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Document 62014CC0350

Opinion of Advocate General Wahl delivered on 10 September 2015.

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ECLI identifier: ECLI:EU:C:2015:586

OPINION OF ADVOCATE GENERAL

WAHL

delivered on 10 September 2015 ( 1 )

Case C‑350/14

Florin Lazar

v

Allianz SpA

(Request for a preliminary ruling from the Tribunale di Trieste (Italy))

‛Reference for a preliminary ruling — Judicial cooperation in civil matters — Law applicable to non-contractual obligations — Regulation (EC) No 864/2007 (‘Rome II’) — Article 4(1) — Terms ‘country in which the damage occurs’, ‘damage’ and ‘indirect consequences of the tort/delict’ — Family members of a person who has died as a result of a traffic accident — Persons entitled to compensation for material and non-material damage who reside in different countries’

1. 

Regulation (EC) No 864/2007, ( 2 ) which is in force since 11 January 2009, seeks, in the interest of legal certainty and with a view to taking into account the legitimate interests generally involved, to harmonise the conflict-of-law rules in matters relating to non-contractual obligations. However, that regulation is not intended to harmonise the EU Member States’ substantive law in this regard, which does raise some difficulties of interpretation. Because, in determining the law applicable to actions to establish non-contractual liability in particular, it has recourse to concepts which, while known in all the Member States, may have a markedly different meaning and scope from one legal order to the next, a court may be faced with a difficult exercise where claims are brought before it in the same dispute by persons who do not have their habitual residence in the same country.

2. 

This is particularly the case with the interpretation of Article 4 of the regulation which, in the absence of a choice expressed by the parties, makes the ‘[place] in which the damage occurs’ a decisive factor in respect of the law applicable to an action to establish non-contractual liability. What is meant by ‘damage’, given that under that provision it must be distinguished from the ‘event giving rise to the damage’? Is damage suffered by the close relatives of a victim of a traffic accident, which is considered to have been suffered in jure proprio under national law, to be treated as ‘damage’ within the meaning of Article 4(1) of the Rome II Regulation or should it be regarded as the ‘indirect consequences’ of such damage?

3. 

These questions reflect the essential issues raised by the present request for a preliminary ruling which, in an unprecedented manner to say the least, ( 3 ) requires a number of clarifications to be given regarding the terms contained in that provision. The request has been made in a dispute between Mr Lazar, who resides in Romania, and the Italian insurance company Allianz SpA regarding compensation for material and non-material damage which Mr Lazar claims to have suffered in jure proprio by reason of the death of his daughter, a Romanian national who was resident in Italy, which occurred in Italy as a result of a road traffic accident caused by an unidentified vehicle.

I – Legal framework

A – EU law

1. The Rome II Regulation

4.

Under recital 7 in the preamble to the Rome II Regulation:

‘The substantive scope and the provisions of this Regulation should be consistent with Regulation [(EC) No 44/2001 ( 4 )] and the instruments dealing with the law applicable to contractual obligations.’

5.

Recital 17 in the preamble to the Rome II Regulation states:

‘The law applicable should be determined on the basis of where the damage occurs, regardless of the country or countries in which the indirect consequences could occur. Accordingly, in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively.’

6.

Article 4 of the Rome II Regulation, entitled ‘General rule’, reads as follows:

‘1.   Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

2.   However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

3.   Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.’

7.

Under Article 15(c) of the Rome II Regulation, the law applicable to non-contractual obligations under the regulation governs in particular ‘the existence, the nature and the assessment of damage or the remedy claimed’ and, under Article 15(f), ‘persons entitled to compensation for damage sustained personally’.

2. The Brussels I Regulation

8.

Article 5(3) of the Brussels I Regulation, which forms part of Section 2 (‘Special jurisdiction’) of Chapter II, provides:

‘A person domiciled in a Member State may, in another Member State, be sued:

...

3.

in matters relating to tort, delict or quasi-delict, in the courts for the place in which the harmful event occurred or may occur.’

B – Italian law

9.

As the referring court has explained, the Corte Suprema di Cassazione (Court of Cassation, Italy) has interpreted Articles 2043 and 2059 of the Italian Civil Code as meaning that the members of the deceased person’s family may be awarded, in jure proprio, compensation in respect of material and non-material damage. As regards non-material damage, the following categories of damage may be awarded: damage to health (medically certified damage), psychological damage (non-physical pain) and damage to personal relationships (significant impairment of daily life).

10.

According to the referring court, Article 283(1)(a) and (c) of the Private Insurance Code provides that, where it has not been possible to identify the vehicle which caused the accident, Fondo di garanzia per le vittime della strada (Guarantee Fund for victims of road traffic accidents), is to pay compensation for damage caused as a result of a traffic accident through the intermediary of designated insurance companies located throughout Italy.

II – Facts, the questions referred and the procedure before the Court

11.

The main proceedings concern a claim for compensation in respect of material and non-material damage allegedly suffered in jure proprio, brought by the father, residing in Romania, of a Romanian national who resided in Italy and died in that Member State as the result of a road traffic accident which occurred on 18 May 2012 and was caused by an unidentified vehicle.

