20 

 
 
SECTION 3 - QUESTIONNAIRE CIRCULATED TO THE MEMBER 
STATES (‘2023 QUESTIONNAIRE’) 

In September 2023, the European Commission circulated to Member States to the European 
Union a questionnaire on the application of the Rome II Regulation (‘2023 Questionnaire’).  

The 2023 Questionnaire follows up on an earlier consultation of Member States in 201250 and 
on the 2021 Study which assessed the practical experience and problems of interpretation in 
relation to the Rome II Regulation for the period of 2010 to 2020. The 2023 Questionnaire was 
circulated to Member States shortly before the elaboration of this application report to ensure 
that the application report is based on most up-to-date information. 

The questionnaire was divided into several parts: 

•  The first part contained questions on issues related to the application of the Regulation 
in general, such as whether Rome II works well, whether there are any problems with 
the application and what the most important cases involving the application of Rome II 
are. 

•  The second part contained questions relating to specific articles of Rome II.  

•  The third part focused on the application of Rome II in the context of 4 specific areas - 
Artificial  Intelligence,  Business  and  Human  Rights,  Violation  of  privacy  and 
personality rights and Collective Redress.  

•  A final question invited respondents to make any other comments or suggestions they 

consider appropriate concerning Rome II.  

The Commission received replies from 18 Member States. 

50 In response to this 2012 Questionnaire, the Commission received replies from 16 MS. Many of the replies at 
the time pointed to the lack of relevant case law and experience with the application of Rome II. This could be 
explained by the fact that Rome II had been in force for less than four years then. In general, the public authorities 
were of the opinion that Rome II had been working well and without particular problems or there had been no 
indications that the application of the Regulation caused considerable difficulties. Accordingly, a clear majority 
of the public authorities did not suggest any changes to Rome II. They were of the opinion that, due to the short 
period of time that Rome II had been in force and the insignificant number of cases in which the provision has 
been applied to that date, it was difficult and premature to suggest any further improvements or amendments. 

21 

 
 
 
 
 
 
 
SECTION 4 - RELEVANT CASE LAW  

To date, the CJEU has rendered 11 judgments interpreting the Rome II Regulation. In addition, other CJEU decisions, especially those regarding the Rome I 
and Brussels Ia Regulations (or its predecessors), may also be relevant for interpreting and applying Rome II. 

•  CJEU rulings on Rome II in chronological order 

Short name 
of the case 
Homawoo  

Prüller-Frey 

Lazar 

ERGO  

Full name of the case  Relates to 

Issue at hand 

Outcome of the case 

and 

Judgment  of  the  Court  of 
17  November  2011,  Deo 
Antoine  Homawoo  v  GMF 
Assurances SA, C-412/10,  
ECLI:EU:C:2011:747. 
Judgment of the Court of 9 
September  2015,  Eleonore 
Prüller-Frey  v  Norbert 
Axa 
Brodnig 
AG, 
Versicherung 
C-240/14, 
ECLI:EU:C:2015:567. 
Judgment  of  the  Court  of 
10 December 2015,  Florin 
v  Allianz  SpA, 
Lazar 
C-350/14, 
ECLI:EU:C:2015:802. 
Judgment  of  the  Court  of 
21 January 2016 
"ERGO Insurance" SE v "If 
P&C  Insurance"  AS  and 
"Gjensidige  Baltic"  AAS  v 

article 
Art.  31,  32 
of Rome II  

Art.  18  of 
Rome II  

Art.  4(1)  of 
Rome II 

The temporal application of 
Rome II. 

Rome II applies to non-contractual obligations where the event giving rise to 
the damage took place after 11 January 2009.51 

Possibility  for  a  victim  of 
an  air  traffic  accident  to 
bring a direct action against 
the  civil-liability  insurer  if 
this  is  provided  for  by 
national law. 

