THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION

Introduction

I. Part of an Integrated System

II. Genesis

Chapter I Scope

Article 1 Scope

A. General Outline

B. Requirements for Application: Art. 1(1)

I. Civil and Commercial Matters

II. Non-contractual Obligations

1. General Definition

2. Concurrent Liability

3. Culpa in Contrahendo

4. Questions of Agency: Falsus Procurator and Apparent Authority

5. Property Law, or Rei Vindicatio

6. Actio Pauliana

7. Collective Claims, or Suits Brought by Consumer Protection Associations

8. Prize Notifications

9. Restitution as a Consequence of a Void Contract

III. Situations Involving a Conflict of Laws

C. Specified Exclusions: Art. 1(2)

I. Family Relationships: Art. 1(2)(a)

II. Matrimonial Property Regimes, Wills, Succession: Art. 1(2)(b)

III. Negotiable Financial Instruments: Art. 1(2)(c)

IV. Company Law: Art. 1(2)(d)

V. Trusts: Art. 1(2)(e)

VI. Nuclear Damage: Art. 1(2)(f)

VII. Privacy and Rights Relating to Personality: Art. 1(2)(g)

D. Evidence and Procedure: Art. 1(3)

I. Distinction between Procedural and Substantive Matters

II. Application of Foreign Law

E. Exclusion of Denmark: Art. 1(4)

Article 2 Non-contractual obligations

A. Overview

B. Material Scope: Future Obligations and Declaratory Actions

C. Definitions

I. Art. 2(1): ‘‘Damage’’ Refers to ‘‘Any Consequence’’

II. Art. 2(3): ‘‘Damage’’ and ‘‘Event Giving Rise to Damage’’ Include Damages and Events That Are Likely to Occur

Article 3 Universal application

Chapter II Torts/Delicts

Article 4 General Rule

A. Scope and Structure

I. Torts/Delicts

1. General Definition

2. Distruction between Torst and Unjust Enrichment

3. Distruction between Tort Property Law

4. Concurrent Liability

II. Structure of the Rules on Torts/Delicts

III. Structure of Chapter II

IV. Structure of Art. 4

B. Art. 4&klammspace;(1): General Rule: Lex Loci Damni

I. General

II. Direct and Consequential Damage

1. General

2. Personal Injury and Damage to Property

3. Purely Economic Loss

III. Damage in Different Countries

IV. A Nonexistent or Indeterminable Lex Loci Damni

C. Art. 4(2): Common Habitual Residence Lex Domicilii Communis

I. General

II. Prerequisites

1. . . . The Parties Both . . .

2. . . . Have Their Habitual Residence . . .

3. . . . In the Same Country . . .

4. . . . At the Time the Damage Occurs . . .

