31.7.2007   

EN

Official Journal of the European Union

L 199/1

(1)

The Community has set itself the objective of maintaining and developing an area of freedom, security and justice in which the free movement of persons is ensured. For the gradual establishment of such an area, the Community is to adopt, inter alia, measures in the field of judicial cooperation in civil matters having cross-border implications and needed for the proper functioning of the internal market.

(2)

According to Article 65(c) of the Treaty, those measures are to include those eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.

(3)

In this respect, the Community has, among other measures, already adopted Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (3), Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (4), Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (5), Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (6) and Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (7).

(4)

The European Council meeting in Tampere on 15 and 16 October 1999 invited the Council and the Commission to establish common procedural rules for simplified and accelerated cross-border litigation on small consumer and commercial claims.

(5)

On 30 November 2000, the Council adopted a joint programme of the Commission and the Council of measures for the implementation of the principle of mutual recognition of decisions in civil and commercial matters (8). The programme refers to simplifying and speeding up the settlement of cross-border litigation on small claims. This was taken forward by the Hague Programme (9), adopted by the European Council on 5 November 2004, which called for work on small claims to be actively pursued.

(6)

On 20 December 2002, the Commission adopted a Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation. The Green Paper launched a consultation on measures concerning the simplification and the speeding up of small claims litigation.

(7)

Many Member States have introduced simplified civil procedures for small claims since costs, delays and complexities connected with litigation do not necessarily decrease proportionally with the value of the claim. The obstacles to obtaining a fast and inexpensive judgment are exacerbated in cross-border cases. It is therefore necessary to establish a European procedure for small claims (European Small Claims Procedure). The objective of such a procedure should be to facilitate access to justice. The distortion of competition within the internal market due to imbalances with regard to the functioning of the procedural means afforded to creditors in different Member States entails the need for Community legislation that guarantees a level playing-field for creditors and debtors throughout the European Union. It should be necessary to have regard to the principles of simplicity, speed and proportionality when setting the costs of dealing with a claim under the European Small Claims Procedure. It is appropriate that details of the costs to be charged be made public, and that the means of setting any such costs be transparent.

(8)

The European Small Claims Procedure should simplify and speed up litigation concerning small claims in cross-border cases, whilst reducing costs, by offering an optional tool in addition to the possibilities existing under the laws of the Member States, which will remain unaffected. This Regulation should also make it simpler to obtain the recognition and enforcement of a judgment given in the European Small Claims Procedure in another Member State.

(9)

This Regulation seeks to promote fundamental rights and takes into account, in particular, the principles recognised by the Charter of Fundamental Rights of the European Union. The court or tribunal should respect the right to a fair trial and the principle of an adversarial process, in particular when deciding on the necessity of an oral hearing and on the means of taking evidence and the extent to which evidence is to be taken.

(10)

For the purposes of facilitating calculation of the value of a claim, all interest, expenses and disbursements should be disregarded. This should affect neither the power of the court or tribunal to award these in its judgment nor the national rules on the calculation of interest.

(11)

In order to facilitate the commencement of the European Small Claims Procedure, the claimant should make an application by filling in a standard claim form and lodging it with the court or tribunal. The claim form should be submitted only to a court or tribunal that has jurisdiction.

(12)

The claim form should be accompanied, where appropriate, by any relevant supporting documents. However, this does not prevent the claimant from submitting, where appropriate, further evidence during the procedure. The same principle should apply to the response by the defendant.

(13)

The concepts of ‘clearly unfounded’ in the context of the dismissal of a claim and of ‘inadmissible’ in the context of the dismissal of an application should be determined in accordance with national law.

(14)

The European Small Claims Procedure should be a written procedure, unless an oral hearing is considered necessary by the court or tribunal or a party so requests. The court or tribunal may refuse such a request. Such refusal may not be contested separately.

(15)

The parties should not be obliged to be represented by a lawyer or another legal professional.

(16)

The concept of ‘counterclaim’ should be interpreted within the meaning of Article 6(3) of Regulation (EC) No 44/2001 as arising from the same contract or facts on which the original claim was based. Articles 2 and 4 as well as Article 5(3), (4) and (5) should apply, mutatis mutandis, to counterclaims.

(17)

In cases where the defendant invokes a right of set-off during the proceedings, such claim should not constitute a counterclaim for the purposes of this Regulation. Therefore, the defendant should not be obliged to use standard Form A, as set out in Annex I, for invoking such a right.

(18)

The Member State addressed for the purposes of the application of Article 6 is the Member State where service is to be effected or to where the document is to be dispatched. In order to reduce costs and delays, documents should be served on the parties primarily by postal service attested by an acknowledgment of receipt, including the date of receipt.

(19)

A party may refuse to accept a document at the time of service or by returning the document within one week if it is not written in, or accompanied by a translation into, the official language of the Member State addressed (or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected or to where the document is to be dispatched) or a language which the addressee understands.

(20)

In the context of oral hearings and the taking of evidence, the Member States should encourage the use of modern communication technology subject to the national law of the Member State where the court or tribunal is situated. The court or tribunal should use the simplest and least costly method of taking evidence.

(21)

The practical assistance to be made available to the parties should include technical information concerning the availability and the filling in of the forms.

(22)

The information about procedural questions can also be given by the court or tribunal staff in accordance with national law.

(23)

As the objective of this Regulation is to simplify and speed up litigation concerning small claims in cross-border cases, the court or tribunal should act as soon as possible even when this Regulation does not prescribe any time limit for a specific phase of the procedure.

(24)

For the purposes of calculating time limits as provided for in this Regulation, Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (10) should apply.

(25)

In order to speed up the recovery of small claims, the judgment should be enforceable notwithstanding any possible appeal and without the condition of the provision of a security except as provided for in this Regulation.

(26)

Any reference in this Regulation to an appeal should include any possible means of appeal available under national law.

(27)

The court or tribunal must include a person qualified to serve as a judge in accordance with national law.

(28)

Whenever the court or tribunal is required to set a time limit, the party concerned should be informed of the consequences of not complying with it.

