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  COM(2025) 20 final  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) {SWD(2025) 9 final}  
 
 
Glossary  

Term  

1971 HCCH 
Convention 
2021 Study 

2023 
Questionnaire  

Anti-SLAPP 
Directive 

Brussels Ia 
Regulation 

CJEU 
EU 
GDPR 

MS 
Rome I 
Regulation 

Rome II 

Meaning or definition 
Convention of the Hague Conference on Private International Law of 4 May 1971 
on the Law Applicable to Traffic Accidents.  
Study  by  British  Institute  of  International  and  Comparative  Law  and  Civic 
Consulting on the Rome II Regulation (EC) No 864/2007 on the law applicable to 
non-contractual  obligations.  The  Study  assesses  the  practical  experience  and 
problems of interpretation in the application of Rome II for the period 2010-2020.  
See the summary in Section 2 of the staff working document accompanying this 
report (‘SWD’). 
Questionnaire that was circulated to the EU Member States in 2023 to collect up-
to-date information on the application of Rome II.  
See Section 3 of the SWD. 
Directive (EU) 2024/1069 of the European Parliament and of the Council of 11 
April  2024  on  protecting  persons  who  engage  in  public  participation  from 
manifestly  unfounded  claims  or  abusive  court  proceedings  (‘Strategic  lawsuits 
against public participation’), OJ L, 2024/1069, 16.4.2024. 
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 
12 December  2012  on  jurisdiction  and  the  recognition  and  enforcement  of 
judgments in civil and commercial matters (recast), OJ L 351, 20.12.2012, p. 1–
32.  
Court of Justice of the European Union. 
European Union. 
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 
April 2016 on the protection of natural persons with regard to the processing of 
personal data and on the free movement of such data, OJ L 119, 4.5.2016, p. 1–88. 
Member State(s) of the European Union. 
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 
17 June 2008 on the law applicable to contractual obligations (Rome I) OJ L 177, 
4.7.2008, p. 6–16. 

Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 
July 2007 on the law applicable to non-contractual obligations (Rome II) OJ L 199, 
31.7.2007, p. 40–49. 

SLAPP 

Strategic Lawsuit Against Public Participation. 

Study on 
application of 
foreign law 

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.  
See the summary in Section 2 of the SWD. 

Study on 
privacy  

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.  
See the summary in Section 2 of the SWD. 

Study on road 
traffic accidents 

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.  

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See the summary in Section 2 of the SWD. 

1. INTRODUCTION  

On  11  July  2007  the  European  Union  adopted  Regulation  (EC)  No  864/2007  on  the  law 
applicable to non-contractual obligations (‘Rome II’), harmonising the Member States' conflict 
of laws rules regarding non-contractual obligations. It entered into application on 11 January 
2009. 

Rome II establishes a legal  framework to  determine which national  substantive law  applies 
within the EU in cross-border disputes involving non-contractual obligations, in particular in 
cases of tort or delict. By providing uniform rules for conflicts of laws in the EU, Rome II 
enhances legal certainty, predictability and fairness in civil and commercial matters involving 
more  than  one  country.  Without  changing  the  Member  States’  substantive  rules  on  non-
contractual obligations, it ensures that the same substantive law is applicable irrespective of 
where in the EU an action is brought. These elements make Rome II a fundamental piece of 
the  EU’s  conflict  of  laws  legislation,  addressing  key  issues  that  arise  in  an  increasingly 
interconnected European context and ensuring that non-contractual disputes are handled with 
a high degree of coherence and consistency across the EU. 

This report presents the first general assessment of the application of the Regulation since 2009, 
drawing,  amongst  others,  upon  several  studies,  a  review  of  the  case  law  of  the  CJEU  and 
national courts, other consultations, and academic and other reports. The extended assessment 
period has enabled the Commission to collect sufficient experience with the application of the 
Regulation. The report also looks into a number of new and emerging issues such as artificial 
intelligence, an increasingly online environment and SLAPPs.  

According to the review clause of the Regulation, three specific studies were carried out1 on 
road traffic accidents (2009), on privacy and rights relating to personality (2009) and on the 
application of foreign law (2011).  

