Rome II Detailed Application: Specific Torts
The Rome II Regulation (Regulation (EC) 864/2007) establishes a comprehensive choice-of-law framework for non-contractual obligations, including specific rules for product liability, competition torts, environmental damage, intellectual property infringement, industrial action, and obligations arising from unjust enrichment, negotiorum gestio, and culpa in contrahendo. This article examines the detailed application of these special rules and the interpretive guidance provided by the Court of Justice.
Product Liability (Article 5)
Article 5 establishes a cascade of connecting factors for product liability claims, designed to balance the interests of injured persons and producers. The applicable law is, in order:
- The law of the victim’s habitual residence, provided the product was marketed there;
- Failing that, the law of the country where the product was acquired, provided the product was marketed there;
- Failing that, the law of the country where the damage occurred, provided the product was marketed there.
Where none of these criteria are satisfied, the default rule under Article 4 applies. The cascade approach avoids the arbitrary results of a single connecting factor and reflects the sophistication of modern product distribution chains.
The marketing requirement functions as a foreseeability limitation: the producer cannot be subjected to a law whose application could not reasonably have been anticipated. The Court of Justice in Verein für Konsumenteninformation v Volkswagen (Case C-509/19) addressed the concept of marketing, holding that a product is placed on the market where it is made available to the public, not necessarily where it is sold by an authorised dealer.
Article 5(2) permits the parties to choose the applicable law by an agreement freely negotiated after the damage occurred, or by a prior agreement where all parties pursue a commercial activity.
Unfair Competition and Competition Torts (Article 6)
Article 6 distinguishes between unfair competition and acts restricting free competition. For unfair competition, Article 6(1) applies the law of the country where competitive relations or the collective interests of consumers are affected. This is the “market effect” rule, focusing on the market where competition is distorted rather than the actor’s location.
Article 6(2) provides an exception: where an act of unfair competition affects the interests of a specific competitor, the general rule under Article 4 applies. This covers targeted attacks on individual competitors, such as disparagement or inducing breach of contract.
For competition torts (Article 6(3)), the applicable law is the law of the country where the market is affected. Where the market is affected in more than one country, the claimant may base their claim on the law of the forum (lex fori) provided the defendant’s conduct also affects the forum’s market. This provision facilitates private enforcement of competition law in multi-jurisdictional cartel and abuse of dominance cases.
The Court of Justice in Kone v OBB (Case C-557/12), although decided under the Brussels I Regulation, influenced the interpretation of Article 6(3) by establishing that competition law infringements produce effects across multiple jurisdictions and that jurisdiction may be aggregated.
Environmental Damage (Article 7)
Article 7 establishes a favour principle for environmental damage claims: the claimant may choose between the law of the country where the damage occurred (lex loci damni) and the law of the country where the event giving rise to the damage occurred (lex loci acti). The provision reflects the environmental law principle that the polluter should bear the costs of pollution, and the need to provide the claimant with access to the more protective legal regime.
The option to choose is limited to the claimant, not the defendant. The claimant may elect the law that provides a higher standard of environmental protection, stricter liability standards, or more generous compensation. This asymmetrical choice is justified by the public interest in environmental protection and the vulnerability of individual claimants.
Intellectual Property Infringement (Article 8)
Article 8 applies the law of the country for which protection is claimed (lex loci protectionis) to non-contractual obligations arising from an infringement of an intellectual property right. This territorial rule reflects the classical principle that IP rights are national in scope and their infringement is governed by the law of the protecting country.
The lex loci protectionis applies uniformly across all IP rights — patents, trade marks, copyright, designs, and related rights. For unregistered rights, the law of the country where the right arises applies.
Article 8(3) prohibits party choice of law for IP infringement claims. This preserves the mandatory character of national IP law and prevents parties from contracting around the territorial limitations of IP rights.
Industrial Action (Article 9)
Article 9 provides that the law applicable to non-contractual obligations in respect of industrial action is the law of the country where the action is taken. This protects the regulatory autonomy of Member States in industrial relations law and reflects the territorial nature of collective labour law.
Industrial action is defined broadly to include strikes, lock-outs, and other forms of protest. The provision has been invoked in cross-border supply chain disputes where industrial action in one Member State affects operations in another.
Unjust Enrichment (Article 10)
Article 10 establishes a graduated hierarchy for unjust enrichment claims. First, where the enrichment arises from a relationship between the parties (e.g., a contract or tort), the law governing that relationship applies. Second, where the enrichment arises from a legal rule (e.g., a void contract), the law governing that rule applies. Third, where the enrichment arises from a legal rule (e.g., an invalidated administrative act), the law of the country where the legal rule applies.
Failing these, the law of the common habitual residence of the parties applies, and failing that, the law of the country where the enrichment occurred.
Negotiorum Gestio (Article 11)
Article 11 applies the same cascading structure as unjust enrichment to negotiorum gestio (the voluntary undertaking of another’s affairs without authority). The applicable law is the law governing any existing relationship between the parties, then the law of the common habitual residence, then the law of the country where the act was performed.
The Court of Justice has not yet ruled on Articles 10 and 11, but national courts have applied them in cases involving mistaken payments, unjust enrichment following termination of contract, and non-contractual obligations arising from failed contractual negotiations.
Culpa in Contrahendo (Article 12)
Article 12 applies the law that governs the contract (or would have governed it had it been concluded) to pre-contractual liability. This ensures that the same law applies to the contractual and pre-contractual phases of a relationship. In the absence of a prospective contract, the general rules under Article 4 apply.
Freedom of Choice and Overriding Mandatory Provisions
Article 14 permits the parties to choose the applicable law for non-contractual obligations after the event, subject to the protection of weaker parties and third parties. Overriding mandatory provisions under Article 16 may displace the designated law where the forum’s public policy so requires.