(29)

The unsuccessful party should bear the costs of the proceedings. The costs of the proceedings should be determined in accordance with national law. Having regard to the objectives of simplicity and cost-effectiveness, the court or tribunal should order that an unsuccessful party be obliged to pay only the costs of the proceedings, including for example any costs resulting from the fact that the other party was represented by a lawyer or another legal professional, or any costs arising from the service or translation of documents, which are proportionate to the value of the claim or which were necessarily incurred.

(30)

In order to facilitate recognition and enforcement, a judgment given in a Member State in the European Small Claims Procedure should be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition.

(31)

There should be minimum standards for the review of a judgment in situations where the defendant was not able to contest the claim.

(32)

Having regard to the objectives of simplicity and cost-effectiveness, the party seeking enforcement shall not be required to have an authorised representative or a postal address in the Member State of enforcement, other than with agents having competence for the enforcement procedure in accordance with the national law of that Member State.

(33)

Chapter III of this Regulation should also apply to the determination of costs and expenses made by officers of the court or tribunal due to a judgment given pursuant to the procedure specified in this Regulation.

(34)

The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (11).

(35)

In particular, power should be conferred on the Commission to adopt measures necessary to update or make technical amendments to the forms set out in the Annexes. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation and/or to supplement this Regulation by the addition of new non-essential elements, they should be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(36)

Since the objectives of this Regulation, namely, the establishment of a procedure to simplify and speed up litigation concerning small claims in cross-border cases, and to reduce costs, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Regulation, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary to achieve those objectives.

(37)

In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom and Ireland have given notice of their wish to take part in the adoption and application of this Regulation.

(38)

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Regulation and is not bound by it or subject to its application,

(a)

the status or legal capacity of natural persons;

(b)

rights in property arising out of a matrimonial relationship, maintenance obligations, wills and succession;

(c)

bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

(d)

social security;

(e)

arbitration;

(f)

employment law;

(g)

tenancies of immovable property, with the exception of actions on monetary claims; or

(h)

violations of privacy and of rights relating to personality, including defamation.

(a)

the official language of the Member State addressed, or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected or to where the document is to be dispatched; or

(b)

a language which the addressee understands,

(a)

demand further details concerning the claim from the parties within a specified period of time, not exceeding 30 days;

(b)

take evidence in accordance with Article 9; or

(c)

summon the parties to an oral hearing to be held within 30 days of the summons.

(a)

or

(b)

the defendant was prevented from objecting to the claim by reason of force majeure, or due to extraordinary circumstances without any fault on his part,

(a)

a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and

(b)

a copy of the certificate referred to in Article 20(2) and, where necessary, the translation thereof into the official language of the Member State of enforcement or, if there are several official languages in that Member State, the official language or one of the official languages of court or tribunal proceedings of the place where enforcement is sought in conformity with the law of that Member State, or into another language that the Member State of enforcement has indicated it can accept. Each Member State may indicate the official language or languages of the institutions of the European Union other than its own which it can accept for the European Small Claims Procedure. The content of Form D shall be translated by a person qualified to make translations in one of the Member States.

(a)

an authorised representative; or

(b)

a postal address

(a)

the earlier judgment involved the same cause of action and was between the same parties;

(b)

the earlier judgment was given in the Member State of enforcement or fulfils the conditions necessary for its recognition in the Member State of enforcement; and

(c)

the irreconcilability was not and could not have been raised as an objection in the court or tribunal proceedings in the Member State where the judgment in the European Small Claims Procedure was given.

(a)

limit the enforcement proceedings to protective measures;

(b)

make enforcement conditional on the provision of such security as it shall determine; or

(c)

under exceptional circumstances, stay the enforcement proceedings.

(a)

which courts or tribunals have jurisdiction to give a judgment in the European Small Claims Procedure;

(b)

which means of communication are accepted for the purposes of the European Small Claims Procedure and available to the courts or tribunals in accordance with Article 4(1);

(c)

whether an appeal is available under their procedural law in accordance with Article 17 and with which court or tribunal this may be lodged;

(d)

which languages are accepted pursuant to Article 21(2)(b); and

(e)

which authorities have competence with respect to enforcement and which authorities have competence for the purposes of the application of Article 23.

31.7.2007   

EN

Official Journal of the European Union

L 199/23

(1)

The conclusions of the Justice and Home Affairs Council of 28-29 May 2001 considered, regarding common analysis and the improved exchange of statistics on asylum and migration, that there is a need for a comprehensive and coherent framework for future action on improving statistics.

(2)

In April 2003, the Commission released a Communication to the Council and to the European Parliament, setting out an Action Plan for the collection and analysis of Community Statistics in the field of migration. This included a number of important changes designed to improve the completeness and degree of harmonisation of these statistics. Under the Action Plan, the Commission aimed to propose legislation on Community statistics on migration and asylum.

(3)

The Thessaloniki European Council of 19 and 20 June 2003 concluded that more effective mechanisms were needed for the collection and analysis of information on migration and asylum in the European Union.

(4)

The European Parliament in its resolution of 6 November 2003 (3) on the abovementioned Communication from the Commission noted that legislation was required to ensure the production of comprehensive statistics necessary for the development of fair and effective Community policies on migration. The resolution supports the Commission's plans to propose legislation for migration and asylum statistics.

(5)

Enlargement of the European Union has brought an added geographical and political dimension to the scale of the phenomena associated with migration. It has also brought a further impetus to the demand for accurate, timely and harmonised statistical information. There is also an increasing need for statistical information regarding the profession, education, qualifications and type of activity of migrants.

(6)

Harmonised and comparable Community statistics on migration and asylum are essential for the development and monitoring of Community legislation and policies relating to immigration and asylum, and to the free movement of persons.

(7)

There is a need to reinforce the exchange of statistical information on asylum and migration and to improve the quality of Community statistical collections and outputs which have, hitherto, taken place on the basis of a series of ‘gentlemen's agreements’.

(8)

It is essential that information be available, throughout the European Union, for the purposes of monitoring the development and implementation of Community legislation and policy. In the main, current practice does not sufficiently ensure, in a uniform manner, regular, timely and rapid delivery and dissemination of harmonised data.