Besides these studies, the Commission assessed the practical experience with Rome II through 
questions addressed to Member States (‘MS’) and their courts and authorities. The first such 
collection of information in 2012 showed that Rome II generally worked well but that practical 
experience with its application and relevant case law was still limited at the time. The second 
collection  of  information  took  place  in  2023  (‘2023  Questionnaire’)2,  including  specific 
questions on the areas already covered by the previous studies. Moreover, the European Judicial 
Network in civil and commercial matters met twice to discuss the operation of Rome II in 2012 
and 2023.  

Finally, as part of the long-term monitoring of the application of the Regulation and in view of 
the preparation of this report, the Commission commissioned an external study in 2021 to map 
the application of Rome II from 2010 to 2020 (‘2021 Study’). 

This report builds on these sources to highlight the main findings about the application of Rome 
II. Additional information, including more detailed explanations going beyond this report, case 

1 See Section 2 of the SWD for details on the studies. 
2 See Section 3 of the SWD for details about the questionnaire. 

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law and sources used are included in the staff working document accompanying  this report 
(‘SWD’). 

2. GENERAL OVERVIEW OF THE APPLICATION OF ROME II  

2.1 Scope  

Rome  II  establishes  rules  on  the  law  applicable  to  non-contractual  obligations  that  have 
arisen or are likely to arise in cross-border civil and commercial matters. These include 
important  areas  such  as  liability  in  cases  of  traffic  accidents,  intellectual  property 
infringements, unfair competition and acts restricting free competition, environmental damage 
or product liability.  

The  provisions  defining  the  material  scope  of  Rome  II  have  not  posed  major  problems  in 
practice3.  However,  despite  the  CJEU  case  law  clarifying  the  term  ‘non-contractual 
obligations’4, there are still areas where, in the absence of case law, uncertainties persist about 
whether  certain  claims  are  contractual  or  non-contractual,  such  as  the  protective  effects  of 
certain contracts for third parties and obligations resulting from the offering or announcement 
of  a  promotional  prize.  In  addition,  the interpretation  of  specific  exclusions  from  the  scope 
(particularly those in Art. 1(2) (c) and (d)5) is still subject to debate. However, it is generally 
agreed that these challenges in determining the scope of Rome II can be solved through future 
case law.  

On the other hand, the exclusion from the scope of ‘non-contractual obligations arising out of 
violations  of  privacy  and  rights  relating  to  personality,  including  defamation’  remains  a 
contentious issue among experts where legislative action has been advocated6.  

2.2 Rules on the law applicable to torts/delicts 

Under Rome II, the default rule is that the law applicable to a non-contractual obligation arising 
out of tort or delict is the law of the country in which the damage occurred (Art. 4(1) also 
called  lex  loci  damni),  with  specific  rules  in Art.  4(2)  (law  of  country  of  common  habitual 
residence of victim and tortfeasor) and (3) (manifestly closer connection), the latter providing 
a  flexibility  mechanism  to  address  cases  where  the  general  rule  may  not  lead  to  the  most 
appropriate legal outcome. This framework ensures legal certainty and predictability as to the 
law  applicable  in  most  cases.  The  application  of  the  general  rule  has  been  largely 
unproblematic, though some questions remain regarding the application of the rule to indirect 
victims, multi-party torts, and the localisation of damage in cases of purely financial/economic 
losses, especially in cases of financial market torts7.  

Rome II also provides for several specific rules tailored to situations where the general rule 
may not be sufficient and appropriate. These include provisions on product liability (Art. 5), 
unfair competition and acts restricting free competition (Art. 6), environmental damage (Art. 
7), infringements of intellectual property (‘IP’) rights (Art. 8), and industrial action (Art. 9). 
While those tailored rules seek to provide solutions to limitations of the general rule, defining 

3 See Section 1 of the SWD on residual uncertainties about the characterisation of certain specific claims. 
4 See Section 4 of the SWD for case law. 
5 See Section 4 of the SWD, case Wunner, pending. 
6 See Chapter 3.1 for details. 
7 For financial market torts, see Chapter 3.3. For other details, see Section 1 of the SWD. 

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their scope may also cause difficulties. For instance, interpretation issues persist regarding the 
interpretation of the term ‘product’ in relation to product liability8 and regarding the IP rights 
covered by Art. 89.  