D. Art. 4(3): Escape Clause/Manifestly Closer Connection

I. General

II. Preexisting Relationship

1. General

2. Contractual Relationship

3. Non-Contractual Legal Relationship

4. Factual Relationship

E. Particular Cases

I. Traffic Accidents

II. Internet Torts

III. Collision of Ships or Airplanes

IV. Torts/Delicts onboard a Ship or Airplane

V. Damage to Res in Transitu

VI. Damage to Third Parties

VII. Collective Claims, or Suits Brought by Consumer Protection Associations

Article 5 Product liability

A. Overview

I. Legislative History

II. Structure

III. Relationship with the 1973 Hague Convention

B. Scope

I. Material Scope

1. Non-Contractual Liability for Damage Caused by a Defective Product

2. Relationship with Other Provisions of the Regulation

3. Relationship with the E-Commerce Directive

II. Personal Scope

III. Territorial Scope

C. Determination of the Applicable Law

I. Ladder of Connections

1. Choice of Law

2. Common Habitual Residence

3. The Cascade of Art. 5(1)1 lit. a to c

4. Foreseeability Defence

5. Escape Clause

D. Burden of Proof

E. Jurisdiction Issues

Article 6 Unfair competition and acts restricting free competition

A. Overview

B. Unfair Competition

I. Structure and Relationship between Art. 6(1) and 6&klammspace;(2)

II. Scope

1. Material Scope

2. Personal Scope

3. Territorial Scope

III. Determination of the Applicable Law

1. Market-Related Acts

2. Competitor-Related Acts

3. Multi-State Acts

C. Acts Restricting Free Competition

I. Legislative History and Background

II. Scope

1. Material Scope

2. Personal Scope

3. Territorial Scope

III. Structure

IV. Operation

1. Follow-On Actions

2. Stand-Alone Actions

V. Determination of the Applicable Law

1. General Rule

2. Multi-State and Multi-Party Constellations

Article 7 Environmental damage

A. Introduction

B. Justification of the Principle of Ubiquity and the Victim’s Option to Choose the Law of the Place of Conduct

I. Basic Rule

II. Criticism

III. Principle of Prevention

C. Content of the Provision

I. Civil and Commercial Matters

II. Environmental Damage et al.

III. Reference to the General Rule in Art. 4(1)

IV. The Victim’s Right to Choose the Law of the Place of Conduct

V. Scope of the Applicable Law

D. Rules of Safety and Conduct (Art. 17)

E. Excluded from the Scope: Nuclear Damage

F. Other Instruments

I. Directive 2004/35/EC

II. International Conventions

Article 8 Infringement of Intellectual Property Rights

A. Overview

I. Legislative History and Background

II. Structure

B. Scope of the Conflict Rule

I. Material Scope

1. Intellectual Property Rights

2. Relevant Act

3. Comprehensive Coverage

4. Relationship with Other Conflict Rules of the Regulation

5. Relationship with Conflict Rules in Other EU Regulations

6. Relationship with EU Primary Law

7. Relationship with International Conventions

II. Personal Scope

III. Territorial Scope

C. Determination of the Applicable Law

I. Operation and Interplay with Unitary Community Instruments

II. Different Connecting Factors

1. The General (External) Conflict Rule (Art. 8(1))

2. The Special (Internal) Conflict Rule (Art. 8(2))

3. Escape Clause and Choice of Law

III. Scope of the Applicable Law

1. General Considerations

2. Unlawful and Lawful Acts

3. Contractual versus Non-Contractual Obligations

D. Jurisdiction Issues

Article 9 Industrial action

A. Introductory Issues

I. Legislative History

II. Background

III. Policy Issues

IV. Structure

B. Scope of the Conflict Rule

I. Material Scope

1. The Concept of Industrial Action

2. Limitation to Tort/Delict

3. Non-Contractual vs. Contractual Obligations

II. Personal Scope

1. Person Claimed to be Liable

2. Person Sustaining Damage

III. Territorial Scope

C. Determination of the Applicable Law

I. Choice of Law

II. Common Habitual Residence

III. Country Where the Action Is to Be, or Has Been, Taken

IV. Multi-State Scenarios

V. Scope of the Applicable Law

1. Liability and Legality

2. Damages Claims and Injunctive Relief

3. Causal Link between Industrial Action and Damage

4. Mandatory Rules and Public Policy

D. Jurisdiction Issues

Chapter III Unjust Enrichment, Negotiorum Gestio and Culpa in Contrahendo

Article 10 Unjust Enrichment

A. Scope

I. The Term Unjust Enrichment

1. General

2. Distinction between Unjust Enrichment and Tort

3. Distinction Between Unjust Enrichment and Negotiorum Gestio

4. Distinction between Unjust Enrichment and Contractual Obligations

5. Distinction between Unjust Enrichment and Property Law

II. Excluded Matters

B. Rule

I. Structure of Art. 10

II. Accessory Connection to an Existing Relationship (Subsection 1)

III. Lex Domicilii Communis (Subsection 2)

IV. Place of enrichment (Subsection 3)

V. Escape Clause (Subsection 4)

VI. Three-Party-Relationship

Article 11 Negotiorum gestio

A. Scope

I. The Term Negotiorum Gestio

1. General

2. Distinction between Negotiorum Gestio and Contractual Obligations

3. Distinction between Negotiorum Gestio, Unjust Enrichment and Tort

II. Excluded Matters

B. Rule

I. Structure of Art. 11

II. Accessory Connection to an Existing Relationship (Subsection 1)

III. Lex Domicilii Communis (Subsection 2)

IV. Lex Loci Gestionis (Subsection 3)

V. Escape Clause (Subsection 4)

Article 12 Culpa in contrahendo

A. Scope

I. The Term Culpa in Contrahendo

1. General

2. Distinction between Culpa in Contrahendo and Tort

3. Distinction between Culpa in Contrahendo and Contractual Obligations

4. Claims against Third Parties

5. Concurrent Liability

II. Excluded Matters

B. Rule

I. Structure of Art. 12

II. Accessory Connection to the Law Which Governs the Contract (Subsection 1)

III. Art. 4 Cascade (Subsection 2)

1. Scope of Application

2. Cascade System

Article 13 Applicability of Article 8

Chapter IV Freedom of choice

Article 14 Freedom of choice

A. General

I. Scope of Application

II. Differentiation between Consumer Contracts and Commercial Contracts

III. Selectable Law

IV. Partial Choice of Law (dépeçage)

B. Prerequisites

I. Common Prerequisites for Both Types, Art. 14(1)(2)

1. Consensus

2. Formation and Validity

3. Formal Requirements

4. Alteration

II. Additional Prerequisites for an Anterior Choice of Law, Art. 14(1)(b)

1. . . . Before the Event Giving Rise to the Damage

2. . . . Pursuing a Commercial Activity . . .

3. . . . All Parties . . .

4. . . . an Agreement Freely Negotiated . . .