(9)

This Regulation does not cover estimates of the number of persons illegally resident in the Member States. Member States should not provide such estimates or data on such persons to the Commission (Eurostat), although they may be included in population stocks due to surveys.

(10)

Wherever possible, the definitions used for the purposes of this Regulation are taken from the United Nations Recommendations on Statistics of International Migration, the United Nations Recommendations for the Censuses of Population and Housing in the ECE Region or EC legislation, and should be updated following the relevant procedures.

(11)

New Community needs on statistics on migration and asylum render obsolete the provisions of Council Regulation (EEC) No 311/76 of 9 February 1976 on the compilation of statistics on foreign workers (4).

(12)

Regulation (EEC) No 311/76 should therefore be repealed.

(13)

Since the objective of this Regulation to establish common rules for the collection and compilation of Community statistics on migration and international protection cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(14)

Council Regulation (EC) No 322/97 of 17 February 1997 on Community Statistics (5) constitutes the reference framework for the provisions of this Regulation. In particular, it requires conformity to standards of impartiality, reliability, objectivity, scientific independence, cost-effectiveness and statistical confidentiality.

(15)

The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (6).

(16)

In particular, the Commission should be empowered to update the definitions, to decide on the groupings of data and additional disaggregations and to lay down the rules on accuracy and quality standards. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation and to supplement it by the addition of new non-essential elements, they should be adopted in accordance with the regulatory procedure with scrutiny laid down in Article 5a of Decision 1999/468/EC.

(17)

The Statistical Programme Committee, established by Council Decision 89/382/EEC, Euratom of 19 June 1989 establishing a Committee on the Statistical Programmes of the European Communities (7), has been consulted in accordance with Article 3 of that Decision,

(a)

immigration to and emigration from the Member State territories, including flows from the territory of one Member State to that of another Member State and flows between a Member State and the territory of a third country;

(b)

the citizenship and country of birth of persons usually resident in the territory of the Member States;

(c)

administrative and judicial procedures and processes in the Member States relating to immigration, granting of permission to reside, citizenship, asylum and other forms of international protection and the prevention of illegal immigration.

(a)

‘usual residence’ means the place at which a person normally spends the daily period of rest, regardless of temporary absences for purposes of recreation, holiday, visits to friends and relatives, business, medical treatment or religious pilgrimage or, in default, the place of legal or registered residence;

(b)

‘immigration’ means the action by which a person establishes his or her usual residence in the territory of a Member State for a period that is, or is expected to be, of at least 12 months, having previously been usually resident in another Member State or a third country;

(c)

‘emigration’ means the action by which a person, having previously been usually resident in the territory of a Member State, ceases to have his or her usual residence in that Member State for a period that is, or is expected to be, of at least 12 months;

(d)

‘citizenship’ means the particular legal bond between an individual and his or her State, acquired by birth or naturalisation, whether by declaration, choice, marriage or other means according to national legislation;

(e)

‘country of birth’ means the country of residence (in its current borders, if the information is available) of the mother at the time of the birth or, in default, the country (in its current borders, if the information is available) in which the birth took place;

(f)

‘immigrant’ means a person undertaking an immigration;

(g)

‘emigrant’ means a person undertaking an emigration;

(h)

‘long-term resident’ means long-term resident as defined in Article 2(b) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (8);

(i)

‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty, including stateless persons;

(j)

‘application for international protection’ means application for international protection as defined in Article 2(g) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (9);

(k)

‘refugee status’ means refugee status as defined in Article 2(d) of Directive 2004/83/EC;

(l)

‘subsidiary protection status’ means subsidiary protection status as defined in Article 2(f) of Directive 2004/83/EC;

(m)

‘family members’ means family members as defined in Article 2(i) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (10);

(n)

‘temporary protection’ means temporary protection as defined in Article 2(a) of Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (11);

(o)

‘unaccompanied minor’ means an unaccompanied minor as defined in Article 2(i) of Directive 2004/83/EC;

(p)

‘external borders’ means external borders as defined in Article 2(2) of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (12);

(q)

‘third-country nationals refused entry’ means third-country nationals who are refused entry at the external border because they do not fulfil all the entry conditions laid down in Article 5(1) of Regulation (EC) No 562/2006 and do not belong to the categories of persons referred to in Article 5(4) of that Regulation;

(r)

‘third-country nationals found to be illegally present’ means third-country nationals who are officially found to be on the territory of a Member State and who do not fulfil, or no longer fulfil, the conditions for stay or residence in that Member State;

(s)

‘resettlement’ means the transfer of third-country nationals or stateless persons on the basis of an assessment of their need for international protection and a durable solution, to a Member State, where they are permitted to reside with a secure legal status.

(a)

immigrants moving to the territory of the Member State, disaggregated as follows:

(b)

emigrants moving from the territory of the Member State disaggregated as follows:

(c)

persons having their usual residence in the Member State at the end of the reference period, disaggregated as follows:

(d)

persons having their usual residence in the territory of the Member State and having acquired during the reference year the citizenship of the Member State and having formerly held the citizenship of another Member State or a third country or having formerly been stateless, disaggregated by age and sex, and by the former citizenship of the persons concerned and by whether the person was formerly stateless.

(a)

persons having submitted an application for international protection or having been included in such an application as a family member during the reference period;

(b)

persons who are the subject of applications for international protection under consideration by the responsible national authority at the end of the reference period;

(c)

applications for international protection having been withdrawn during the reference period.

(a)

persons covered by first instance decisions rejecting applications for international protection, such as decisions considering applications as inadmissible or as unfounded and decisions under priority and accelerated procedures, taken by administrative or judicial bodies during the reference period;

(b)

persons covered by first instance decisions granting or withdrawing refugee status, taken by administrative or judicial bodies during the reference period;

(c)

persons covered by first instance decisions granting or withdrawing subsidiary protection status, taken by administrative or judicial bodies during the reference period;

(d)

persons covered by first instance decisions granting or withdrawing temporary protection, taken by administrative or judicial bodies during the reference period;

(e)

persons covered by other first instance decisions granting or withdrawing authorisation to stay for humanitarian reasons under national law concerning international protection, taken by administrative or judicial bodies during the reference period.

