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L 199/40 EN Official Journal…
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L 199/40 EN Official Journal of the European Union 31.7.2007
REGULATION (EC) No 864/2007 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 11 July 2007
on the law applicable to non-contractual obligations (Rome II)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO- (5) The Hague Programme (4), adopted by the European
PEAN UNION, Council on 5 November 2004, called for work to be pur-
sued actively on the rules of conflict of laws regarding
non-contractual obligations (Rome II).
Having regard to the Treaty establishing the European Commu-
nity, and in particular Articles 61(c) and 67 thereof,
(6) The proper functioning of the internal market creates a
Having regard to the proposal from the Commission, need, in order to improve the predictability of the out-
come of litigation, certainty as to the law applicable and
the free movement of judgments, for the conflict-of-law
Having regard to the opinion of the European Economic and
rules in the Member States to designate the same national
Social Committee (1),
law irrespective of the country of the court in which an
action is brought.
Acting in accordance with the procedure laid down in Article 251
of the Treaty in the light of the joint text approved by the Con-
ciliation Committee on 25 June 2007 (2), (7) The substantive scope and the provisions of this Regula-
tion should be consistent with Council Regulation (EC)
No 44/2001 of 22 December 2000 on jurisdiction and
Whereas:
the recognition and enforcement of judgments in civil and
commercial matters (5) (Brussels I) and the instruments
(1) The Community has set itself the objective of maintain- dealing with the law applicable to contractual obligations.
ing and developing an area of freedom, security and jus-
tice. For the progressive establishment of such an area, the
Community is to adopt measures relating to judicial coop- (8) This Regulation should apply irrespective of the nature of
eration in civil matters with a cross-border impact to the the court or tribunal seised.
extent necessary for the proper functioning of the inter-
nal market.
(9) Claims arising out of acta iure imperii should include claims
(2) According to Article 65(b) of the Treaty, these measures against officials who act on behalf of the State and liabil-
are to include those promoting the compatibility of the ity for acts of public authorities, including liability of pub-
rules applicable in the Member States concerning the con- licly appointed office-holders. Therefore, these matters
flict of laws and of jurisdiction. should be excluded from the scope of this Regulation.
(3) The European Council meeting in Tampere on 15 and
16 October 1999 endorsed the principle of mutual recog- (10) Family relationships should cover parentage, marriage,
nition of judgments and other decisions of judicial affinity and collateral relatives. The reference in
authorities as the cornerstone of judicial cooperation in Article 1(2) to relationships having comparable effects to
civil matters and invited the Council and the Commission marriage and other family relationships should be inter-
to adopt a programme of measures to implement the prin- preted in accordance with the law of the Member State in
ciple of mutual recognition. which the court is seised.
(4) On 30 November 2000, the Council adopted a joint Com-
mission and Council programme of measures for imple- (11) The concept of a non-contractual obligation varies from
mentation of the principle of mutual recognition of one Member State to another. Therefore for the purposes
decisions in civil and commercial matters (3). The pro- of this Regulation non-contractual obligation should be
gramme identifies measures relating to the harmonisation understood as an autonomous concept. The conflict-of-
of conflict-of-law rules as those facilitating the mutual rec- law rules set out in this Regulation should also cover non-
ognition of judgments. contractual obligations arising out of strict liability.
(1) OJ C 241, 28.9.2004, p. 1.
(2) Opinion of the European Parliament of 6 July 2005 (OJ C 157 E, (12) The law applicable should also govern the question of the
6.7.2006, p. 371), Council Common Position of 25 September 2006 capacity to incur liability in tort/delict.
(OJ C 289 E, 28.11.2006, p. 68) and Position of the European Parlia-
ment of 18 January 2007 (not yet published in the Official Journal).
European Parliament Legislative Resolution of 10 July 2007 and (4) OJ C 53, 3.3.2005, p. 1.
Council Decision of 28 June 2007. (5) OJ L 12, 16.1.2001, p. 1. Regulation as last amended by Regulation
(3) OJ C 12, 15.1.2001, p. 1. (EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).