More generally, problems were reported where the connecting factors lead to the application 
of several different laws to a single dispute, especially as concerns copyright, making it very 
complicated for courts to apply foreign laws with a sufficient level of knowledge, increasing 
transaction costs, such as translation and expertise, and ultimately leading to uncertainties on 
the  outcome  of  the  proceedings10.  This  phenomenon,  which  may  require  the  simultaneous 
application  of  a  complex  ‘mosaic’  of  applicable  laws  to  a  single  dispute,  materialises  in 
particular  with  respect  to  torts  committed  online,  where  (i)  the  damage  can  occur 
simultaneously in a number of countries or where (ii) a single action may infringe IP rights, in 
particular copyright, in more than one country. Similar problems may arise for instance in cases 
of collective redress or mass accidents. Several suggestions exist on how to tackle the problem 
of  simultaneous  application  of  multiple  laws  in  particular  in  the  area  of  infringements  of 
copyright. As detailed in Section 1 of the SWD, some of these suggestions include legislative 
amendments to Rome II11.   

2.3 Other rules of Rome II 

Rome II also includes rules on the law applicable in cases of ‘unjust enrichment, negotiorum 
gestio and culpa in contrahendo’ (Chapter III). Chapter IV then provides for the possibility that 
parties agree to submit non-contractual obligations to the law of their choice. The application 
of these provisions is generally not problematic, with few issues reported12.  

2.4 Common rules, other provisions and final provisions 

The Chapters  of Rome II on common rules, other provisions and final  provisions generally 
function  without  major  issues.  Nevertheless,  the  relationship  with  existing  international 
conventions  and  other  instruments,  in  particular  the  1971  HCCH  Convention  on  the  Law 
Applicable to Traffic Accidents, has led to some practical difficulties related to the existence 
of two conflict of laws regimes for claims arising from cross-border road traffic accidents, as 
elaborated in Section 1 of the SWD.  

3. APPLICATION OF ROME II IN SELECTED AREAS  

3.1 Privacy, rights relating to personality, including defamation and SLAPP  

Non-contractual  obligations  arising  out  of  violations  of  privacy  and  rights  relating  to 
personality, including defamation, were excluded from the scope of Rome II as no agreement 
was reached in the legislative negotiations on an appropriate connecting factor for this area of 

8 See Section 1 para 1.2.2 of the SWD. 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. 
9 Despite the non-exhaustive list of IP rights in recital 26. 
10 Study on Cross-border Enforcement of Intellectual Property Rights in the EU. 2021, p. 57, 58 
11 E.g. to apply the closest connection with the infringement as the relevant connecting factor or to allow, contrary 
to current Art. 8(3) of Rome II, the choice of applicable law. 
12 For details, see Section 1 of the SWD. 

4 

 
 
 
torts. Privacy-related torts necessitate balancing out conflicting fundamental rights to freedom 
of  expression  and  information  on  the  one  hand  and  to  privacy  and  reputation  on  the  other. 
Differences  exist  in  how  individual  MS  strike  this  balance  in  their  legal  and  constitutional 
systems.  These  differences  in  legislative  approaches13  and  the  critical  role  that  freedom  of 
expression plays in  democratic  societies were some of the driving factors  behind excluding 
privacy claims from the scope of Rome II in the absence of a consensus on a suitable connecting 
factor. 

As a result, the applicable law in such cases continues to be determined by the national conflict 
rules of each MS with significant divergences between those rules. The existence of this legal 
patchwork makes it difficult to predict what law will be applicable in cases of cross-border 
privacy violations and thus what result the dispute will have.  

The criticism of excluding this important group of claims from the scope of Rome II seems to 
be generally shared. For instance, professionals and stakeholders surveyed in the context of the 
Study  on  privacy  and  the  2021  Study  generally  found  the  current  situation  unsatisfactory. 
Moreover, in their 2023 replies, most MS were of the view that conflict-of-law rules in this 
area should better be harmonized. There did not seem to be any rigid positions excluding the 
future  coverage  of  these  torts  by  Rome  II;  however,  doubts  were  expressed  by  some  MS 
whether  an  acceptable  uniform  connecting  factor  can  be  found  adequately  balancing  the 
conflicting rights and interests.  

Several proposals have been made on a suitable connecting factor since the adoption of Rome 
II. In addition, other work was also carried out on the topic of privacy and personality rights. 
This includes: 

•  2008 Study on privacy and follow-up by the European Parliament: The Study on 
privacy, detailed in Section 2 of the SWD, mapped the Member States’ rules relating to 
privacy and identified possible solutions to the difficulties emerging in the absence of 
a rule in Rome II. It also showed an overwhelming support in favour of a harmonisation 
of the law applicable to defamation.  