A person who has suffered damage is entitled to bring a direct action against 
the insurer of the person liable to provide compensation, where such an action 
is  provided  for  by  the  law  applicable  to  the  non-contractual  obligation, 
regardless of the provision made by the law that the parties have chosen as the 
law applicable to the insurance contract. 

of 

Determination 
the 
applicable  law  for  indirect 
traffic 
damages 
accidents. 

from 

Damage related to the death of a person in an accident which took place in the 
Member State of the court seised, which was sustained by the close relatives 
of  that  person  who  reside  in  another  Member  State,  must  be  classified  as 
‘indirect consequences’ of that accident.52 

Art. 1, 2, 19 
of Rome II 

Determination  of  what 
‘contractual’ 
constitutes 
‘non-contractual’ 
and 
case 
a 
obligation 

in 

The law applicable to an action for indemnity between the insurer of a tractor 
unit, which has compensated the victims of an accident caused by the driver of 
that vehicle, against the insurer of the trailer coupled to it at the time of that 
accident, is to be determined in accordance with Article 7 of Rome I if the rules 
of liability in tort, delict and quasi-delict applicable to that accident by virtue 

51 In contrast, the date on which the case was submitted to the court is not relevant. 
52 This means that claims for compensation of such indirect damage are governed by the law of the country in which the accident happened and the direct damage materialized.  

22 

 
 
 
 
involving a traffic accident 
and an insurance contract 

of Article 4 et seq. of Rome II provide for an apportionment of the obligation 
to compensate for the damage. 53 

VKI v Amazon 

"PZU  Lietuva"  UAB  DK, 
Joined Cases C-359/14 and 
C-475/14, 
ECLI:EU:C:2016:40. 
Judgment  of  the  Court  of 
28 July 2016, 
Verein 
für 
Konsumenteninformation v 
Amazon  EU  Sàrl,  C-
191/15, 
ECLI:EU:C:2016:612. 

Art. 
1(3) 
and  6(1)  of 
Rome II 

Nintendo 

Art.  8(2)  of 
Rome II 

September 

Judgment  of  the  Court  of 
27 
2017, 
Nintendo Co. Ltd v BigBen 
Interactive  GmbH  and 
BigBen 
Interactive  SA, 
joined  cases C-24/16 and 
C-25/16, 
ECLI:EU:C:2017:724. 

Determination 
of 
applicable  law  and  what 
‘contractual’ 
constitutes 
‘non-contractual’ 
and 
obligation 
case 
a 
in 
involving  an  injunction  to 
prevent use of certain terms 
in 
conditions 
addressed 
to  consumers, 
incl. choice of law 

general 

Application  of  Rome  II  in 
cases where EU regulations 
on  unitary  community  EP 
rights do not govern certain 
aspects 
the 
related 
infringement of IP rights.  

to 

Da Silva 
Martins 

January 

Judgment  of  the  Court  of 
2019, 
31 
Agostinho da Silva Martins 
v  Dekra  Claims  Services 

Art.  16,  27 
of Rome II 

Determination 
of 
applicable  law  regarding 
limitation 
periods, 
Overriding 
mandatory 
provisions 

Without prejudice to Article 1(3) of Rome I and Rome II Regulations, the law 
applicable  to  an  action  for  an  injunction  within  the  meaning  of  Directive 
2009/22/EC on injunctions for the protection of consumers’ interests directed 
against  the  use  of  allegedly  unfair  contractual  terms  by  an  undertaking 
established  in  a  Member  State  which  concludes  contracts  in  the  course  of 
electronic  commerce  with  consumers  resident  in  other  Member  States,  in 
particular in the State of the court seised, must be determined in accordance 
with  Article  6(1)  of  Rome  II Regulation,  whereas  the  law  applicable  to  the 
assessment  of  a  particular  contractual  term  must  always  be  determined 
pursuant  to  Rome  I  Regulation,  whether  that  assessment  is  made  in  an 
individual action or in a collective action.54 
Article 8(2) of Rome II Regulation  must be interpreted as meaning that the 
‘country in which the act of infringement was committed’ within the meaning 
of that provision refers to the country where the event giving rise to the damage 
occurred55.  
Where the same defendant is accused of various acts of infringement in various 
Member States, the correct approach for identifying the event giving rise to the 
damage  is  not  to  refer  to  each  alleged  act  of  infringement,  but  to  make  an 
overall assessment of that defendant’s conduct in order to determine the place 
where  the  initial  act  of  infringement  at  the  origin  of  that  conduct  was 
committed or threatened by it. 
1) A national provision, which provides that the limitation period for actions 
seeking compensation for damage resulting from an accident is three years, 
cannot  be  considered  to  be  an  overriding  mandatory  provision  within  the 
meaning  of  Article  16  of  Rome  II,  unless,  it  is  of  such  importance  in  the 
national legal order (based on the wording, general scheme, objectives and the 