31.7.2007 EN Official Journal of the European Union L 199/41
(13) Uniform rules applied irrespective of the law they desig- (20) The conflict-of-law rule in matters of product liability
nate may avert the risk of distortions of competition should meet the objectives of fairly spreading the risks
between Community litigants. inherent in a modern high-technology society, protecting
consumers' health, stimulating innovation, securing undis-
torted competition and facilitating trade. Creation of a cas-
cade system of connecting factors, together with a
(14) The requirement of legal certainty and the need to do jus- foreseeability clause, is a balanced solution in regard to
tice in individual cases are essential elements of an area of these objectives. The first element to be taken into account
justice. This Regulation provides for the connecting fac- is the law of the country in which the person sustaining
tors which are the most appropriate to achieve these the damage had his or her habitual residence when the
objectives. Therefore, this Regulation provides for a gen- damage occurred, if the product was marketed in that
eral rule but also for specific rules and, in certain provi- country. The other elements of the cascade are triggered
sions, for an `escape clause' which allows a departure from if the product was not marketed in that country, without
these rules where it is clear from all the circumstances of prejudice to Article 4(2) and to the possibility of a mani-
the case that the tort/delict is manifestly more closely con- festly closer connection to another country.
nected with another country. This set of rules thus creates
a flexible framework of conflict-of-law rules. Equally, it
enables the court seised to treat individual cases in an
appropriate manner.
(21) The special rule in Article 6 is not an exception to the
general rule in Article 4(1) but rather a clarification of it.
(15) The principle of the lex loci delicti commissi is the basic solu- In matters of unfair competition, the conflict-of-law rule
tion for non-contractual obligations in virtually all the should protect competitors, consumers and the general
public and ensure that the market economy functions
Member States, but the practical application of the prin-
properly. The connection to the law of the country where
ciple where the component factors of the case are spread
competitive relations or the collective interests of consum-
over several countries varies. This situation engenders
ers are, or are likely to be, affected generally satisfies these
uncertainty as to the law applicable.
objectives.
(16) Uniform rules should enhance the foreseeability of court
decisions and ensure a reasonable balance between the
interests of the person claimed to be liable and the per- (22) The non-contractual obligations arising out of restrictions
son who has sustained damage. A connection with the of competition in Article 6(3) should cover infringements
country where the direct damage occurred (lex loci damni) of both national and Community competition law. The
strikes a fair balance between the interests of the person law applicable to such non-contractual obligations should
claimed to be liable and the person sustaining the dam- be the law of the country where the market is, or is likely
age, and also reflects the modern approach to civil liabil- to be, affected. In cases where the market is, or is likely to
ity and the development of systems of strict liability. be, affected in more than one country, the claimant should
be able in certain circumstances to choose to base his or
her claim on the law of the court seised.
(17) The law applicable should be determined on the basis of
where the damage occurs, regardless of the country or
countries in which the indirect consequences could occur.
Accordingly, in cases of personal injury or damage to (23) For the purposes of this Regulation, the concept of restric-
property, the country in which the damage occurs should tion of competition should cover prohibitions on agree-
be the country where the injury was sustained or the prop- ments between undertakings, decisions by associations of
erty was damaged respectively. undertakings and concerted practices which have as their
object or effect the prevention, restriction or distortion of
competition within a Member State or within the internal
(18) The general rule in this Regulation should be the lex loci market, as well as prohibitions on the abuse of a domi-
damni provided for in Article 4(1). Article 4(2) should be nant position within a Member State or within the inter-
seen as an exception to this general principle, creating a nal market, where such agreements, decisions, concerted
special connection where the parties have their habitual practices or abuses are prohibited by Articles 81 and 82
residence in the same country. Article 4(3) should be of the Treaty or by the law of a Member State.
understood as an `escape clause' from Article 4(1) and (2),
where it is clear from all the circumstances of the case that
the tort/delict is manifestly more closely connected with
another country.
(24) `Environmental damage' should be understood as mean-
ing adverse change in a natural resource, such as water,
land or air, impairment of a function performed by that
(19) Specific rules should be laid down for special torts/delicts resource for the benefit of another natural resource or the
where the general rule does not allow a reasonable bal- public, or impairment of the variability among living
ance to be struck between the interests at stake. organisms.