(a)

applicants for international protection who are considered by the responsible national authority to be unaccompanied minors during the reference period;

(b)

persons covered by final decisions rejecting applications for international protection, such as decisions considering applications as inadmissible or as unfounded and decisions under priority and accelerated procedures, taken by administrative or judicial bodies in appeal or review during the reference period;

(c)

persons covered by final decisions granting or withdrawing refugee status taken by administrative or judicial bodies in appeal or review during the reference period;

(d)

persons covered by final decisions granting or withdrawing subsidiary protection status taken by administrative or judicial bodies in appeal or review during the reference period;

(e)

persons covered by final decisions granting or withdrawing temporary protection taken by administrative or judicial bodies in appeal or review during the reference period;

(f)

persons covered by other final decisions, taken by administrative or judicial bodies in appeal or review, granting or withdrawing authorisations to stay for humanitarian reasons under national law concerning international protection during the reference period;

(g)

persons who have been granted an authorisation to reside in a Member State within the framework of a national or Community resettlement scheme during the reference period, where such a scheme is implemented in that Member State.

(a)

the numbers of requests for taking back or taking charge of an asylum seeker;

(b)

the provisions on which the requests referred to in point (a) are based;

(c)

the decisions taken in response to the requests referred to in point (a);

(d)

the numbers of transfers to which the decisions referred to in point (c) lead;

(e)

the number of requests for information.

(a)

third-country nationals refused entry to the Member State's territory at the external border;

(b)

third-country nationals found to be illegally present in the Member State's territory under national laws relating to immigration.

(a)

the number of residence permits issued to persons who are third-country nationals, disaggregated as follows:

(b)

the number of long-term residents at the end of the reference period, disaggregated by citizenship.

(a)

the number of third-country nationals found to be illegally present in the territory of the Member State who are subject to an administrative or judicial decision or act stating or declaring that their stay is illegal and imposing an obligation to leave the territory of the Member State, disaggregated by citizenship of the persons concerned;

(b)

the number of third-country nationals who have in fact left the territory of the Member State, following an administrative or judicial decision or act, as referred to in point (a), disaggregated by the citizenship of the persons returned.

(a)

for statistics required under Article 4 as a whole, disaggregations by:

(b)

for statistics required under Article 4(4), disaggregations by:

(c)

for statistics required under Article 5(1)(a), disaggregations by:

(d)

for statistics required under Article 5(1)(b), disaggregations by:

(e)

for statistics required under Article 6, disaggregations by:

(f)

for statistics required under Article 7, disaggregations by:

(a)

records of administrative and judicial actions;

(b)

registers relating to administrative actions;

(c)

registers of the population of persons or of a particular sub-group of that population;

(d)

censuses;

(e)

sample surveys;

(f)

other appropriate sources.

(a)

updating the definitions set out in Article 2(1);

(b)

defining the categories of groups of country of birth, groups of country of previous and next usual residence and groups of citizenship as provided for in Article 3(1);

(c)

defining the categories of the reasons for the permit as provided for in Article 6(1)(a);

(d)

defining the additional disaggregations and the levels of disaggregations to be applied to the variables as provided for in Article 8;

(e)

laying down the rules on accuracy and quality standards.

31.7.2007   

EN

Official Journal of the European Union

L 199/30

(1)

On 26 October 2004, the Council adopted Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (2) (the Agency).

(2)

A Member State facing circumstances requiring increased technical and operational assistance at its external borders may, without prejudice to Article 64(2) of the Treaty and in accordance with Articles 7 and 8 of Regulation (EC) No 2007/2004, ask the Agency for assistance in the form of coordination, where other Member States are involved.

(3)

Effective management of the external borders through checks and surveillance helps to combat illegal immigration and trafficking in human beings and to prevent any threat to the internal security, public policy, public health and international relations of the Member States. Border control is in the interests not only of the Member State at whose external borders it is carried out but of all Member States which have abolished internal border control.

(4)

Responsibility for the control of the external borders lies with the Member States. Bearing in mind the critical situations which Member States from time to time have to deal with at their external borders, in particular the arrival at points of the external borders of large numbers of third-country nationals trying to enter the territory of the Member States illegally, it may be necessary to assist Member States by providing appropriate and sufficient resources, in particular personnel.

(5)

The current possibilities for providing efficient practical assistance with regard to checking persons at the external borders and the surveillance of the external borders at European level are not considered sufficient, in particular where Member States are faced with the arrival of large numbers of third-country nationals trying to enter the territory of the Member States illegally.

(6)

A Member State should accordingly have the possibility of requesting the deployment, within the framework of the Agency, of Rapid Border Intervention Teams comprising specially trained experts from other Member States on its territory to assist its national border guards on a temporary basis. The deployment of the Rapid Border Intervention Teams will contribute to increasing solidarity and mutual assistance between Member States.

(7)

The deployment of Rapid Border Intervention Teams to provide support for a limited period of time should take place in exceptional and urgent situations. Situations of this kind would arise where a Member State was faced with a mass influx of third-country nationals attempting to enter its territory illegally which required an immediate response and where the deployment of a Rapid Border Intervention Team would contribute to providing an effective response. Rapid Border Intervention Teams are not intended to provide long-term assistance.

(8)

Rapid Border Intervention Teams will depend on the planned duties, availability and frequency of deployment. To ensure the effective operation of the Rapid Border Intervention Teams, Member States should make available an appropriate number of border guards (the Rapid Pool) reflecting in particular the specialisation and size of their own border guard organisations. The Member States should therefore create national pools of experts to help increase the effectiveness of this Regulation. The different sizes of the Member States and the technical specialisation of their border guard organisations should be taken into consideration by the Agency.

(9)

Best practices from many Member States show that knowing the profiles (skills and qualifications) of available border guards before deployment significantly contributes to the efficient planning and conduct of operations. The Agency should therefore determine the profiles and overall number of border guards to be provided for the Rapid Border Intervention Teams.