12.

Proceedings were brought against the insurance company Allianz SpA, in its capacity as an undertaking designated by the Guarantee Fund for victims of road traffic accidents, which is responsible for providing compensation for damage caused by unidentified vehicles.

13.

The victim’s mother and grandmother, both Romanian nationals residing in Italy, also intervened in the proceedings, claiming compensation for material and non-material damage suffered in jure proprio.

14.

Against this background, the referring court has raised questions about the law applicable to the circumstances of the case and in particular the interpretation of Article 4(1) of the Rome II Regulation.

15.

By decision of 10 July 2014, the Tribunale di Trieste (District Court, Trieste) decided to stay its proceedings and to refer the following questions to the Court:

‘How is Article 4(1) of Regulation No 864/2007 to be interpreted in so far as it provides that “the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs”? In particular:

(1)

How is the term “the [place] in which the damage occurs” within the meaning of Article 4(1) of Regulation No 864/2007 to be interpreted in the context of a claim for compensation for material and non-material damage brought by the family members of a person who has died as a result of a road traffic accident which occurred in the State of the court seised, where those family members are resident in another EU Member State and have suffered the damage itself in that other Member State?

(2)

For the purposes of the application of Article 4(1) of Regulation No 864/2007, do the material and non-material damage suffered, in their State of residence, by the close relatives of a person who has died as a result of a road traffic accident which occurred in the State of the court seised constitute “damage” within the meaning of the first part of Article 4(1) of that regulation, or “indirect consequences” within the meaning of the second part of that provision?’

16.

Written observations were submitted by the interveners in the main proceedings, the Austrian and Portuguese Governments and the European Commission. Mr Lazar did not lodge any observations.

III – Legal analysis

17.

The present request for a preliminary ruling concerns the interpretation of the key criterion for determining the law applicable to non-contractual obligations under the Rome II Regulation, which relates to the place in which the damage occurs.

18.

Before proceeding with the actual examination of the questions referred, I consider it necessary to offer some preliminary clarifications regarding the broad logic of the mechanism established by the Rome II Regulation for determining the law applicable to non-contractual obligations.

A – Preliminary remarks regarding the broad logic of the mechanism introduced by the Rome II Regulation

19.

The diversity of the conflict-of-law rules applicable in relation to non-contractual obligations has given rise to a longstanding ( 5 ) need for standardisation in this field in order to ensure a degree of predictability as to the applicable law and, at the same time, to mitigate the disadvantages stemming from forum shopping.

20.

Representing a compromise between the need to guarantee a certain degree of legal certainty whilst protecting the legitimate expectations of parties by establishing fixed connecting factors and the wish to retain some flexibility where the application of those factors produces results which are not considered appropriate, the Rome II Regulation follows the same lines as the solutions adopted thus far in modern private international law.

21.

The mechanism for determining the law applicable to non-contractual obligations can be described schematically as follows.

22.

The Rome II Regulation adopts a number of fixed connecting factors. In this respect, a feature of the regulation is that in the absence of a choice expressed by the parties as to the law applicable to non-contractual obligations (see Article 14), it lays down, on the one hand, a general rule (Article 4) and, on the other, five special conflict-of-law rules (Articles 5 to 9 ( 6 ) of the regulation).

23.

With regard to the general rule, which alone is relevant in the present case, it is clear from the proposal for a regulation on the law applicable to non-contractual obligations, presented on 22 July 2003, ( 7 ) that the primary objective of the Rome II Regulation was to improve the predictability of outcomes with a view to legal certainty.

24.

It is thus significant that, unlike the connecting factor adopted in the Convention on the law applicable to non-contractual obligations, opened for signature in Rome on 19 June 1980, ( 8 ) which in principle designated as the applicable law the law of the country most closely connected with the situation in question, the Rome II Regulation clearly opts, in Article 4(1) thereof, for the fixed connecting factor of the place in which the damage occurs (locus damni).

25.

It should also be noted that, unlike the connecting factors for jurisdiction adopted by the Brussels Convention and the Brussels I Regulation, which give the victim of damage a choice of jurisdiction between the courts of the place of the event giving rise to the damage and the place of the damage, the Rome II Regulation adopts a single connecting factor.

26.

In this respect, it is clear from the travaux préparatoires for the Rome II Regulation that the proposals for amendments presented by the European Parliament, which sought to introduce greater flexibility, ( 9 ) were rejected by the Council of the European Union and the Commission, which considered that Article 4 satisfies both ‘the requirement of legal certainty and the need to do justice in individual cases’.

27.

By choosing the locus damni as the connecting factor, the Rome II Regulation thus opts for a classic conflict-of-law rule from private international law, which undoubtedly has several advantages.

28.

First, that connecting rule is, in accordance with the objectives set out in recital 16 in the preamble to the Rome II Regulation, ( 10 ) considered to create a fair balance between the interests of the parties. The law of the place in which the damage occurs is a neutral law which does not favour either the perpetrator of the damage or the victim.