L 199/42 EN Official Journal of the European Union 31.7.2007
(25) Regarding environmental damage, Article 174 of the Where establishing the existence of the agreement, the
Treaty, which provides that there should be a high level court has to respect the intentions of the parties. Protec-
of protection based on the precautionary principle and the tion should be given to weaker parties by imposing cer-
principle that preventive action should be taken, the prin- tain conditions on the choice.
ciple of priority for corrective action at source and the
principle that the polluter pays, fully justifies the use of
the principle of discriminating in favour of the person sus-
(32) Considerations of public interest justify giving the courts
taining the damage. The question of when the person seek-
of the Member States the possibility, in exceptional cir-
ing compensation can make the choice of the law
cumstances, of applying exceptions based on public policy
applicable should be determined in accordance with the
and overriding mandatory provisions. In particular, the
law of the Member State in which the court is seised.
application of a provision of the law designated by this
Regulation which would have the effect of causing non-
compensatory exemplary or punitive damages of an exces-
(26) Regarding infringements of intellectual property rights, the sive nature to be awarded may, depending on the
universally acknowledged principle of the lex loci protectio- circumstances of the case and the legal order of the Mem-
nis should be preserved. For the purposes of this Regula- ber State of the court seised, be regarded as being con-
tion, the term `intellectual property rights' should be trary to the public policy (ordre public) of the forum.
interpreted as meaning, for instance, copyright, related
rights, the sui generis right for the protection of databases
and industrial property rights. (33) According to the current national rules on compensation
awarded to victims of road traffic accidents, when quanti-
fying damages for personal injury in cases in which the
accident takes place in a State other than that of the
(27) The exact concept of industrial action, such as strike action habitual residence of the victim, the court seised should
or lock-out, varies from one Member State to another and take into account all the relevant actual circumstances of
is governed by each Member State's internal rules. There- the specific victim, including in particular the actual losses
fore, this Regulation assumes as a general principle that and costs of after-care and medical attention.
the law of the country where the industrial action was
taken should apply, with the aim of protecting the rights
and obligations of workers and employers.
(34) In order to strike a reasonable balance between the par-
ties, account must be taken, in so far as appropriate, of
the rules of safety and conduct in operation in the coun-
try in which the harmful act was committed, even where
(28) The special rule on industrial action in Article 9 is with-
the non-contractual obligation is governed by the law of
out prejudice to the conditions relating to the exercise of
another country. The term `rules of safety and conduct'
such action in accordance with national law and without
should be interpreted as referring to all regulations hav-
prejudice to the legal status of trade unions or of the rep-
ing any relation to safety and conduct, including, for
resentative organisations of workers as provided for in the
law of the Member States. example, road safety rules in the case of an accident.
(35) A situation where conflict-of-law rules are dispersed
(29) Provision should be made for special rules where damage among several instruments and where there are differ-
is caused by an act other than a tort/delict, such as unjust ences between those rules should be avoided. This Regu-
enrichment, negotiorum gestio and culpa in contrahendo. lation, however, does not exclude the possibility of
inclusion of conflict-of-law rules relating to non-
contractual obligations in provisions of Community law
with regard to particular matters.
(30) Culpa in contrahendo for the purposes of this Regulation is
an autonomous concept and should not necessarily be
interpreted within the meaning of national law. It should This Regulation should not prejudice the application of
include the violation of the duty of disclosure and the other instruments laying down provisions designed to
breakdown of contractual negotiations. Article 12 covers contribute to the proper functioning of the internal mar-
only non-contractual obligations presenting a direct link ket in so far as they cannot be applied in conjunction with
with the dealings prior to the conclusion of a contract. the law designated by the rules of this Regulation. The
This means that if, while a contract is being negotiated, a application of provisions of the applicable law designated
person suffers personal injury, Article 4 or other relevant by the rules of this Regulation should not restrict the free
provisions of this Regulation should apply. movement of goods and services as regulated by Commu-
nity instruments, such as Directive 2000/31/EC of the
European Parliament and of the Council of 8 June 2000
on certain legal aspects of information society services, in
(31) To respect the principle of party autonomy and to enhance particular electronic commerce, in the Internal Market
legal certainty, the parties should be allowed to make a (Directive on electronic commerce) (1).
choice as to the law applicable to a non-contractual obli-
gation. This choice should be expressed or demonstrated
with reasonable certainty by the circumstances of the case. (1) OJ L 178, 17.7.2000, p. 1.