(10)

A mechanism for the creation of Rapid Border Intervention Teams which offers both the Agency and the Member States sufficient flexibility and ensures that operations are carried out with a high level of efficiency and effectiveness should be established.

(11)

The Agency should, inter alia, coordinate the composition, training and deployment of the Rapid Border Intervention Teams. It is therefore necessary to introduce new provisions in Regulation (EC) No 2007/2004 concerning the role of the Agency with respect to those teams.

(12)

When a Member State is faced with a mass influx of third-country nationals attempting to enter its territory illegally, or another exceptional situation substantially affecting the discharge of national tasks, it may refrain from making its national border guards available for deployment.

(13)

In order to work effectively together with national border guards, the members of the teams should be able to carry out tasks related to the checks of persons at and the surveillance of the external borders while deployed on the territory of the Member State requesting their assistance.

(14)

Similarly, the efficiency of joint operations coordinated by the Agency should be further improved by enabling, on a temporary basis, guest officers from other Member States to carry out tasks related to the checks of persons at and the surveillance of the external borders.

(15)

It is therefore also necessary to introduce new provisions in Regulation (EC) No 2007/2004 concerning the tasks and powers of guest officers deployed on the territory of a Member State at its request within the framework of the Agency.

(16)

This Regulation contributes to the correct application of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (3). To this end, members of the teams and guest officers, while carrying out border checks and surveillance, should not discriminate against persons on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Any measures taken in the performance of their tasks and in the exercise of their powers should be proportionate to the objectives pursued by such measures.

(17)

This Regulation respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. It should be applied in accordance with the Member States’ obligations as regards international protection and non-refoulement.

(18)

This Regulation should be applied with full respect for obligations arising under the international law of the sea, in particular as regards search and rescue.

(19)

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (4) applies to the processing of personal data by the Member States in application of this Regulation.

(20)

As regards Iceland and Norway, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis  (5) which fall within the area referred to in Article 1, point A, of Council Decision 1999/437/EC (6) on certain arrangements for the application of that Agreement.

(21)

As regards Switzerland, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement signed between the European Union, the European Community and the Swiss Confederation concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 4(1) of Council Decisions 2004/849/EC (7) and 2004/860/EC (8).

(22)

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds on the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark should, in accordance with Article 5 of that Protocol, decide within a period of six months after the date of adoption of this Regulation whether it will transpose it in its national law or not.

(23)

This Regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis  (9). The United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application.

(24)

This Regulation constitutes a development of provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis  (10). Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application.

(25)

In this Regulation, the provisions of Article 6(8) and (9) constitute, to the extent that they refer to access being given to the Schengen Information System, provisions building on the Schengen acquis or otherwise related to it within the meaning of Article 3(2) of the 2003 and Article 4(2) of the 2005 Acts of Accession,

1.

‘the Agency’ means the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union;

2.

‘members of the teams’ means border guards of Member States serving with the Rapid Border Intervention Teams other than those of the host Member State;

3.

‘requesting Member State’ means a Member State whose competent authorities request the Agency to deploy Rapid Border Intervention Teams on its territory;

4.

‘host Member State’ means a Member State on the territory of which a deployment of a Rapid Border Intervention Team takes place;

5.

‘home Member State’ means the Member State of which a member of the team is a border guard.

(a)

name and nationality;

(b)

rank; and

(c)

a recent digitised photograph.

1.

Article 1(4) shall be deleted;

2.

the following Article shall be inserted:

‘Article 1a

Definitions

For the purposes of this Regulation, the following definitions shall apply:

3.

in Article 2(1), the following point shall be added:

4.

Article 8(3) shall be replaced by the following:

‘3.   The Agency may acquire technical equipment for checks and surveillance of external borders to be used by its experts and within the framework of the Rapid Border Intervention Teams for the duration of their deployment.’;

5.

the following Articles shall be inserted:

‘Article 8a

Rapid Border Intervention Teams

At the request of a Member State faced with a situation of urgent and exceptional pressure, especially the arrival at points of the external borders of large numbers of third-country nationals trying to enter the territory of that Member State illegally, the Agency may deploy for a limited period one or more Rapid Border Intervention Teams (hereinafter referred to as “team(s)”) on the territory of the requesting Member State for the appropriate duration, in accordance with Article 4 of Regulation (EC) No 863/2007.

Article 8b

Composition of teams

1.   In the event of a situation as described in Article 8a, Member States shall, at the request of the Agency, immediately communicate the number, names and profiles of border guards from their national pool which they are able to make available within five days to be members of a team. Member States shall make the border guards available for deployment at the request of the Agency unless they are faced with an exceptional situation substantially affecting the discharge of national tasks.

2.   When determining the composition of a team for deployment, the Executive Director shall take into account the particular circumstances which the requesting Member State is facing. The team shall be composed in accordance with the operational plan referred to in Article 8e.

Article 8c

Training and exercises

The Agency shall provide border guards who are part of the Rapid Pool, as referred to in Article 4(2) of Regulation (EC) No 863/2007 with advanced training relevant to their tasks and powers and shall conduct regular exercises with those border guards in accordance with the advanced training and exercise schedule referred to in the Agency's annual working programme.

Article 8d

Procedure for deciding on deployment of the teams

1.   A request for deployment of the teams in accordance with Article 8a shall include a description of the situation, possible aims and envisaged needs for the deployment. If required, the Executive Director may send experts from the Agency to assess the situation at the external borders of the requesting Member State.

2.   The Executive Director shall immediately inform the Management Board of a Member State’s request for deployment of the teams.

3.   When deciding on the request of a Member State, the Executive Director shall take into account the findings of the Agency’s risk analyses as well as any other relevant information provided by the requesting Member State or another Member State.

4.   The Executive Director shall take a decision on the request for deployment of the teams as soon as possible and no later than five working days from the date of the receipt of the request. The Executive Director shall simultaneously notify the requesting Member State and the Management Board in writing of the decision. The decision shall state the main reasons on which it is based.