29.

Whilst, as several writers have noted, ( 11 ) it is true that the determination of the applicable law by reference to the place in which the damage occurs may be entirely fortuitous and unforeseeable in some situations — which ultimately undermines the objective of the foreseeability of solutions pursued by the regulation — this drawback is far from insurmountable. It should be stressed that the choice of the applicable law of the place in which the damage occurs can always be set aside in favour of the place of residence where the victim and the person liable have their habitual residence in the same country (Article 4(2) of the Rome II Regulation) or in favour of the law of another country where it is clear from all the circumstances of the case that the tort/delict is most closely connected with that country (‘exception’ clause in Article 4(3) of the regulation). I will return to this point in the observations below.

30.

Second, the choice of the locus damni is in keeping with a modern approach taken in the law on civil liability, which favours a concept of ‘objective’ civil liability with a mainly compensatory function. According to that approach, the purpose of civil liability is more providing compensation for damage than penalising conduct which is considered objectionable. Accordingly, there is greater emphasis on the place in which the damage occurs than on the place of the event giving rise to the damage. It has also been noted that, among other things, the general rule in Article 4(1) of the Rome II Regulation, which rejects the jurisdiction of the lex loci delicti commissi, resolves the highly controversial question of the applicable law in the case of ‘complex’ tort or delict characterised by a geographical dissociation of the place of the event giving rise to the damage and the place in which the damage occurs.

31.

What is the meaning of the place in which the damage occurs? This is precisely the question raised by this request for a preliminary ruling.

B – The questions referred for a preliminary ruling

32.

As the referring court has mentioned, the choice of the law applicable to the facts of the case is likely to have important consequences. There is a clear interest in the law applicable to a claim for compensation coming under one national law rather than another. More specifically, the existence of a right to compensation for damage claimed by the family members of the person who has died in the accident at issue in the main proceedings, the classification of that damage and its compensable character are largely dependent on the choice of the applicable substantive law.

33.

In this regard, although all national legal systems appear to recognise the existence of rights to compensation for the family members of the deceased person, consideration must be given to the significant differences which exist between the laws of the Member States with respect to the classification, nature and extent of the damage for which compensation may be awarded to the survivors of a person who has died in an accident.

34.

The national rules governing non-contractual liability, which, depending on the case, permit compensation for damage suffered indirectly or require a direct infringement of a legally protected interest, clearly have structural differences. In addition, in the various national laws, rights to compensation for damage paid to the family members of the deceased person, whether material or non-material, are regarded in some cases as autonomous rights (in jure proprio) and in some cases as rights ancillary to those of the deceased person.

35.

As Advocate General Darmon stated in his Opinion in Dumez France and Tracoba, ( 12 ) the nature of ricochet damage is certainly one of the most delicate and polemical questions of the law of liability, as it is envisaged by some as the projection onto an indirect victim of damage suffered by an initial victim, while for others it is, on the contrary, entirely separate damage. ( 13 ) Furthermore, that question would not arise in the Member States which do not recognise a right to compensation for damage sustained indirectly and thus are not familiar with the concept of ricochet damage. ( 14 )

36.

With regard to traffic accidents, I wish to make clear, moreover, that many Member States ( 15 ) will, despite the entry into force of the Rome II Regulation and in accordance with Article 28(1) of the regulation, ( 16 ) continue to apply the Convention on the Law Applicable to Traffic Accidents, concluded in The Hague on 4 May 1971, ( 17 ) which adopts as the rule for determining the applicable law the rule of lex loci delicti commissi, without it being possible for the parties concerned to choose another law which provides for connecting factors other than those adopted in Article 4 of the Rome II Regulation. ( 18 ) This shows just how complex the issue of determining the applicable law in actions seeking compensation for damage suffered as a result of a traffic accident may prove. ( 19 )

37.

Staying with the main proceedings, according to the information provided by the referring court, the relevant Italian legislation, Articles 2043 and 2059 of the Italian Civil Code, as interpreted by the Corte Suprema di Cassazione, grants particularly extensive compensation for damage sustained by the family members of a person who has died in an accident, and in particular where the person in question died as a result of a traffic accident. Under Italian law, damage resulting from the death of a family member would be damage sustained directly (in jure proprio) by that family member. It seems to follow that the relationship of obligation between the deceased family member and the person found liable for the damage (or, where it is not possible to identify that person, the body responsible for providing compensation to the family member) is independent of the relationship between the deceased person and that body.

38.

However, in the present case, despite its apparent simplicity, the criterion of the place in which the damage occurs which characterises the general rule for determining the law applicable to contractual obligations under Article 4(1) of the Rome II Regulation has given rise to difficulties of interpretation.

39.

There are essentially two opposing views in the main proceedings.

40.