31.7.2007 EN Official Journal of the European Union L 199/43
(36) Respect for international commitments entered into by 2. The following shall be excluded from the scope of this
the Member States means that this Regulation should not Regulation:
affect international conventions to which one or more
Member States are parties at the time this Regulation is
adopted. To make the rules more accessible, the Commis- (a) non-contractual obligations arising out of family relation-
sion should publish the list of the relevant conventions in ships and relationships deemed by the law applicable to such
the Official Journal of the European Union on the basis of relationships to have comparable effects including mainte-
information supplied by the Member States. nance obligations;
(37) The Commission will make a proposal to the European (b) non-contractual obligations arising out of matrimonial prop-
Parliament and the Council concerning the procedures and erty regimes, property regimes of relationships deemed by
conditions according to which Member States would be the law applicable to such relationships to have comparable
entitled to negotiate and conclude on their own behalf effects to marriage, and wills and succession;
agreements with third countries in individual and excep-
tional cases, concerning sectoral matters, containing pro-
visions on the law applicable to non-contractual (c) non-contractual obligations arising under bills of exchange,
obligations. cheques and promissory notes and other negotiable instru-
ments to the extent that the obligations under such other
negotiable instruments arise out of their negotiable character;
(38) Since the objective of this Regulation cannot be suffi-
ciently achieved by the Member States, and can therefore,
by reason of the scale and effects of this Regulation, be (d) non-contractual obligations arising out of the law of com-
better achieved at Community level, the Community may panies and other bodies corporate or unincorporated regard-
adopt measures, in accordance with the principle of sub- ing matters such as the creation, by registration or otherwise,
sidiarity set out in Article 5 of the Treaty. In accordance legal capacity, internal organisation or winding-up of com-
with the principle of proportionality set out in that Article, panies and other bodies corporate or unincorporated, the
this Regulation does not go beyond what is necessary to personal liability of officers and members as such for the
attain that objective. obligations of the company or body and the personal liabil-
ity of auditors to a company or to its members in the statu-
tory audits of accounting documents;
(39) In accordance with Article 3 of the Protocol on the posi-
tion of the United Kingdom and Ireland annexed to the
Treaty on European Union and to the Treaty establishing (e) non-contractual obligations arising out of the relations
the European Community, the United Kingdom and Ire- between the settlors, trustees and beneficiaries of a trust cre-
land are taking part in the adoption and application of ated voluntarily;
this Regulation.
(f) non-contractual obligations arising out of nuclear damage;
(40) In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark, annexed to the Treaty on Euro-
pean Union and to the Treaty establishing the European
Community, Denmark does not take part in the adoption (g) non-contractual obligations arising out of violations of pri-
of this Regulation, and is not bound by it or subject to its vacy and rights relating to personality, including defamation.
application,
3. This Regulation shall not apply to evidence and procedure,
without prejudice to Articles 21 and 22.
HAVE ADOPTED THIS REGULATION:
4. For the purposes of this Regulation, `Member State' shall
CHAPTER I mean any Member State other than Denmark.
SCOPE
Article 2
Non-contractual obligations
Article 1
Scope
1. For the purposes of this Regulation, damage shall cover any
consequence arising out of tort/delict, unjust enrichment, nego-
1. This Regulation shall apply, in situations involving a con- tiorum gestio or culpa in contrahendo.
flict of laws, to non-contractual obligations in civil and commer-
cial matters. It shall not apply, in particular, to revenue, customs
or administrative matters or to the liability of the State for acts 2. This Regulation shall apply also to non-contractual obliga-
and omissions in the exercise of State authority (acta iure imperii). tions that are likely to arise.
L 199/44 EN Official Journal of the European Union 31.7.2007
3. Any reference in this Regulation to: (c) the law of the country in which the damage occurred, if the
product was marketed in that country.