Following  the  publication  of  the  2008  Study,  the  European  Parliament  adopted  a 
resolution in 2012 where it proposed to complement Rome II with a conflict of laws 
rule on privacy and rights relating to personality that would be based on a qualified lex 
loci damni14.  

•  GDPR: Regulation (EU) 2016/679 (‘GDPR’), applicable to the protection of personal 
data  of  natural  persons  in  the  EU  since  2018,  harmonises  certain  aspects  of  private 
enforcement of data protection law in Articles 79 and 8215. These provisions contain 
substantive  rules  on  the  right  to  an  effective  judicial  remedy  against  controllers  and 

13 In particular the UK’s legislative approach considerably favouring the claimant in defamation cases was at the 
time markedly distinct from that of most other MS. See the Study on privacy.  
14 More specifically, the law of the country in which the most significant element(s) of the loss or damage occurred 
should be applied pursuant to the resolution. However, if the defendant could not have reasonably foreseen the 
substantial consequences of their act occurring in that country, the law of the country in which the defendant is 
habitually resident would be applied. 
15 The GDPR is limited to the processing of personal data and does not cover other violations of the right to 
privacy.  

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processors and the right to claim compensation against data controllers and processors 
for damages that individuals have suffered as a consequence of breaches of the GDPR.  

Should a rule on law applicable to privacy and personality rights be included in Rome 
II, the interplay with the GDPR will need to be thoroughly considered. While on aspects 
of  the  right  to  compensation  that  have  been  uniformly  regulated  in  the  GDPR  the 
designation  of  the  law  of  one  rather  than  another  Member  State  as  applicable  law 
pursuant to Rome II would be without practical consequence, that would not be the case 
for aspects of that right that have not been addressed in the GDPR16. 

•  Brussels  Ia  Regulation  and  related  case  law:  International  jurisdiction  rules 
concerning  violations  of  privacy  and  personality  rights  and  defamation  claims  are 
covered  by  the  Brussels  Ia  Regulation.  In  a  series  of  preliminary  rulings  over  an 
extended  period  of  time,  the  CJEU  had  the  opportunity  to  clarify  these  rules,  in 
particular  the  notion  of  the  place  where  the  damage  materialises  in  the  event  of 
defamation both in paper publications and on the internet17. Accordingly, it is possible 
under the Brussels Ia Regulation to bring proceedings for damages for defamation in 
several jurisdictions at the discretion of the claimant18.  

In practice, given both the choice of available jurisdictions and the absence of a uniform 
applicable law rule in the EU, claimants often choose to bring proceedings in the forum 
having  the  most  favourable  applicable  law.  In  some  cases19,  this  forum  may  have  a 
rather marginal connection with the dispute at hand. This may create a fertile ground 
for strategies of judicial harassment, such as in the context of SLAPPs.  

•  SLAPPs  (‘Strategic  lawsuits  against  public  participation’)  are  court  proceedings  – 
typically defamation or privacy claims - which are not brought to genuinely assert or 
exercise  a  right,  but  have  as  their  main  purpose  the  prevention,  restriction  or 
penalisation of public participation. Indications of such a purpose include for example 
the excessive nature of the claim, the initiation of multiple proceedings or the use in 
bad  faith  of  procedural  tactics.  Where  SLAPPs  have  a  cross-border  dimension, 
claimants may initiate proceedings in a jurisdiction that they perceive to be favourable 
or  where  costs  inflicted  on  the  defendant  are  particularly  high,  or  even  in  multiple 
jurisdictions.  

16 For example, in the absence of rules on the quantification of damages in the GDPR, it is for the legal system of 
each MS to prescribe such rules, subject to compliance with the principles of equivalence and effectiveness. Of 
course, the applicable law of a MS pursuant to Rome II may also have practical consequences regarding claims 
concerning non-personal data and thus not regulated by the GDPR, e.g. claims based on the processing of data of 
deceased persons or legal persons. 
17 See p.113, 114 in the 2023 Study on the application of the Brussels Ia Regulation for details of the case law. 
18 In addition to the general forum of the defendant’s domicile, the ‘place where the damage materialised’ includes 
the place where the victim has their ‘centre of interests’ as a forum where the entire damage can be claimed, albeit 
only in the context of a defamation online, as well as each MS where the defamatory content is accessible, but 
only with respect to the damage caused in that MS. 
19 E.g. case Gtflix TV. See Section 4 of the SWD. 