According to the first view, supported by the Austrian Government, material and non-material damage suffered by the family members of a person who has died in another Member State does not necessarily constitute indirect consequences of the tort/delict for the purposes of Article 4(1) of the Rome II Regulation. It would follow in particular that, because it is based on an obligation that is distinct from the obligation as between the opposing party and the person who died in the accident, a claim for compensation in respect of material rights claimed by the close relatives of a person who has died as a result of a traffic accident which occurred in the State of the court seised must be assessed by reference to the law of the place in which the damage sustained by those relatives occurred, namely the place of their habitual residence, unless it can be demonstrated that, in accordance with Article 4(3) of the Rome II Regulation, it is clear from all the circumstances of the case that there are manifestly closer connections with another country.

41.

According to the second view, supported in particular by the interveners in the main proceedings and the Commission, the damage sustained, in their country of residence, by the close relatives of a person who has died in a road accident which occurred in the State of the court seised must be regarded as constituting indirect consequences of the damage suffered by the immediate victim of the accident. The term ‘country in which the damage occurs’ must be interpreted as referring to the place which caused the damage, which, in the main proceedings, is the place of the road accident.

42.

As the Commission has suggested, it seems appropriate to reverse the order in which the questions asked by the referring court are examined.

43.

Article 4(1) of the Rome II Regulation provides, in its second part, that the place in which the indirect consequences of the tort/delict occur is not relevant in determining the law applicable to non-contractual obligations. Consequently, it is necessary first to answer the question whether Article 4(1) of the Rome II Regulation must be interpreted as meaning that the damage sustained, in their country of residence, by the close relatives of a person who has died in a road accident which occurred in the State of the court seised constitutes ‘damage’ within the meaning of the first part of that provision or ‘indirect consequences’ of the tort/delict within the meaning of the first part of that provision.

44.

It is in the light of the answer to this first question that it will then be necessary to define the term ‘country in which the damage occurs’ with respect to a claim for compensation for material and non-material damage suffered by the family members of a person who has died as the result of an accident.

1. First aspect (second question): classification of material and non-material damage sustained, in their country of residence, by the close relatives of a person who has died as a result of a road traffic accident which occurred in the State of the court seised

45.

Article 4(1) of the Rome II Regulation provides that the law applicable to a non-contractual obligation arising out of a tort/delict is the law of the country in which the damage occurs. As is clear from the clarifications explicitly given in that provision, the place in which the damage occurs must be distinguished, first, from the place in which the event giving rise to the damage claimed occurred and, second, the place in which the indirect consequences of the tort/delict occur.

46.

It seems clear from the travaux préparatoires, and in particular from the report accompanying the proposal for the Rome II Regulation, that Article 4(1) takes as the basic rule the law of the place where the direct damage arises or is likely to arise. ( 20 )

47.

The report also states, taking the specific example of a traffic accident, that ‘the place of the direct damage is the place where the collision occurs, irrespective of financial or non-material damage sustained in another country’. ( 21 )

48.

In that report the Commission made an explicit reference to the case-law of the Court on the interpretation of Article 5(3) of the Brussels Convention, ( 22 ) a provision which, like Article 5(3) of the Brussels I Regulation, makes a distinction between direct damage and indirect damage.

49.

That explicit reference to the Brussels I Regulation appears in the Explanatory Memorandum for the Rome II Regulation, which states, in recital 7, that the substantive scope and the provisions of those two regulations must be consistent.

50.

However, I must point out that, as the Court has repeatedly held, ( 23 ) the rule of special jurisdiction in Article 5(3) of the Brussels Convention is based on the existence of a particularly close connecting factor between the dispute and courts other than those of the State of the defendant’s domicile, with a view, ultimately, to the sound administration of justice and the efficacious conduct of the proceedings. To this effect, it has been noted that the centralisation of points raised within a single court or tribunal stemmed in particular from an objective need as regards evidence or the conduct of the proceedings. ( 24 )

51.

This imperative, which has a clear benefit for determining the court having jurisdiction, does not necessarily hold in the same way for the determination of the applicable law. The Court has thus always stressed the need to avoid the multiplication of bases of jurisdiction as regards the same legal relationship and the finding that the courts for the place where the harmful event occurred are usually the most appropriate for deciding the case, in particular on the grounds of proximity and ease of taking evidence. ( 25 )

52.

However, I consider that, although the objectives pursued by each of those legal acts are somewhat different, the concepts referred to in the Rome II Regulation must, as far as possible, be understood by reference to the interpretations adopted in connection with the Brussels Convention or the Brussels I Regulation. A degree of parallelism must be established in the interpretation of those notions in so far as the legal instruments all pursue an objective of the foreseeability of the solutions adopted.

53.

What findings can be inferred from the case-law on the interpretation of Article 5(3) of the Brussels Convention and of the Brussels I Regulation?

54.

Several cases should be considered.

55.

In Dumez France and Tracoba, ( 26 ) the Court had to give a ruling on the expression ‘place where the damage occurred’ in the context of proceedings brought in France by two French companies against banks established in Germany seeking compensation for the financial loss which they claimed to have sustained as a result of the insolvency of some of their subsidiaries, which were themselves established in Germany, allegedly caused by the cancellation by the banks of the loans granted to the subsidiaries with a view to the implementation of a property development project.