(a) an event giving rise to damage shall include events giving
rise to damage that are likely to occur; and
However, the law applicable shall be the law of the country in
which the person claimed to be liable is habitually resident if he
(b) damage shall include damage that is likely to occur. or she could not reasonably foresee the marketing of the prod-
uct, or a product of the same type, in the country the law of
which is applicable under (a), (b) or (c).
Article 3
Universal application
2. Where it is clear from all the circumstances of the case that
the tort/delict is manifestly more closely connected with a coun-
Any law specified by this Regulation shall be applied whether or try other than that indicated in paragraph 1, the law of that other
not it is the law of a Member State. country shall apply. A manifestly closer connection with another
country might be based in particular on a pre-existing relation-
ship between the parties, such as a contract, that is closely con-
CHAPTER II nected with the tort/delict in question.
TORTS/DELICTS
Article 6
Article 4
Unfair competition and acts restricting free competition
General rule
1. Unless otherwise provided for in this Regulation, the law
1. The law applicable to a non-contractual obligation arising
applicable to a non-contractual obligation arising out of a
out of an act of unfair competition shall be the law of the coun-
tort/delict shall be the law of the country in which the damage
try where competitive relations or the collective interests of con-
occurs irrespective of the country in which the event giving rise
sumers are, or are likely to be, affected.
to the damage occurred and irrespective of the country or coun-
tries in which the indirect consequences of that event occur.
2. Where an act of unfair competition affects exclusively the
2. However, where the person claimed to be liable and the
interests of a specific competitor, Article 4 shall apply.
person sustaining damage both have their habitual residence in
the same country at the time when the damage occurs, the law
of that country shall apply.
3. (a) The law applicable to a non-contractual obligation aris-
ing out of a restriction of competition shall be the law
3. Where it is clear from all the circumstances of the case that
of the country where the market is, or is likely to be,
the tort/delict is manifestly more closely connected with a coun-
try other than that indicated in paragraphs 1 or 2, the law of affected.
that other country shall apply. A manifestly closer connection
with another country might be based in particular on a pre-
existing relationship between the parties, such as a contract, that (b) When the market is, or is likely to be, affected in more
is closely connected with the tort/delict in question. than one country, the person seeking compensation
for damage who sues in the court of the domicile of
the defendant, may instead choose to base his or her
Article 5 claim on the law of the court seised, provided that the
market in that Member State is amongst those directly
Product liability and substantially affected by the restriction of compe-
tition out of which the non-contractual obligation on
1. Without prejudice to Article 4(2), the law applicable to a which the claim is based arises; where the claimant
non-contractual obligation arising out of damage caused by a sues, in accordance with the applicable rules on juris-
product shall be: diction, more than one defendant in that court, he or
she can only choose to base his or her claim on the
law of that court if the restriction of competition on
(a) the law of the country in which the person sustaining the which the claim against each of these defendants relies
damage had his or her habitual residence when the damage directly and substantially affects also the market in the
occurred, if the product was marketed in that country; or, Member State of that court.
failing that,
(b) the law of the country in which the product was acquired, if 4. The law applicable under this Article may not be derogated
the product was marketed in that country; or, failing that, from by an agreement pursuant to Article 14.
31.7.2007 EN Official Journal of the European Union L 199/45
Article 7 3. Where the law applicable cannot be determined on the
basis of paragraphs 1 or 2, it shall be the law of the country in
Environmental damage which the unjust enrichment took place.
The law applicable to a non-contractual obligation arising out of 4. Where it is clear from all the circumstances of the case that
environmental damage or damage sustained by persons or prop- the non-contractual obligation arising out of unjust enrichment
erty as a result of such damage shall be the law determined pur- is manifestly more closely connected with a country other than
suant to Article 4(1), unless the person seeking compensation for that indicated in paragraphs 1, 2 and 3, the law of that other
damage chooses to base his or her claim on the law of the coun- country shall apply.
try in which the event giving rise to the damage occurred.
Article 11
Article 8 Negotiorum gestio
Infringement of intellectual property rights
1. If a non-contractual obligation arising out of an act per-
formed without due authority in connection with the affairs of
1. The law applicable to a non-contractual obligation arising another person concerns a relationship existing between the par-
from an infringement of an intellectual property right shall be ties, such as one arising out of a contract or a tort/delict, that is
the law of the country for which protection is claimed. closely connected with that non-contractual obligation, it shall
be governed by the law that governs that relationship.