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Due to the growth of this phenomenon in the EU and the risk it implies for freedom of 
expression and free media by stifling public debate, the EU adopted the Anti-SLAPP 
Directive  in  2024  to  ensure  adequate  procedural  safeguards  against  such  abusive 
litigation.  During  the  negotiations  the  European  Parliament  proposed  to  include  a 
special  conflict  of  laws  rule  but  in  the  end  the  co-legislators  agreed  that  any  future 
review of Rome II should assess the SLAPP-specific aspects of the rules on applicable 
law.  

The recent SLAPP phenomenon specifically underscores that the problems posed by 
the multiplication of available jurisdictions and by the absence of a conflict of laws rule 
in defamation and privacy cases can be exploited in an abusive manner to hinder public 
participation.  However,  these  problems  are  common  to  all  defamation  and  privacy 
cases. Therefore, if a conflict-of-law rule  were  added to  Rome II,  it should  possibly 
apply  generally  to  cases  of  violations  of  privacy  and  rights  relating  to  personality, 
irrespective  of  whether  they  are  abusive.  Member  States  consulted  on  this  aspect 
likewise agreed that any possible rule in Rome II should be a general one20. 

In conclusion, there  seems  to  be  a critical  mass  of arguments  to  consider an amendment  to 
Rome  II  that  includes  non-contractual  obligations  arising  out  of  violations  of  privacy  and 
rights  relating  to  personality, including  defamation, within the scope.  In  the context of this 
consideration,  the  interplay  with  the  Brussels  Ia  Regulation  and  suitable  options  for  an 
appropriate conflict-of-law rule have to be comprehensively assessed. 

3.2 Artificial intelligence (‘AI’) 

The future application of Rome II to cases concerning non-contractual obligations related to 
the use of AI will be influenced by the evolution of substantive legal systems in response to 
AI-related disputes. As more cases involving AI will come before the courts and technology 
advances, legal systems will need to adapt and develop frameworks to address the challenges 
posed  by  AI.  This  may  include  determining  liability,  establishing  standards  of  care,  and 
defining legal responsibilities in AI-related contexts. The ongoing development of technology 
and  the  legal  landscape  in  terms  of  substantive  rules  governing  the  use  of AI  will  shape 
questions concerning the application of Rome II to AI cases in the future21 .  

However, due to the still emerging nature of identifying approaches to cope with the intricacies 
related to the expanding use of AI, it is difficult to assess whether and to what extent specific 
rules may be needed in Rome II. Most MS in their input agreed that there was little practical 
experience  of  choice  of  law  problems  in  cases  involving  the  use  of AI  and  where  potential 

20  See  Section  3  of  the  SWD  on  the  2023  Questionnaire.  Several  MS  indicated  that  they  were  not  aware  of 
considerable difficulties for victims of SLAPPs in a cross-border context or stated that a uniform EU approach to 
conflict-of-law rules may not alleviate them. In contrast, one MS expressly argued that with a uniform applicable 
law, the exercise of the right to defence would be simplified. 
21 See COM Proposal for a Directive  on adapting non-contractual civil liability rules to artificial intelligence (AI 
Liability Directive), COM/2022/496 final. The Proposal does not contain conflict of law rules and although the 
harmonisation reduces the differences in outcome that could derive from the application of the national law of one 
or other MS it only addresses very specific elements related to disclosure of evidence and the burden of proof and 
even within its restricted scope it represents minimum harmonisation so that differences will remain. 

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problems were alluded to, they were not specified. It was pointed out that it would be premature 
to seek solutions to problems without waiting to see what they might be, and the question was 
articulated  whether  one  should  even  consider  special  rules  for AI  liability  since  Rome  II  is 
deliberately technology neutral.  

This generally cautious approach was also followed by the 2021 Study which pointed to the 
lack of practical examples in this area and the fact that legal systems had not yet defined their 
approach  to  the  imposition  of  substantive  liability,  in  particular  the  question  whether  the 
producer or the user of the AI system should be primarily liable. 

Against that background it can be concluded that, subject to further analysis, the time may not 
yet be ripe to envisage any potential amendments to Rome II to introduce AI-specific rules. 