56.

Requested to rule on the nature of the alleged loss, the Court considered that the harm alleged by the parent companies was merely the indirect consequence of the financial losses initially suffered by their subsidiaries following cancellation of the loans and the subsequent suspension of the works. In this regard the Court held that ‘in a case such as this, the damage alleged is no more than the indirect consequence of the harm initially suffered by other legal persons who were the direct victims of damage which occurred at a place different from that where the indirect victim subsequently suffered harm’. ( 27 )

57.

Going on to consider whether the expression ‘place where the damage occurred’ within the meaning of the judgment in Bier, Mines de potasse d’Alsace (21/76, EU:C:1976:166), covered the place where the indirect victims of the damage suffered harmful financial consequences, the Court ruled that although, by virtue of that judgment, that expression may refer to the place where the damage occurred, the latter concept can be understood only as indicating the place where the event giving rise to the damage, and entailing tortious, delictual or quasi-delictual liability, directly produced its harmful effects upon the person who is the immediate victim of that event. ( 28 ) Against that background, the Court stated that, whilst the place where the initial damage manifested itself is usually closely related to the other components of the liability, in most cases the domicile of the indirect victim is not so related. ( 29 )

58.

This approach was subsequently confirmed by the judgment in Marinari, ( 30 ) a case to which the Commission expressly referred in its proposal for a regulation of 22 July 2003 ( 31 ) and which concerned the question whether the expression ‘place in which the damage occurred’ means only the place in which physical harm was caused to persons or things or whether it also means the place, possibly in other countries, in which all the damage to the assets occurred.

59.

The Court held, in that case too, that whilst it has been recognised that the term ‘place where the harmful event occurred’ within the meaning of Article 5(3) of the Brussels Convention may cover both the place where the damage occurred and the place of the event giving rise to it, that term cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually arising elsewhere. Consequently, that concept cannot be construed as including the place where the victim claims to have suffered financial damage following upon initial damage arising and suffered by him in another Contracting State. ( 32 )

60.

In Shevill and Others (C‑68/93, EU:C:1995:61), in which the Court was asked to interpret the expression ‘place where the harmful event occurred’ in order to establish which courts had jurisdiction to hear an action for damages for harm caused by the publication of a defamatory newspaper article in several Member States, the Court held that the observations it had made in Bier, ‘Mines de potasse d’Alsace’ and Dumez France and Tracoba (C‑220/88, EU:C:1990:8), in relation to physical or pecuniary loss or damage applied equally in the case of loss or damage other than physical or pecuniary.

61.

It is interesting to note that, with regard to damage which occurred in the places where the publication is distributed, the Court concluded that Article 5(3) of the Brussels Convention had to be interpreted as meaning that the victim may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised. In such a case, there may be considered to be not one, but several instances of initial damage.

62.

In Kronhofer (C‑168/02, EU:C:2004:364), the question was whether the expression ‘place where the harmful event occurred’ could be construed as covering the place where the victim was domiciled in the sense of the place where ‘his assets are concentrated’, so that the victim was entitled to bring an action for recovery of damages in the courts of that territory. That question arose in the particular context of an action for recovery of financial loss suffered by an individual as a result of the liquidation of stock exchange transactions involving certain of his assets which he had previously invested in a Contracting State which was not the State of his domicile.

63.

The Court held that that question should be answered in the negative.

64.

Recalling the principles identified in the judgment in Marinari (C‑364/13, EU:C:1995:289), it ruled that the expression ‘place where the damage or the harmful event occurred’ could not be construed so extensively as to encompass any place where the adverse consequences can be felt of an event actually arising elsewhere. ( 33 ) In support of that finding, the Court held that such an interpretation would mean that the determination of the court having jurisdiction would depend on matters that were uncertain, such as the place where the victim’s ‘assets are concentrated’ and would thus run counter to the strengthening of the legal protection of persons established in the European Union. ( 34 )

65.

Lastly, more recently and on this occasion ruling on the interpretation of Article 5(3) of the Brussels I Regulation, in Zuid-Chemie (C‑189/08, EU:C:2009:475), which concerned a dispute between an undertaking manufacturing fertiliser and an undertaking which provided the raw materials necessary for the manufacture of the fertiliser concerning the delivery of contaminated goods, the Court found that the words ‘place where the harmful event occurred’ covered the place where the initial damage occurred as a result of the normal use of the product for the purpose for which it was intended.

66.

In my view, the case-law developed by the Court in connection with the interpretation of Article 5(3) of the Brussels Convention and the Brussels I Regulation is therefore perfectly relevant, especially since, as the Commission and the Portuguese Government have rightly pointed out, the expression ‘place where the harmful event occurred’ (Article 5(3) of the Brussels Convention and of the Brussels I regulation), which covers not only the place of the event giving rise to the damage, but also the place where the damage materialised, is broader than the expression ‘[country] in which the damage occurs’ (Article 4(1) of the Rome II Regulation).