2. In the case of a non-contractual obligation arising from an 2. Where the law applicable cannot be determined on the
infringement of a unitary Community intellectual property right, basis of paragraph 1, and the parties have their habitual resi-
the law applicable shall, for any question that is not governed by dence in the same country when the event giving rise to the dam-
the relevant Community instrument, be the law of the country age occurs, the law of that country shall apply.
in which the act of infringement was committed.
3. Where the law applicable cannot be determined on the
3. The law applicable under this Article may not be derogated basis of paragraphs 1 or 2, it shall be the law of the country in
from by an agreement pursuant to Article 14. which the act was performed.
4. Where it is clear from all the circumstances of the case that
Article 9 the non-contractual obligation arising out of an act performed
without due authority in connection with the affairs of another
Industrial action person is manifestly more closely connected with a country other
than that indicated in paragraphs 1, 2 and 3, the law of that
other country shall apply.
Without prejudice to Article 4(2), the law applicable to a non-
contractual obligation in respect of the liability of a person in
the capacity of a worker or an employer or the organisations
Article 12
representing their professional interests for damages caused by
an industrial action, pending or carried out, shall be the law of Culpa in contrahendo
the country where the action is to be, or has been, taken.
1. The law applicable to a non-contractual obligation arising
out of dealings prior to the conclusion of a contract, regardless
CHAPTER III of whether the contract was actually concluded or not, shall be
the law that applies to the contract or that would have been
UNJUST ENRICHMENT, NEGOTIORUM GESTIO AND CULPA IN applicable to it had it been entered into.
CONTRAHENDO
2. Where the law applicable cannot be determined on the
basis of paragraph 1, it shall be:
Article 10
Unjust enrichment (a) the law of the country in which the damage occurs, irrespec-
tive of the country in which the event giving rise to the dam-
age occurred and irrespective of the country or countries in
1. If a non-contractual obligation arising out of unjust enrich- which the indirect consequences of that event occurred; or
ment, including payment of amounts wrongly received, concerns
a relationship existing between the parties, such as one arising
(b) where the parties have their habitual residence in the same
out of a contract or a tort/delict, that is closely connected with
country at the time when the event giving rise to the dam-
that unjust enrichment, it shall be governed by the law that gov-
age occurs, the law of that country; or
erns that relationship.
(c) where it is clear from all the circumstances of the case that
2. Where the law applicable cannot be determined on the the non-contractual obligation arising out of dealings prior
basis of paragraph 1 and the parties have their habitual residence to the conclusion of a contract is manifestly more closely
in the same country when the event giving rise to unjust enrich- connected with a country other than that indicated in
ment occurs, the law of that country shall apply. points (a) and (b), the law of that other country.
L 199/46 EN Official Journal of the European Union 31.7.2007
Article 13 (c) the existence, the nature and the assessment of damage or
the remedy claimed;
Applicability of Article 8
For the purposes of this Chapter, Article 8 shall apply to non- (d) within the limits of powers conferred on the court by its
contractual obligations arising from an infringement of an intel- procedural law, the measures which a court may take to pre-
lectual property right. vent or terminate injury or damage or to ensure the provi-
sion of compensation;
CHAPTER IV (e) the question whether a right to claim damages or a remedy
FREEDOM OF CHOICE may be transferred, including by inheritance;
(f) persons entitled to compensation for damage sustained
Article 14
personally;
Freedom of choice
(g) liability for the acts of another person;
1. The parties may agree to submit non-contractual obliga-
tions to the law of their choice:
(h) the manner in which an obligation may be extinguished and
rules of prescription and limitation, including rules relating
(a) by an agreement entered into after the event giving rise to to the commencement, interruption and suspension of a
the damage occurred; period of prescription or limitation.
or
Article 16
(b) where all the parties are pursuing a commercial activity, also
by an agreement freely negotiated before the event giving Overriding mandatory provisions
rise to the damage occurred.