5.   If the Executive Director decides to deploy one or more teams, an operational plan shall immediately be drawn up by the Agency and the requesting Member State in accordance with Article 8e.

6.   As soon as the operational plan has been agreed, the Executive Director shall inform the Member States of the requested number and profiles of border guards which are to be deployed in the teams. This information shall be provided, in writing, to the national contact points designated under Article 8f and shall indicate the date on which the deployment is to take place. A copy of the operational plan shall also be provided to them.

7.   If the Executive Director is absent or indisposed, the decisions related to the deployment of the teams shall be taken by the Deputy Executive Director.

8.   Member States shall make the border guards available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks.

9.   Deployment of the teams shall take place no later than five working days after the date on which the operational plan is agreed between the Executive Director and the requesting Member State.

Article 8e

Operational plan

1.   The Executive Director and the requesting Member State shall agree on an operational plan detailing the precise conditions for deployment of the teams. The operational plan shall include the following:

2.   Any amendments to or adaptations of the operational plan shall require the agreement of both the Executive Director and the requesting Member State. A copy of the amended or adapted operational plan shall immediately be sent by the Agency to the participating Member States.

Article 8f

National contact point

Member States shall designate a national contact point for communication with the Agency on all matters pertaining to the teams. The national contact point shall be reachable at all times.

Article 8g

Coordinating Officer

1.   The Executive Director shall appoint one or more experts from the staff of the Agency to be deployed as coordinating officer. The Executive Director shall notify the host Member State of the appointment.

2.   The coordinating officer shall act on behalf of the Agency in all aspects of the deployment of the teams. In particular, the coordinating officer shall:

3.   In accordance with Article 25(3)f, the Executive Director may authorise the coordinating officer to assist in resolving any disagreement on the execution of the operational plan and deployment of the teams.

4.   In discharging his duties, the coordinating officer shall take instructions only from the Agency.

Article 8h

Costs

1.   The Agency shall fully meet the following costs incurred by Member States in making available their border guards for the purposes mentioned in Articles 8a and 8c:

2.   Detailed rules concerning the payment of the daily subsistence allowance of members of the teams shall be established by the Management Board.’;

6.

Article 10 shall be replaced by the following:

‘Article 10

Tasks and powers of guest officers

1.   Guest officers shall have the capacity to perform all tasks and exercise all powers for border checks or border surveillance in accordance with Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (12), and that are necessary for the realisation of the objectives of that Regulation.

2.   While performing their tasks and exercising their powers guest officers shall comply with Community law and the national law of the host Member State.

3.   Guest officers may only perform tasks and exercise powers under instructions from and, as a general rule, in the presence of border guards of the host Member State.

4.   Guest officers shall wear their own uniform while performing their tasks and exercising their powers. They shall wear a blue armband with the insignia of the European Union and the Agency on their uniforms, identifying them as participating in a joint operation or pilot project. For the purposes of identification vis-à-vis the national authorities of the host Member State and its citizens, guest officers shall at all times carry an accreditation document, as provided for in Article 10a, which they shall present on request.

5.   By way of derogation from paragraph 2, while performing their tasks and exercising their powers, guest officers may carry service weapons, ammunition and equipment as authorised according to the home Member State's national law. However, the host Member State may prohibit the carrying of certain service weapons, ammunition and equipment, provided that its own legislation applies the same prohibition to its own border guards. The host Member State shall, in advance of the deployment of the guest officers, inform the Agency of the permissible service weapons, ammunition and equipment and of the conditions for their use. The Agency shall make this information available to Member States.

6.   By way of derogation from paragraph 2, while performing their tasks and exercising their powers, guest officers shall be authorised to use force, including service weapons, ammunition and equipment, with the consent of the home Member State and the host Member State, in the presence of border guards of the host Member State and in accordance with the national law of the host Member State.

7.   By way of derogation from paragraph 6, service weapons, ammunition and equipment may be used in legitimate self-defence and in legitimate defence of guest officers or of other persons, in accordance with the national law of the host Member State.

8.   For the purpose of this Regulation, the host Member State may authorise guest officers to consult its national and European databases which are necessary for border checks and surveillance. The guest officers shall consult only those data which are required for performing their tasks and exercising their powers. The host Member State shall, in advance of the deployment of the guest officers, inform the Agency of the national and European databases which may be consulted. The Agency shall make this information available to all Member States participating in the deployment.

9.   The consultation as referred to in paragraph 8 shall be carried out in accordance with Community law and the national law of the host Member State in the area of data protection.

10.   Decisions to refuse entry in accordance with Article 13 of Regulation (EC) No 562/2006 shall be taken only by border guards of the host Member State.

Article 10a

Accreditation document

1.   The Agency shall, in cooperation with the host Member State, issue a document in the official language of the host Member State and another official language of the institutions of the European Union to guest officers for the purpose of identifying them and as proof of the holder’s rights to perform the tasks and exercise the powers as referred to in Article 10(1). The document shall include the following features of the guest officer:

2.   The document shall be returned to the Agency at the end of the joint operation or pilot project.

Article 10b

Civil liability

1.   Where guest officers are operating in a host Member State, that Member State shall be liable in accordance with its national law for any damage caused by them during their operations.

2.   Where such damage is caused by gross negligence or wilful misconduct, the host Member State may approach the home Member State in order to have any sums it has paid to the victims or persons entitled on their behalf reimbursed by the home Member State.

3.   Without prejudice to the exercise of its rights vis-à-vis third parties, each Member State shall waive all its claims against the host Member State or any other Member State for any damage it has sustained, except in cases of gross negligence or wilful misconduct.

4.   Any dispute between Member States relating to the application of paragraphs 2 and 3 which cannot be resolved by negotiations between them shall be submitted by them to the Court of Justice of the European Communities in accordance with Article 239 of the Treaty.

5.   Without prejudice to the exercise of its rights vis-à-vis third parties, the Agency shall meet costs related to damage caused to the Agency’s equipment during deployment, except in cases of gross negligence or wilful misconduct.

Article 10c

Criminal liability

During the deployment of a joint operation or a pilot project, guest officers shall be treated in the same way as officials of the host Member State with regard to any criminal offences that might be committed against them or by them.