67.

It follows from that case-law that the damage sustained, in their country of residence, by the close relatives of a person who has died in a road traffic accident which occurred in the State of the court seised constitutes ‘indirect consequences’ of the damage initially suffered by the immediate victim of the accident.

68.

Furthermore, as I have previously mentioned, it seems that the distinction drawn between the event giving rise to the damage and the damage itself stems more from a wish to favour an objective approach to liability than a wish to broaden the nature of the damage covered by that provision.

69.

Lastly, it should be noted that recital 17 in the preamble to the Rome II Regulation states that ‘in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively’.

70.

The only relevant factor in determining the law applicable to an action for compensation therefore seems to be the place where the direct damage occurs, irrespective of the classifications adopted in national law regarding the nature or the compensable character of that damage.

71.

Ultimately, I would therefore be inclined to express a clear preference for the approach suggested by the Commission; this is for several reasons.

72.

First, if we are not to disregard the unifying character of the Rome II Regulation, an autonomous and objective interpretation should be given to the expression ‘country in which the damage occurs’.

73.

As I have already mentioned, the laws of the Member States are characterised by significant differences in terms of the nature and the extent of the damage suffered by a person’s family members. If it were to be considered that the damage referred to in Article 4(1) of the Rome II Regulation actually covers, in addition to the damage suffered directly by the deceased person, all the damage deemed to have been suffered in jure proprio by that person’s survivors, it would be likely that the act to be determined by the court would be split into several relationships which are subject to different laws according to the habitual residence of the person concerned. It can be considered that, by limiting the connecting factors to be taken into account under the general rule laid down in Article 4(1) of the Rome II Regulation (see points 25 and 26 of this Opinion), the legislature also sought to limit the number of laws which could be applied to any situation.

74.

Against this background, the interpretation whereby the general rule under which the expression ‘country in which the damage occurs’ in Article 4(1) of the Rome II Regulation extends to the place of the direct damage — in this case the place of the fatal collision — has the benefit of simplicity and objectivity where all the damage alleged actually originates from the same source. As the referring court itself has mentioned, the application of the law of the place in which the accident occurred in particular prevents the act to be adjudicated on by the court being broken down into a number of different relationships subject to different laws, depending on the place of residence of the designated victims.

75.

Second, this assessment seems to be fully consistent with the foreseeability pursued by the drafting of the Rome II Regulation. In most cases, the person liable is able to anticipate the consequences in other countries of his conduct or of the conduct of persons for whom he is responsible. Similarly, the victim is generally informed of the legal context to which he was exposed or exposed his property. In other words, both the person liable and the victim were informed and took the necessary steps, in particular with regard to insurance, in connection with the applicable law in the country or countries in which damage might potentially occur. ( 35 )

76.

Third, the general rule for determining the applicable law in the Rome II Regulation is, unlike other rules, ( 36 ) characterised by neutrality. Taking the example of the material damage suffered by the survivors of a person who has died as a result of a traffic accident, it may be considered that the neutrality of the law would be jeopardised in so far as that damage is still located in the victim’s place of residence.

77.

Fourth, such an interpretation would also seem to be consistent with the other idea underlying connecting factors in private international law, namely the idea of proximity, which is intended, as far as possible, to connect a situation to the law of the country with which it is most closely connected. Whilst the place of the accident is undeniably related to the other components of the liability, the domicile of the indirect victim is not necessarily so related. ( 37 )

78.

Taking the example of the main proceedings, it should be noted that, in the absence of the identification of the vehicle responsible for the fatal collision, the proceedings brought against the insurance company Allianz, in its capacity as an undertaking designated by the Guarantee Fund for victims of road traffic accidents, were specifically made possible by Italian law. ( 38 )

79.

Lastly, it must be stated that the Rome II Regulation introduces corrective mechanisms which make it possible, in several respects, to avoid the apparent rigidity of the rule of the place in which the damage occurs.

80.

First, the lex locus damni is not applicable where the person liable and the victim of the damage have their habitual residence in the same country. In that case, the law of that country is applicable. That derogation, which is intended to give primacy to the law of the country with which the situation in question has greater proximity, avoids purely fortuitous connecting situations and is very valuable in the case of traffic accidents for example. To illustrate this scenario, one could take the example of a collision between two vehicles registered in Germany whose drivers both reside in Germany, which occurred in Denmark in the course of a daily goods transport shuttle. In this case, the lex locus damni can be disapplied in favour of German law.

81.

Second, the rule laid down in Article 4(1) of the Rome II Regulation can be disregarded under Article 4(3) of that regulation where it produces unreasonable results, in favour of the law of the country with which the situation in question is manifestly most closely connected. That escape clause makes it possible, for example where the person liable and the person sustaining damage do not have their habitual residence in the same country, to apply the law of the country which is considered to be the centre of gravity of the situation at issue. ( 39 ) Such a clause would prove its usefulness if it were established, for example, that, unlike the situation at issue in the main proceedings, the residence of the immediate victim of the accident, the residence of the person presumed to be responsible or any other circumstance surrounding the occurrence of that accident are outside the country in which the accident occurred and relate to another country.