Nothing in this Regulation shall restrict the application of the
The choice shall be expressed or demonstrated with reasonable provisions of the law of the forum in a situation where they are
certainty by the circumstances of the case and shall not preju- mandatory irrespective of the law otherwise applicable to the
dice the rights of third parties. non-contractual obligation.
2. Where all the elements relevant to the situation at the time
when the event giving rise to the damage occurs are located in a Article 17
country other than the country whose law has been chosen, the
choice of the parties shall not prejudice the application of provi- Rules of safety and conduct
sions of the law of that other country which cannot be dero-
gated from by agreement. In assessing the conduct of the person claimed to be liable,
account shall be taken, as a matter of fact and in so far as is
3. Where all the elements relevant to the situation at the time appropriate, of the rules of safety and conduct which were in
when the event giving rise to the damage occurs are located in force at the place and time of the event giving rise to the liability.
one or more of the Member States, the parties' choice of the law
applicable other than that of a Member State shall not prejudice
the application of provisions of Community law, where appro- Article 18
priate as implemented in the Member State of the forum, which
cannot be derogated from by agreement. Direct action against the insurer of the person liable
The person having suffered damage may bring his or her claim
CHAPTER V directly against the insurer of the person liable to provide com-
COMMON RULES pensation if the law applicable to the non-contractual obligation
or the law applicable to the insurance contract so provides.
Article 15
Article 19
Scope of the law applicable
Subrogation
The law applicable to non-contractual obligations under this
Regulation shall govern in particular: Where a person (the creditor) has a non-contractual claim upon
another (the debtor), and a third person has a duty to satisfy the
(a) the basis and extent of liability, including the determination creditor, or has in fact satisfied the creditor in discharge of that
of persons who may be held liable for acts performed by duty, the law which governs the third person's duty to satisfy the
them; creditor shall determine whether, and the extent to which, the
third person is entitled to exercise against the debtor the rights
(b) the grounds for exemption from liability, any limitation of which the creditor had against the debtor under the law govern-
liability and any division of liability; ing their relationship.
31.7.2007 EN Official Journal of the European Union L 199/47
Article 20 Article 24
Multiple liability Exclusion of renvoi
If a creditor has a claim against several debtors who are liable The application of the law of any country specified by this Regu-
for the same claim, and one of the debtors has already satisfied lation means the application of the rules of law in force in that
the claim in whole or in part, the question of that debtor's right country other than its rules of private international law.
to demand compensation from the other debtors shall be gov-
erned by the law applicable to that debtor's non-contractual obli-
gation towards the creditor.
Article 25
States with more than one legal system
Article 21
Formal validity 1. Where a State comprises several territorial units, each of
which has its own rules of law in respect of non-contractual obli-
gations, each territorial unit shall be considered as a country for
A unilateral act intended to have legal effect and relating to a
the purposes of identifying the law applicable under this
non-contractual obligation shall be formally valid if it satisfies
Regulation.
the formal requirements of the law governing the non-
contractual obligation in question or the law of the country in
which the act is performed.
2. A Member State within which different territorial units have
their own rules of law in respect of non-contractual obligations
shall not be required to apply this Regulation to conflicts solely
Article 22 between the laws of such units.
Burden of proof
Article 26
1. The law governing a non-contractual obligation under this
Regulation shall apply to the extent that, in matters of non- Public policy of the forum
contractual obligations, it contains rules which raise presump-
tions of law or determine the burden of proof.
The application of a provision of the law of any country speci-
fied by this Regulation may be refused only if such application is
2. Acts intended to have legal effect may be proved by any manifestly incompatible with the public policy (ordre public) of
mode of proof recognised by the law of the forum or by any of the forum.
the laws referred to in Article 21 under which that act is for-
mally valid, provided that such mode of proof can be adminis-
tered by the forum.
Article 27
Relationship with other provisions of Community law
CHAPTER VI
OTHER PROVISIONS This Regulation shall not prejudice the application of provisions
of Community law which, in relation to particular matters, lay
down conflict-of-law rules relating to non-contractual
Article 23 obligations.
Habitual residence
Article 28
1. For the purposes of this Regulation, the habitual residence
of companies and other bodies, corporate or unincorporated, Relationship with existing international conventions
shall be the place of central administration.