3.3 Financial market torts and prospectus liability 

The application of Rome II to financial market torts and prospectus liability has been frequently 
debated,  especially  in  academia.  In  particular,  it  has  been  controversially  discussed  how  to 
apply Art. 4 to cases of non-contractual obligations arising out of a tort on the financial market. 
Some authors argue that the general rule in Art. 4 of Rome II is ill-fitted to govern cases of 
financial market torts, including cases of prospectus liability, as the sustained damage is 
only  a  purely  economic  one  and  its  localisation  following  the  lex  loci  damni  is  thus 
complicated.  Moreover,  depending  on  the  interpretation  of  Art.  4(1),  in  situations  where 
affected investors or their accounts are located in various countries, the issuers of securities (or 
other persons liable) may be subject to claims under various legal regimes for a single act such 
as making incorrect representations in a prospectus. 

The question of how to localise purely financial loss under Rome II is not limited to cases of 
financial  market  torts22  but  it  has  mostly  been  raised  in  that  context.  Several  preliminary 
references regarding the localisation of financial loss have been submitted to the CJEU in the 
context of determining jurisdiction under the Brussels Ia Regulation but no unequivocally clear 
jurisprudence has yet emerged on this question23. The transfer of these rulings to the context of 
Rome II could cause undesirable outcomes, including a fragmentation of the law applicable to 
a  single  financial  market  tort24. The  fragmentation  of  the  applicable  law  would  also  render 
collective actions of investors more difficult and would lead to possibly unjustified differences 
in the standards of protection between investors. In addition, it may be difficult to predict the 
law in advance, since transactions with financial instruments usually take place in secondary 
markets or the habitual residence of the investor or the place of establishment of the account-
holding bank is mostly unknown to an issuer (or an intermediary).  

Different  options  have  been  proposed  as  to  an  appropriate  solution.  For  instance,  it  was 
suggested by some scholars that Art. 4 be (re)interpreted through case law on the basis of an 

22 See e.g. the pending case Wunner where the CJEU is asked to determine the ‘place where the damage occurred’ 
in a case of tortious liability in respect of gaming losses. 
23 The CJEU held e.g. in Kolassa, that the damage arising from misinformation in a prospectus occurred at the 
domicile of the investor, as long as this place coincided with the place of establishment of the bank which manages 
the investor’s account. In contrast, in its most recent decision, VEB v BP, the CJEU took the stricter view that the 
place where the damage occurred is not the MS 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 MS. 
24 That would be the case especially if the line of case law were followed that locates the financial damage in the 
country where the investor account is held. 

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unchanged text to address the uncertainty concerning the place of damage. In particular, it is 
often argued that that place should correspond to the relevant affected financial market. Other 
suggestions included e.g. that the escape clause in Art. 4(3) is used, thus leading to a single 
applicable law to the whole dispute, such as the law of the country where the securities are 
listed or admitted to trading. 

Alternatively, in order to address these concerns holistically, it has been proposed to  amend 
Rome  II  to  lay  down  a  special  conflict  of  law  rule  concerning  non-contractual  obligations 
arising  out  of  torts  on  a  financial  market,  including  prospectus  liability25.  This  rule  could 
subject those obligations to the law of the country where the relevant market is located 
(where  the  affected  financial  instrument  has  been  admitted  to  trading).  However,  it  is 
questioned  whether  such  a  rule  would  work  in  all  cases,  including  non-listed  financial 
instruments (over-the-counter sales). While introducing a conflict-of-law rule centred around 
the relevant regulated market seems to be preferred by most scholars, other proposals exist26.  

Member States reported, similarly to the 2021 Study27, that the cases involving cross-border 
financial market torts and liability for prospectuses did not occur often and related issues with 
the application of Rome II were thus limited. On the other hand, three MS reported practical 
difficulties with applying Rome II to this area of torts and proposed that a special conflict-of-
law rule in this area is considered. The law of either the country on whose market the securities 
are listed or the country where the issuer has their registered office was recommended.  

Although the problem is especially raised by academia, the CJEU preliminary rulings in the 
context  of  establishing  jurisdiction  in  case  of  financial  market  torts  and  prospectus  liability 
show  that  the  localisation  of  financial  loss  is  becoming  a  relevant  issue  also  among  the 
practitioners. It follows that it should be examined in more detail how to address cases where 
damages are purely economic, possibly by including a special conflict-of-law rule in Rome II 
dealing with financial market torts and prospectus liability or by leaving it to the interpretation 
of the courts.  