31.7.2007   

EN

Official Journal of the European Union

L 199/40

(1)

The Community has set itself the objective of maintaining and developing an area of freedom, security and justice. For the progressive establishment of such an area, the Community is to adopt measures relating to judicial cooperation in civil matters with a cross-border impact to the extent necessary for the proper functioning of the internal market.

(2)

According to Article 65(b) of the Treaty, these measures are to include those promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction.

(3)

The European Council meeting in Tampere on 15 and 16 October 1999 endorsed the principle of mutual recognition of judgments and other decisions of judicial authorities as the cornerstone of judicial cooperation in civil matters and invited the Council and the Commission to adopt a programme of measures to implement the principle of mutual recognition.

(4)

On 30 November 2000, the Council adopted a joint Commission and Council programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters (3). The programme identifies measures relating to the harmonisation of conflict-of-law rules as those facilitating the mutual recognition of judgments.

(5)

The Hague Programme (4), adopted by the European Council on 5 November 2004, called for work to be pursued actively on the rules of conflict of laws regarding non-contractual obligations (Rome II).

(6)

The proper functioning of the internal market creates a need, in order to improve the predictability of the outcome of litigation, certainty as to the law applicable and the free movement of judgments, for the conflict-of-law rules in the Member States to designate the same national law irrespective of the country of the court in which an action is brought.

(7)

The substantive scope and the provisions of this Regulation should be consistent with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (5) (Brussels I) and the instruments dealing with the law applicable to contractual obligations.

(8)

This Regulation should apply irrespective of the nature of the court or tribunal seised.

(9)

Claims arising out of acta iure imperii should include claims against officials who act on behalf of the State and liability for acts of public authorities, including liability of publicly appointed office-holders. Therefore, these matters should be excluded from the scope of this Regulation.

(10)

Family relationships should cover parentage, marriage, affinity and collateral relatives. The reference in Article 1(2) to relationships having comparable effects to marriage and other family relationships should be interpreted in accordance with the law of the Member State in which the court is seised.

(11)

The concept of a non-contractual obligation varies from one Member State to another. Therefore for the purposes of this Regulation non-contractual obligation should be understood as an autonomous concept. The conflict-of-law rules set out in this Regulation should also cover non-contractual obligations arising out of strict liability.

(12)

The law applicable should also govern the question of the capacity to incur liability in tort/delict.

(13)

Uniform rules applied irrespective of the law they designate may avert the risk of distortions of competition between Community litigants.

(14)

The requirement of legal certainty and the need to do justice in individual cases are essential elements of an area of justice. This Regulation provides for the connecting factors which are the most appropriate to achieve these objectives. Therefore, this Regulation provides for a general rule but also for specific rules and, in certain provisions, for an ‘escape clause’ which allows a departure from these rules where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected 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.

(15)

The principle of the lex loci delicti commissi is the basic solution for non-contractual obligations in virtually all the Member States, but the practical application of the principle where the component factors of the case are spread over several countries varies. This situation engenders uncertainty as to the law applicable.

(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 person who has sustained damage. A connection with the country where the direct damage occurred (lex loci damni) strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage, and also reflects the modern approach to civil liability and the development of systems of strict liability.

(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 property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively.

(18)

The general rule in this Regulation should be the lex loci damni provided for in Article 4(1). Article 4(2) should be seen as an exception to this general principle, creating a special connection where the parties have their habitual residence in the same country. Article 4(3) should be 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.

(19)

Specific rules should be laid down for special torts/delicts where the general rule does not allow a reasonable balance to be struck between the interests at stake.

(20)

The conflict-of-law rule in matters of product liability should meet the objectives of fairly spreading the risks inherent in a modern high-technology society, protecting consumers' health, stimulating innovation, securing undistorted competition and facilitating trade. Creation of a cascade system of connecting factors, together with a foreseeability clause, is a balanced solution in regard to these objectives. The first element to be taken into account is the law of the country in which the person sustaining the damage had his or her habitual residence when the damage occurred, if the product was marketed in that country. The other elements of the cascade are triggered if the product was not marketed in that country, without prejudice to Article 4(2) and to the possibility of a manifestly closer connection to another country.

(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. In matters of unfair competition, the conflict-of-law rule should protect competitors, consumers and the general public and ensure that the market economy functions properly. The connection to the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected generally satisfies these objectives.

(22)

The non-contractual obligations arising out of restrictions of competition in Article 6(3) should cover infringements of both national and Community competition law. The law applicable to such non-contractual obligations should be the law of the country where the market is, or is likely to be, affected. In cases where the market is, or is likely to 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.

(23)

For the purposes of this Regulation, the concept of restriction of competition should cover prohibitions on agreements between undertakings, decisions by associations of 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 market, as well as prohibitions on the abuse of a dominant position within a Member State or within the internal market, where such agreements, decisions, concerted practices or abuses are prohibited by Articles 81 and 82 of the Treaty or by the law of a Member State.

(24)

‘Environmental damage’ should be understood as meaning adverse change in a natural resource, such as water, land or air, impairment of a function performed by that resource for the benefit of another natural resource or the public, or impairment of the variability among living organisms.

(25)

Regarding environmental damage, Article 174 of the Treaty, which provides that there should be a high level of protection based on the precautionary principle and the principle that preventive action should be taken, the principle 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 sustaining the damage. The question of when the person seeking compensation can make the choice of the law applicable should be determined in accordance with the law of the Member State in which the court is seised.

(26)

Regarding infringements of intellectual property rights, the universally acknowledged principle of the lex loci protectionis should be preserved. For the purposes of this Regulation, the term ‘intellectual property rights’ should be interpreted as meaning, for instance, copyright, related rights, the sui generis right for the protection of databases and industrial property rights.

(27)

The exact concept of industrial action, such as strike action or lock-out, varies from one Member State to another and is governed by each Member State’s internal rules. Therefore, this Regulation assumes as a general principle that 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.