53 The compensation paid to the victims by the insurer of a tractor unit which had a trailer attached arose from the insurance contract, the obligation is thus a ‘contractual’ one. 
‘Contractual obligation’ means an obligation which arose from a voluntary consent. In contrast, subrogation against the insurer of the trailer is non-contractual.  
54 In determining what law should apply to a collective action for an injunction seeking to prohibit the use of allegedly unfair terms contained in the general terms and conditions 
of an electronic marketplace, the CJEU ruled that while the concrete contractual term itself should be assessed under Rome I Regulation, the law applicable to an action for an 
injunction for the protection of consumers’ interests directed against the use of allegedly unfair contractual terms should be determined under the Rome II Regulation. 
55 As opposed to countries where the damage occurred.  

23 

 
 
 
Portugal  SA,  C-149/18, 
ECLI:EU:C:2019:84. 

context in which that provision was adopted) that it justifies a departure from 
the law applicable under Rome II. 

Acacia 

Judgment of the Court of 3 
March 2022 
Acacia  Srl  v  Bayerische 
Motoren  Werke  AG,  C-
421/20, 
ECLI:EU:C:2022:152. 

Art.  8(2)  of 
Rome II 

Application  of  Rome  II  in 
cases where EU regulations 
on  unitary  community  EP 
rights do not govern certain 
aspects 
the 
related 
infringement of IP rights 

to 

BMA 
Nederland 

Judgment  of  the  Court  of 
10 March 2022, ZK v BMA 
Braunschweigische 
Maschinenbauanstalt  AG, 
C-498/20, 
ECLI:EU:C:2022:173. 

Art. 1(2)(d), 
Art.  4  of 
Rome II 

FGTI 

Judgment of the Court of 
17 May 2023, Fonds de 
Garantie des Victimes des 
Actes de Terrorisme et 

4(1), 
Art. 
15(h) 
and 
19 of Rome 
II 

Application  of  Rome  II  to 
claims  of  creditors  of  a 
bankrupt company towards 
a  grandparent  company  of 
that  company  that  rests  on 
the 
the 
grandparent company for a 
breach of duty of care. 
Determination  of  the  law 
application 
time 
limitations. 

liability 

for 

of 

2) Article 28 of Directive 2009/103/EC does not constitute a provision of EU 
law  which  lays  down  a  conflict-of-law  rule  relating  to  non-contractual 
obligations, within the meaning of Article 27 of Rome II. 
The  Community  design  courts  before  which  an  action  for  infringement 
pursuant to Article 82(5) of Regulation No 6/2002 is brought concerning acts 
of infringement committed or threatened within a single Member State must 
examine  the  claims  supplementary  to  that  action,  seeking  the  award  of 
damages,  the  submission  of  information,  documents  and  accounts  and  the 
handing over of the infringing products with a view to their being destroyed, 
on  the  basis  of  the  law  of  the  Member  State  in  which  the  acts  allegedly 
infringing the Community design relied upon are committed or are threatened, 
which is the same, in the circumstances of an action brought pursuant to that 
Article  82(5),  as  the  law  of  the  Member  State  in  which  those  courts  are 
situated.56 

The law applicable to an obligation to pay compensation by virtue of the duty 
of  care  of  the  grandparent  company  of  a  company  declared  bankrupt  is,  in 
principle, that of the country in which the latter is established, although the 
pre-existence of a financing agreement between those two companies, which 
includes a choice of court, is a circumstance capable of establishing manifestly 
closer connections with another country, for the purposes of Article 4(3) Rome 
II.57 