82.

Lastly, although the lex loci damni may, in some circumstances, be considered to be unfavourable where the more or less direct victims have their habitual residence in a country other than the country in which the accident occurred, recital 33 in the preamble to the Rome II Regulation specifically requests the court seised to take into account, when quantifying damages for personal injury, ‘all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention’. The court is therefore requested, as far as possible, to take into account, in particular in assessing damage suffered by persons who are not resident in the country where the fatal accident occurred, differences in the standard of living and the expenses actually incurred or borne by those victims in their country of residence.

2. Second aspect: the term ‘[country] in which the damage occurs’

83.

As is evident from the answer to the second question, since the damage sustained by the close relatives of the victim of an accident constitutes the indirect consequences of that accident, the place in which the damage occurs is not at all relevant in determining the applicable law. The term ‘place in which the damage occurs’ must, further to the case-law on the Brussels Convention and the Brussels I Regulation, be understood as meaning the place of the occurrence of the event, in this case the road accident, which directly produced its harmful effects upon the person who is the immediate victim of that event.

84.

In any event, I take the view that, in the specific circumstances of the present case, the term ‘country in which the damage occurs’ must be understood as the place where the road accident occurred. That term cannot be understood as covering places of other damage suffered by the very fact of the accident, whether by the direct victim of the accident or by third-party close relatives of the victim. It does not matter in this context whether the damage is material or non-material.

IV – Conclusion

85.

In the light of all the foregoing considerations, it is proposed that the questions asked by the Tribunale di Trieste be answered as follows:

Article 4(1) 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 (‘Rome II’) must be interpreted as meaning that the damage sustained, in their State of residence, by the close relatives of a person who has died as a result of a road traffic accident which occurred in the State of the court seised constitutes ‘indirect consequences’ within the meaning of that provision. Consequently, the term ‘the [country] in which the damage occurs’ for the purposes of that provision must be interpreted, in respect of a road accident, as referring to the place where the event which caused the damage, namely the road accident, directly produced its harmful effects upon the person who is the immediate victim of that event.


( 1 )   Original language: French.

( 2 )   Regulation of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (‘Rome II’) (OJ 2007 L 199, p. 40, ‘the Rome II Regulation’).

( 3 )   It should be noted that, at present, not only has the Court not yet had an opportunity to give a ruling on the scope of that provision, but it has not given a substantive interpretation of the Rome II Regulation more broadly. With the exception of Homawoo (C‑412/10, EU:C:2011:747), which concerned the application ratione temporis of that regulation, the Court has thus far merely made reference to the regulation (see judgments in Football Dataco and Others, C‑173/11, EU:C:2012:642, and Kainz, C‑45/13, EU:C:2014:7). Nevertheless, an interpretation of Article 4 of the Rome II Regulation has been requested in several cases currently pending before the Court (see, in particular, the Opinion of Advocate General Szpunar in Prüller-Frey, C‑240/14, EU:C:2015:325; ERGO Insurance and Gjensidige Baltic, C‑359/14 and C‑475/14, EU:C:2015:630, and Verein für Konsumenteninformation, C‑191/15).

( 4 )   Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1, ‘the Brussels I Regulation’).

( 5 )   See, in this regard, the first attempts to standardise the conflict-of-law rules in non-contractual matters in 1972 by the preliminary draft Community Convention on the law applicable to contractual and non-contractual obligations (Revue critique de droit international privé, 1973, p. 209).

( 6 )   The special rules laid down by those provisions relate respectively to ‘product liability’, ‘unfair competition and acts restricting free competition’, ‘environmental damage’, ‘infringement of intellectual property rights’ and ‘industrial action’.

( 7 )   COM(2003) 427 final, paragraph 2.1 of the proposal.

( 8 )   OJ 1980 L 266, p. 1. See in this regard the general rule for determining the law applicable to the contract in the absence of a choice by the parties under Article 4 of that Convention.

( 9 )   See, in particular, the Report of the Parliament’s Committee on Legal Affairs of 27 June 2005 on the proposal for a regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations (‘Rome II’) (COM(2003)0427 — C5-0338/2003 — 2003/0168(COD)), which proposed the insertion of a provision under which ‘[i]n the case of personal injuries arising out of traffic accidents, and with a view to the motor insurance directive, the court seised and the liable driver’s insurer should, for the purposes of determining the type of claim for damages and calculating the quantum of the claim, apply the rules of the individual victim’s place of habitual residence unless it would be inequitable to the victim to do so. With regard to liability, the applicable law shall be the law of the place where the accident occurred.’

( 10 )   According to that recital, ‘[u]niform 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 person who has sustained damage ...’.

( 11 )   See, for example, Boskovic, O., ‘Loi applicable aux obligations non contractuelles (matières civile et commerciale)’, Répertoire de droit européen, updated in September 2010, paragraph 26.