5. Choice of Law in Favour of the Weaker Party

C. Restrictions

I. Rights of Third Parties

II. National Mandatory Provisions, Art. 14(2)

III. European Mandatory Provisions, Art. 14(3)

D. Consequences of an Invalid Choice of Law Agreement

Chapter V Common rules

Article 15 Scope of the law applicable

A. General/Overview/System

B. Particular Governed Aspects

I. Basis and Extent of Liability, Lit. (a)

II. Exemption, Limitation, and Division of Liability, Lit. (b)

III. Existence, Nature, and Assessment of the Remedy Claimed, Lit. (c)

IV. Prevention of Injury, lit. (d)

V. Transfer of Remedies, Lit. (e)

VI. Persons Entitled to Compensation for Damage Sustained Personally, Lit. (f)

VII. Liability for the Acts of another Person, Lit. (g)

VIII. Defences, Lit. (h)

Article 16 Overriding mandatory provisions

A. Introduction

B. Overriding Mandatory Provisions

C. Scope of Application

I. Choice of Law

II. Compensation for Victims of Traffic Accidents

III. Rules of Safety and Conduct

IV. Exchange Control

V. Miscellaneous

D. Third Country’s Internationally Mandatory Provisions

Article 17 Rules of safety and conduct

A. General/Overview/System

B. Prerequisites

I. In Assessing the Conduct of the Person Claimed to be Liable . . .

II. . . . Account Shall be Taken as a Matter of Fact . . .

III. . . . Account Shall be Taken in so far as Is Appropriate . . .

V. . . . To the Rules of Safety and Conduct . . .

VI. . . . Which were in Force at the Place and Time of the Event Giving Rise to the Liability

Article 18 Direct Action against the insurer of the person liable

A. Overview

B. Detailed Commentary

I. Who can Claim Direct Compensation against the Insurer?

II. Does the Victim have to Opt for the Law Governing the Insurance Contract?

III. What is the Law Applicable to the Non-Contractual Obligation in the Sense of Art. 18 Rome II?

IV. Which Questions are Governed by Art. 18 Rome II?

V. Traffic Accidents

Article 19 Subrogation

A. Overview

B. Detailed Commentary

I. A Duty to Satisfy the Creditor

II. The Scope of the Law of the Subrogation

III. The Scope of the Law of the Non-Contractual Obligation

IV. Other Claims than Subrogation Claims?

V. Council Regulation (EEC) No. 1408/71

Article 20 Multiple liability

A. General/System/Overview

I. Relationship to Art. 15(a)

II. Relationship to Art. 19

III. Relationship to Art. 16 Rome I

IV. Relationship to Arts. 10 and 11

B. Detailed Commentary

I. Prerequisites

1. ‘‘ . . . Several Debtors that Are Liable for the Same Claim . . . ’’

2. ‘‘ . . . One of the Debtors Has Already Satisfied the Claim in Whole or in Part . . . ’’

II. Legal Consequences

1. General Outline

2. Scope of the Law Applicable

2.1. Exclusion of Liability of the Second Debtor

2.2. Different Measurement of Damages

3. Recourse and Choice of Law

Article 21 Formal validity

A. Overview

B. Unilateral Acts

C. Formal Validity

Article 22 Burden of proof

A. Overview

B. Detailed Commentary

I. Rules which Raise Presumptions of Law or Determine the Burden of Proof (Art. 22(1) Rome II)

1. General

2. Procedural Presumtions Are not Covered by Art. 22(1) Rome II

3. Presumtions of Fact Are not Covered by Art. 22(1) Rome II

II. Available Modes of Proof (Art. 22(2) Rome II)

1. Applicable Laws

2. Administrable by the Forum

Chapter VI Other Provisions

Article 23 Habitual Residence

A. Overview

B. Detailed Commentary

I. Habitual Residence of Companies and Other Bodies

1. Place of Central Administration (Art. 23(1)1 Rome II)

2. Location of a Branch, Agency or Other Establishment (Art. 23(1)2 Rome II)

II. Habitual Residence of Natural Persons

1. Principal Place of Business, if the Person is Acting in the Course of His or Her Business Activity (Art. 23(2) Rome II)

2. Habitual Residence of Natural Persons Who Are not Acting in the Course of Their Business Activities

Article 24 Exclusion of renvoi

Article 25 States with more than one legal system

A. Overview

B. Detailed Commentary

I. Art. 25(1) Rome II

II. Art. 25(2) Rome II

Article 26 Public policy of the forum

A. Background

B. Scope of Application

I. Non-Contractual Obligation

II. Exceptional Case

III. Application of the Foreign Law

IV. Connection to the Forum

V. Ordre public international

C. Consequences

D. Punitive Damages

Article 27 Relationship with other provisions of Community law

A. General

I. Background

II. Fragmentation

B. The Operation of the Rule

I. Operation in General

II. The Effect of the Country of Origin-Principle in Other Provisions of Community Law

III. Scope and Preconditions

Article 28 Relationship with existing international conventions

A. Structure, Purpose and Background

B. Operation and Prerequisites of the Rule

I. Conventions between Member States and Third Countries

1. Existing Conventions - Art. 28(1)

2. Future Conventions

II. Conventions Exclusively between Member States - Art. 28(2)

Chapter VII Final Provisions

Article 29 List of conventions

Article 30 Review clause

A. Background

B. Specific Issues

1. Treatment of Foreign Law

2. Cross-Border Traffic Accidents

3. Violation of Privacy and Rights Relating to Personality

Article 31 Application in time

Article 32 Date of application

A. The Rule

I. Literal Interpretation

II. The Majority View to the Contrary

III. Case Law

B. Application of the Rule

Index