(28)

The special rule on industrial action in Article 9 is without prejudice to the conditions relating to the exercise of such action in accordance with national law and without prejudice to the legal status of trade unions or of the representative organisations of workers as provided for in the law of the Member States.

(29)

Provision should be made for special rules where damage is caused by an act other than a tort/delict, such as unjust enrichment, negotiorum gestio and culpa in contrahendo.

(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 include the violation of the duty of disclosure and the breakdown of contractual negotiations. Article 12 covers only non-contractual obligations presenting a direct link with the dealings prior to the conclusion of a contract. This means that if, while a contract is being negotiated, a person suffers personal injury, Article 4 or other relevant provisions of this Regulation should apply.

(31)

To respect the principle of party autonomy and to enhance legal certainty, the parties should be allowed to make a choice as to the law applicable to a non-contractual obligation. This choice should be expressed or demonstrated with reasonable certainty by the circumstances of the case. Where establishing the existence of the agreement, the court has to respect the intentions of the parties. Protection should be given to weaker parties by imposing certain conditions on the choice.

(32)

Considerations of public interest justify giving the courts of the Member States the possibility, in exceptional circumstances, of applying exceptions based on public policy and overriding mandatory provisions. In particular, the 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 excessive nature to be awarded may, depending on the circumstances of the case and the legal order of the Member State of the court seised, be regarded as being contrary to the public policy (ordre public) of the forum.

(33)

According to the current national rules on compensation awarded to victims of road traffic accidents, when quantifying damages for personal injury in cases in which the accident takes place in a State other than that of the habitual residence of the victim, the court seised should take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention.

(34)

In order to strike a reasonable balance between the parties, account must be taken, in so far as appropriate, of the rules of safety and conduct in operation in the country in which the harmful act was committed, even where the non-contractual obligation is governed by the law of another country. The term ‘rules of safety and conduct’ should be interpreted as referring to all regulations having any relation to safety and conduct, including, for example, road safety rules in the case of an accident.

(35)

A situation where conflict-of-law rules are dispersed among several instruments and where there are differences between those rules should be avoided. This Regulation, 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.

This Regulation should not prejudice the application of other instruments laying down provisions designed to contribute to the proper functioning of the internal market in so far as they cannot be applied in conjunction with the law designated by the rules of this Regulation. The application of provisions of the applicable law designated by the rules of this Regulation should not restrict the free movement of goods and services as regulated by Community 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 particular electronic commerce, in the Internal Market (Directive on electronic commerce) (6).

(36)

Respect for international commitments entered into by the Member States means that this Regulation should not 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 Commission should publish the list of the relevant conventions in the Official Journal of the European Union on the basis of information supplied by the Member States.

(37)

The Commission will make a proposal to the European Parliament and the Council concerning the procedures and conditions according to which Member States would be entitled to negotiate and conclude on their own behalf agreements with third countries in individual and exceptional cases, concerning sectoral matters, containing provisions on the law applicable to non-contractual obligations.

(38)

Since the objective of this Regulation cannot be sufficiently achieved by the Member States, and can therefore, by reason of the scale and effects of this Regulation, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity set out in Article 5 of the Treaty. In accordance with the principle of proportionality set out in that Article, this Regulation does not go beyond what is necessary to attain that objective.

(39)

In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom and Ireland are taking part in the adoption and application of this Regulation.

(40)

In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in the adoption of this Regulation, and is not bound by it or subject to its application,

(a)

non-contractual obligations arising out of family relationships and relationships deemed by the law applicable to such relationships to have comparable effects including maintenance obligations;

(b)

non-contractual obligations arising out of matrimonial property regimes, property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage, and wills and succession;

(c)

non-contractual obligations arising under bills of exchange, cheques and promissory notes and other negotiable instruments to the extent that the obligations under such other negotiable instruments arise out of their negotiable character;

(d)

non-contractual obligations arising out of the law of companies and other bodies corporate or unincorporated regarding matters such as the creation, by registration or otherwise, legal capacity, internal organisation or winding-up of companies and other bodies corporate or unincorporated, the personal liability of officers and members as such for the obligations of the company or body and the personal liability of auditors to a company or to its members in the statutory audits of accounting documents;

(e)

non-contractual obligations arising out of the relations between the settlors, trustees and beneficiaries of a trust created voluntarily;

(f)

non-contractual obligations arising out of nuclear damage;

(g)

non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation.

(a)

an event giving rise to damage shall include events giving rise to damage that are likely to occur; and

(b)

damage shall include damage that is likely to occur.

(a)

the law of the country in which the person sustaining the damage had his or her habitual residence when the damage occurred, if the product was marketed in that country; or, failing that,

(b)

the law of the country in which the product was acquired, if the product was marketed in that country; or, failing that,

(c)

the law of the country in which the damage occurred, if the product was marketed in that country.

3.

(a)

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 occurred; or

(b)

where the parties have their habitual residence in the same country at the time when the event giving rise to the damage occurs, the law of that country; or

(c)

where it is clear from all the circumstances of the case that the non-contractual obligation arising out of dealings prior to the conclusion of a contract is manifestly more closely connected with a country other than that indicated in points (a) and (b), the law of that other country.

(a)

by an agreement entered into after the event giving rise to the damage occurred;

or

(b)

where all the parties are pursuing a commercial activity, also by an agreement freely negotiated before the event giving rise to the damage occurred.

(a)

the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;

(b)

the grounds for exemption from liability, any limitation of liability and any division of liability;

(c)

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

(d)

within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;

(e)

the question whether a right to claim damages or a remedy may be transferred, including by inheritance;

(f)

persons entitled to compensation for damage sustained personally;

(g)

liability for the acts of another person;

(h)

the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

(i)

a list of the conventions referred to in paragraph 1;

(ii)

the denunciations referred to in paragraph 1.

(i)

a study on the effects of the way in which foreign law is treated in the different jurisdictions and on the extent to which courts in the Member States apply foreign law in practice pursuant to this Regulation;

(ii)

a study on the effects of Article 28 of this Regulation with respect to the Hague Convention of 4 May 1971 on the law applicable to traffic accidents.