The law which governs the action of a third party subrogated to the rights of 
an  injured  party  against  the  person  who  caused  the  damage  and  which 
determines, in particular, the rules on limitation in respect of that action is, in 
principle, that of the country in which that damage occurs.58 

56 As opposed to the situation in the Nintendo case, in the proceedings at hand the court only rules on a possible infringement of the IP right in its territory; therefore, the ‘law 
of the country in which the act of infringement was committed’ in Art. 8(2) Rome II should be interpreted as the law of the Member State where the court is located. Any 
possible infringements in other countries that are not subject of the action should not be decisive in designating the applicable law. 
57 These claims are not excluded from Rome II by virtue of Art. 1(2)(d) as the duty of care constitutes an erga omnes obligation, rather than an intra-organisational aspect. 
58 This law determines, in particular, the rules on limitation in respect of that action. 

24 

 
 
 
 
 
d’Autres Infractions 
(FGTI) v Victoria Seguros 
SA, C‑264/22, 
ECLI:EU:C:2023:417. 
Judgment of the Court of 5 
September 2024, E.N.I., 
Y.K.I. v HUK-COBURG-
Allgemeine Versicherung 
AG, C-86/23, 
ECLI:EU:C:2024:68. 

HUK-
COBURG-
Allgemeine 
Versicherung II 

Art.  16  of 
Rome II 

Overriding 
provisions. 

mandatory 

Wunner 

Request for a preliminary 
ruling, case C-77/24, 
pending. 

Art.  1(2)(d) 
Art. 
and 
4(1) 
of 
Rome II 

Application  of  Rome  II  to 
claims for damages against 
an  officer  of  a  company 
based  on  tortious  liability 
for  infringement  by  the 
company 
rules 
concerning gaming. 

of 

25 

A  national  provision  under  which  compensation  for  non-material  damage 
suffered by the close family members of a person who died in a road traffic 
accident is determined by the court on the basis of fairness cannot be regarded 
as  an  ‘overriding  mandatory  provision’,  within  the  meaning  of  that  article, 
unless, where the legal situation in question has sufficiently close links with 
the  Member  State  of  the  forum,  the  court  before  which  the  case  has  been 
brought  finds,  on  the  basis  of  a  detailed  analysis  of  the  wording,  general 
scheme,  objectives  and  the  context  in  which  that  national  provision  was 
adopted,  that  respect  for  it  is  regarded  as  crucial  in  the  legal  order  of  the 
Member State, on the ground that it pursues an objective of safeguarding an 
essential public interest that cannot be achieved by the application of the law 
designated pursuant to Article 4 of that regulation. 
Question referred by national court to the CJEU: 
‘Must  Article  1(2)(d)  of  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 (‘the Rome II Regulation’) be interpreted as meaning 
that  it  also  applies  to  claims  for  damages  against  an  officer  of  a  company 
which a creditor of the company bases on tortious liability for infringement of 
protective provisions (such as provisions of legislation on games of chance) 
by that officer?’ 

If this question is answered in the negative:  
Must Article 4(1) of the abovementioned regulation be interpreted as meaning 
that, in the event of an action for damages based on tortious liability in respect 
of gaming losses suffered which is brought against an officer of a company 
offering online games of chance in Austria without a licence, the place where 
the damage occurred is determined by  

(a) the place from which the player effects credit transfers from his or her 
bank account to the player account maintained by the company,  
(b)  the  place  where  the  company  maintains  the  player  account  in  which 
deposits from the player, winnings, losses and bonuses are entered,  
(c)  the  place  from  which  the  player  places  bets  via  that  player  account 
which ultimately result in a loss,  

 
 
 
 
 
(d)  the  player’s  place  of  residence  as  the  location  of  his or  her  claim  to 
payment of the credit balance in his or her player account,  
(e) the location of the player’s main assets? 

•  Other CJEU rulings mentioned in the Rome II application report in chronological order 

Short name of 
the case 
eDate / Martinez  

Kolassa  

VEB v BP 

Gtflix TV 

Full name of the 
case 
Judgment of the Court 
of 25 October 2011, 
eDate Advertising 
GmbH and Others v X 
and Société MGN 
LIMITED, C-509/09, 
ECLI:EU:C:2011:685.  

and Martinez and 
Martinez, C-161/10. 