1. This Regulation shall not prejudice the application of inter-
Where the event giving rise to the damage occurs, or the dam- national conventions to which one or more Member States are
age arises, in the course of operation of a branch, agency or any parties at the time when this Regulation is adopted and which
other establishment, the place where the branch, agency or any lay down conflict-of-law rules relating to non-contractual
other establishment is located shall be treated as the place of obligations.
habitual residence.
2. However, this Regulation shall, as between Member States,
2. For the purposes of this Regulation, the habitual residence take precedence over conventions concluded exclusively between
of a natural person acting in the course of his or her business two or more of them in so far as such conventions concern mat-
activity shall be his or her principal place of business. ters governed by this Regulation.
L 199/48 EN Official Journal of the European Union 31.7.2007
CHAPTER VII which courts in the Member States apply foreign law in prac-
FINAL PROVISIONS
tice pursuant to this Regulation;
(ii) a study on the effects of Article 28 of this Regulation with
Article 29 respect to the Hague Convention of 4 May 1971 on the law
applicable to traffic accidents.
List of conventions
2. Not later than 31 December 2008, the Commission shall
1. By 11 July 2008, Member States shall notify the Commis- submit to the European Parliament, the Council and the Euro-
sion of the conventions referred to in Article 28(1). After that pean Economic and Social Committee a study on the situation
date, Member States shall notify the Commission of all denuncia- in the field of the law applicable to non-contractual obligations
tions of such conventions. arising out of violations of privacy and rights relating to person-
ality, taking into account rules relating to freedom of the press
2. The Commission shall publish in the Official Journal of the and freedom of expression in the media, and conflict-of-law
European Union within six months of receipt: issues related to Directive 95/46/EC of the European Parliament
and of the Council of 24 October 1995 on the protection of
(i) a list of the conventions referred to in paragraph 1; individuals with regard to the processing of personal data and
on the free movement of such data (1).
(ii) the denunciations referred to in paragraph 1.
Article 31
Article 30 Application in time
Review clause
This Regulation shall apply to events giving rise to damage which
1. Not later than 20 August 2011, the Commission shall sub- occur after its entry into force.
mit to the European Parliament, the Council and the European
Economic and Social Committee a report on the application of
Article 32
this Regulation. If necessary, the report shall be accompanied by
proposals to adapt this Regulation. The report shall include: Date of application
(i) a study on the effects of the way in which foreign law is This Regulation shall apply from 11 January 2009, except for
treated in the different jurisdictions and on the extent to Article 29, which shall apply from 11 July 2008.
This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaty establishing the European Community.
Done at Strasbourg, 11 July 2007.
For the European Parliament For the Council
The President The President
H.-G. PÖTTERING M. LOBO ANTUNES
(1) OJ L 281, 23.11.1995, p. 31.
31.7.2007 EN Official Journal of the European Union L 199/49
Commission Statement on the review clause (Article 30)
The Commission, following the invitation by the European Parliament and the Council in the frame of
Article 30 of the `Rome II' Regulation, will submit, not later than December 2008, a study on the situation
in the field of the law applicable to non-contractual obligations arising out of violations of privacy and rights
relating to personality. The Commission will take into consideration all aspects of the situation and take
appropriate measures if necessary.
Commission Statement on road accidents
The Commission, being aware of the different practices followed in the Member States as regards the level of
compensation awarded to victims of road traffic accidents, is prepared to examine the specific problems
resulting for EU residents involved in road traffic accidents in a Member State other than the Member State
of their habitual residence. To that end the Commission will make available to the European Parliament and
to the Council, before the end of 2008, a study on all options, including insurance aspects, for improving
the position of cross-border victims, which would pave the way for a Green Paper.
Commission Statement on the treatment of foreign law
The Commission, being aware of the different practices followed in the Member States as regards the treat-
ment of foreign law, will publish at the latest four years after the entry into force of the `Rome II' Regulation
and in any event as soon as it is available a horizontal study on the application of foreign law in civil
and commercial matters by the courts of the Member States, having regard to the aims of the Hague Pro-
gramme. It is also prepared to take appropriate measures if necessary.