The law applicable to non-contractual obligations

SUMMARY OF:

Regulation (EC) No 864/2007 — the law applicable to non-contractual obligations (Rome II)

SUMMARY

WHAT DOES THE REGULATION DO?

—	It brings greater legal certainty as to the law applicable with respect to non-contractual obligations, in particular in cases of tort (a wrong under civil law) and delict (civil liability).

—	It also ensures a reasonable balance between the interests of the person claimed to be liable and those of the person who has suffered damage.

—	Any law specified by the regulation is applied whether or not it is the law of an EU country.

—	The regulation applies to all EU countries except Denmark.

KEY POINTS

The regulation does not replace national substantive laws (i.e. the laws that determine rights and obligations) on non-contractual obligations; it only determines which national substantive law applies.

The law applicable to a non-contractual obligation arising out of a tort/delict is:

1.	the law of the country where the damage occurs; or

2.	the law of the country where both parties were primarily living or had their main place of business when the damage occurred; or

3.	if the case is more closely connected with the law of another country, the law of that country.

Under certain conditions, the regulation also allows the parties to choose, by mutual agreement, which law applies to a non-contractual obligation.

Scope of the law applicable

The law applicable to non-contractual obligations governs in particular:

—	the basis and extent of liability, including determining who may be held liable;

—	the grounds for exemption from liability and the limitation or division of liability;

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

—	the measures the court may take to prevent or terminate injury or damage and ensure compensation;

—	the manner in which an obligation may be extinguished and the rules relating to prescription or limitation;

—	the question as to whether the right to seek compensation can be transferred to someone else, including by inheritance;

—	persons entitled to compensation for damage they have sustained;

—	liability for the acts of another person.

There are specific rules for specific non-contractual obligations, for example product liability and intellectual property. Certain non-contractual obligations are excluded from the scope of the regulation. These include:

—	revenue, customs and administrative matters;

—	state liability;

—	specific non-contractual obligations arising out of, for example, matrimonial property regimes and family relationships, nuclear damage or violations of privacy and rights relating to personality, including defamation.

WHEN DOES THE REGULATION APPLY?

As of 11 January 2009, except for Article 29 (which applies as of 11 July 2008).

BACKGROUND

Alongside this regulation (Rome II) please see the following.

—	The Rome I regulation (Regulation (EC) No 593/2008) sets out the rules for determining the law applicable to contractual obligations in civil and commercial matters.

—	The Rome III regulation (Regulation (EU) No 1259/2010) sets out the rules for determining the law applicable to divorce and legal separation.