Judgment of the Court 
of 28 January 2015, 
Harald Kolassa v 
Barclays Bank plc, C-
375/13, 
ECLI:EU:C:2015:37. 
Judgment of the Court 
of 12 May 2021, 
Vereniging van 
Effectenbezitters v BP 
plc, C-709/19, 
ECLI:EU:C:2021:377. 

Judgment of the Court 
of 21 December 2021, 
Gtflix Tv v DR, 
C-251/20, 
ECLI:EU:C:2021:1036. 

Relates to 
the article 
Art. 5(3) of the 
Brussels I 
Regulation 

Issue at hand 

Outcome of the case 

Jurisdiction  in  cases 
of  defamation  in  an 
online environment 

In the event of an alleged infringement of personality rights by means of content 
placed online on an internet website, the person who  considers that his rights 
have been infringed has the option of bringing an action for liability, in respect 
of all the damage caused, either before the courts of the Member State in which 
the publisher of that content is established or before the courts of the Member 
State in which the centre of his interests is based. That person may also, instead 
of an action for liability in respect of all the damage caused, bring his action 
before the courts of each Member State in the territory of which content placed 
online is or has been accessible. Those courts have jurisdiction only in respect 
of the damage caused in the territory of the Member State of the court seised. 

Art. 5(1), 5(3) 
and 15(1) of the 
Brussels I 
Regulation 

Jurisdiction in cases 
of financial market 
torts  

In case of a tort caused by providing incorrect information in a certificate 
prospectus the place of investor’s residence is the place where the damage has 
occurred if the investor suffered loss on a bank account in this country. 

Art. 7(2) of the 
Brussels Ia 
Regulation 

Jurisdiction  in  cases 
of  financial  market 
torts 

Art. 7(2) of the 
Brussels Ia 
Regulation 

Jurisdiction  in  cases 
of  defamation  in  an 
online environment 

26 

Article 7(2) of the Brussels Ia Regulation must be interpreted as meaning that 
the direct occurrence in an investment account of purely financial loss resulting 
from  investment  decisions  taken  as  a  result  of  information  which  is  easily 
accessible  worldwide  but  inaccurate,  incomplete  or  misleading  from  an 
international  listed  company  does  not  allow  the  attribution  of  international 
jurisdiction, on the basis of the place of the occurrence of the damage, to a court 
of the Member State in which the bank or investment firm in which the account 
is  held  has  its  registered  office,  where  that  firm  was  not  subject  to  statutory 
reporting obligations in that Member State. 
Article 7(2)  of  Brussels  Ia  Regulation  must  be  interpreted  as  meaning  that  a 
person  who,  considering  that  his  or  her  rights  have  been  infringed  by  the 
dissemination of disparaging comments concerning him or her on the internet, 
seeks not only the rectification of the information and the removal of the content 
placed  online  concerning  him  or  her  but  also  compensation  for  the  damage 

 
 
 
 
 
WEAREONE.WORLD  Request for a 

preliminary ruling, case 
C 106/24, pending. 

Article 1(1) of 
the Rome 
Convention 1 
and Article 1(1) 
of the Rome I 
Regulation 

Notion of 
‘contractual 
obligation’ in 
relation to the 
ownership of 
copyright  

resulting  from  that  placement  may  claim,  before  the  courts  of  each  Member 
State in which those comments are or were accessible, compensation for the 
damage  suffered in the Member State of the court  seised, even though those 
courts do not have jurisdiction to rule on the application for rectification and 
removal. 
Question referred by national court to the CJEU: 
Should Article 1(1) of the Rome Convention 1 and Article 1(1) of the Rome I 
Regulation  2  be  interpreted  as  meaning  that  the  question  of  ownership  of 
copyright  in  a  work  created  in  performance  of  an  obligation  under  an 
employment or commission contract, that is, the question of who is the original 
owner and whether and to what extent that right is transferable to a subsequent 
owner, is covered by the concept of ‘contractual obligations’? 

27