3.4 Collective redress and cases involving multiple parties 

Multi-state scenarios involving cases of product liability, acts of unfair competition and acts 
restricting  free  competition,  prospectus  liability,  multi-vehicle  accidents,  or  mass  harm 
consumer cases are some of the examples where a group of victims may suffer harm from the 
same act. In those situations, where a collective action seeks compensation for all members of 
the harmed group, damage is to be located independently and separately for each claim and 
each victim. Therefore, in cases of collective redress, the court seised may have to apply several 
substantive  laws  to  the  claims  of  different  claimants  of  the  group.  This  may  be  the  case  in 
particular in the context of representative actions for the protection of the collective interests 
of consumers brought pursuant to the relatively recently adopted Directive (EU) 2020/182828, 

25 See e.g. the Resolution of the German Council on Private International Law of 31. 03. 2012, IPRax 2012/5 p. 
471 which suggests introducing a special conflict rule for financial torts based on the law of the country where 
the affected financial instrument is traded. There is also an escape clause and a clause for instruments traded on 
more than one trading venue, in addition to a proposed change to the recitals. See also 2021 Study, p. 34. 
26 For examples, see 2021 Study p. 33, 239. 
27 p. 396.  
28  Directive  (EU)  2020/1828  of  the  European  Parliament  and  of  the  Council  of  25  November  2020  on 
representative actions for the protection of the collective interests of consumers, OJ L 409, 4.12.2020, p. 1–27. 

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when the consumers represented are domiciled in more than one country. The application of 
several  substantive  laws  tends  to  complicate  the  assessment  of  the  case,  increase  costs  and 
length  of  the  litigation  and  may  have  a  cooling  effect  on  consumer  movement  litigation 
strategies. On the other hand, the alternative, i.e. subjecting the claims to different applicable 
laws  depending  on  whether  the  claims  are  pursued  individually  or  jointly  in  the  context  of 
collective redress, may affect the predictability of the applicable law rules and, consequently, 
legal certainty. 

On the question whether Rome II is well adapted to deal with collective redress, which may 
involve a large number of potentially applicable laws, MS opinions in the 2023 Questionnaire 
varied. While the majority did not comment or found the present situation satisfactory29, some 
alluded to potential problems or took the view that the solution lay in dividing the action into 
batches according to the relevant applicable law. 

Even though it cannot be concluded at this stage whether there could be a solution other than 
the current status that would both facilitate collective redress and ensure legal certainty on the 
applicable law irrespective of the procedure chosen to claim compensation, further attention 
should be given to that assessment in the context of a possible review of Rome II. 

 4. CONCLUSION  

Taking stock of the practical experience over the fifteen years since Rome II has entered into 
application, on the basis of the views collected from Member States and stakeholders as well 
as  of  the  assessment  of  that  experience  in  various  studies,  it  can  be  concluded  that  the 
Regulation generally works well and is fit for purpose. Legal certainty as to the interpretation 
of the Regulation was further enhanced by the emergence of CJEU rulings30 and national case 
law.  

However, the findings in this report reveal several issues that merit further in-depth analysis 
with a view to assessing whether targeted legislative adjustments of Rome II are desirable and 
what  options  may  exist  to  efficiently  address  them.  These  issues  most  notably  include  the 
following: 

•  a reassessment of the exclusion from scope of Rome II for privacy and  personality 

• 

• 

rights, including defamation; 
the application of Rome II in cases where the damage occurs simultaneously in many 
jurisdictions, leading to a possible application of multiple national laws to the non-
contractual  obligation  (e.g.  cases  of  collective  redress  and  torts  committed  online, 
including infringements of IP rights online, esp. of copyright); 
torts causing purely economic losses, including financial market torts and prospectus 
liability. 

On this basis, with a view to assessing whether legislative change is needed, the Commission 
will carry out further analysis in order to consider and potentially prepare a proposal to amend 
or recast the Regulation in accordance with the Better Regulation rules. In that context, further 

29 One MS indicated that recourse to Art. 4(3) would normally provide a solution. 
30 See Section 4 of the SWD on case law. 

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analysis can also be carried out to assess the merits of other conceivable modifications or, in 
areas where the existing rules are fully appropriate, possible textual clarifications to facilitate 
their application.   

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