( 12 )   C‑220/88, EU:C:1989:595.

( 13 )   Ibidem, points 23 and 24.

( 14 )   See, for a general survey of the national legislation in force at the material time in this case, the explanation given in points 34 to 38 of the Opinion cited above.

( 15 )   These are the Kingdom of Belgium, the Czech Republic, the Kingdom of Spain, the French Republic, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Republic of Slovenia and the Slovak Republic.

( 16 )   Under that provision, ‘[t]his Regulation shall not prejudice the application of international conventions to which one or more Member States are parties at the time when this Regulation is adopted and which lay down conflict-of-law rules relating to non-contractual obligations’.

( 17 )   For an illustration of the application of that Convention despite the entry into force of the Rome II Regulation, see judgment in Haasová (C‑22/12, EU:C:2013:692, paragraph 36).

( 18 )   To that effect, the First Chamber of the Cour de Cassation (Court of Cassation, France) recently ruled, in a case which has some similarities with the main proceedings, that the Convention had primacy over the Rome II Regulation (judgment of the Cour de Cassation, First Civil Chamber, 30 April 2014, No 13-11.932, ECLI:FR:CCASS:2014:C100428).

( 19 )   For an overview of the questions raised, see in particular Malatesta, A., ‘The Law Applicable to Traffic Accidents’, The Unification of Choice of Law Rules on Torts and Other Non-Contractual Obligations in Europe, 2006, p. 85 to 106; Kadner Graziano, T., The Rome II Regulation and the Hague Conventions on Traffic Accidents and Product Liability — Interaction, Conflicts and Future Perspectives, Nederlands Internationaal Privaatrecht. 26e jaarg. 2008, afl. 4, p. 425 to 429; von Hein, J., ‘Article 4 and Traffic Accidents’, The Rome II Regulation on the law applicable to non-contractual obligations, 2009, p. 153 to 173; Nagy, C.I., ‘The Rome II Regulation and Traffic Accidents: Uniform Conflict Rules with Some Room for Forum Shopping — How So?’, Journal of Private International Law, vol. 6, 2010, No 1, p. 93-108, and Papettas, J., ‘Direct Actions Against Insurers of Intra-Community Cross Border Traffic Accidents: Rome II and the Motor Insurance Directives’, Journal of private international law, vol. 8, 2012, No 2, p. 297 to 321.

( 20 )   See COM(2003) 427 final of 22 July 2003, p. 12.

( 21 )   Idem.

( 22 )   Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed in Brussels on 27 September 1968 (OJ 1979 C 59, p. 1), as amended by the successive conventions relating to the accession of new Member States to that Convention (‘the Brussels Convention’).

( 23 )   See judgments in Bier, Mines de potasse d’Alsace (C‑21/76, EU:C:1976:166, paragraph 11); Marinari (C‑364/93, EU:C:1995:289, paragraph 10 et seq.), and Shevill and Others (C‑68/93, EU:C:1995:61, paragraph 19 et seq.).

( 24 )   See, to that effect, judgment in Kronhofer (C‑168/02, EU:C:2004:364, paragraph 18).

( 25 )   See, inter alia, judgment in DFDS Torline (C‑18/02, EU:C:2004:74, paragraph 27 and the case-law cited).

( 26 )   C‑220/88, EU:C:1990:8.

( 27 )   Judgment in Dumez France and Tracoba, C‑220/88, EU:C:1990:8, paragraphs 13 and 14.

( 28 )   Judgment in Dumez France and Tracoba, C‑220/88, EU:C:1990:8, paragraph 20.

( 29 )   Judgment in Dumez France and Tracoba, C‑220/88, EU:C:1990:8, paragraph 21.

( 30 )   Judgment in Marinari, C‑364/93, EU:C:1995:289.

( 31 )   See page 12 of that proposal.

( 32 )   Judgment in Marinari (C‑364/93, EU:C:1995:289, paragraphs 14 and 15).

( 33 )   Judgment in Kronhofer (C‑168/02, EU:C:2004:36, paragraph 19).

( 34 )   Judgment in Kronhofer (C‑168/02, EU:C:2004:36, paragraph 20).

( 35 )   See Calliess, G.-P., Rome Regulations: Commentary on the European Rules of the Conflict of Laws, 2nd ed., Wolters Kluwer, 2015, p. 498.

( 36 )   See in particular Articles 6 (on acts of competition) and 7 (on environmental damage) of the Rome II Regulation.

( 37 )   See, by analogy, judgment in Dumez France and Tracoba (C‑220/88, EU:C:1990:8, paragraph 21).

( 38 )   According to the decision to refer the case, Article 283(a) and (c) of the Italian Private Insurance Code provides that, where it has not been possible to identify the vehicle which caused the accident, the Guarantee Fund for victims of road traffic accidents is to pay compensation for the damage caused as a result of a traffic accident through the intermediary of designated insurance companies located throughout Italy.

( 39 )   See the report accompanying the proposal for the Rome II Regulation, cited above, paragraph 13.

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