Tort/Delict—General Rules

Dickinson, Andrew

doi:10.1093/law/9780199289684.003.0004

Chapter

4 Tort/Delict—General Rules

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https://doi.org/10.1093/law/9780199289684.003.0004

Pages

295–362

Published:

July 2010

Extract

Article 4
General rule
...

Introduction¹

Subject to the rules of displacement contained in Arts 4(2) and (3), Art 4(1) provides that the law generally applicable to non-contractual obligations arising out of a tort/delict is the law of the country in which the damage occurs (lex loci damni).² Despite minor changes in wording, this outcome largely reflects the Commission Proposal.³ The Commission’s approach was challenged by the European Parliament during the passage of the Regulation,⁴ but was supported by the Member State delegations in the Council.

For a critical comment on Art 4, see

H Koziol and T Thiede, ‘Kritische Bemerkungen zum derzeitigen Stand des Entwurfs einer Rom II-Verordnung’ (2007) 106 Zeitschrift für Vergleichende Rechtswissenschaft 235

(with English summary at <http://www.conflictoflaws.net/2007/articles/austrian-article-on-rome-ii/>).

Commission Proposal, Art 3.

⁴

1.74 and 1.90 above.

In recommending this solution, the Commission rejected four alternatives to the country of the damage as the primary connecting factor. First, to refer to the country of the ‘harmful event’ (French ‘fait dommageable’), reflecting the language of Art 5(3) of the Brussels I Regulation and the Brussels Convention before it. Although that solution had appealed to the authors of the 1972 draft convention,⁵ the ECJ had subsequently determined that the expression ‘place where the harmful event occurred’ in Art 5(3) of the Brussels Convention (matters relating to tort, delict, or quasidelict) referred not only to the place where the event giving rise to damage occurred but also to the place where damage occurred, giving the claimant the right to choose between the courts of those two places.⁶ In the Commission’s view, that solution was acceptable within the Brussels I Regime dealing with the jurisdiction of Member State courts, ‘but it does not enable the parties to foresee the law that will be applicable to their situation with certainty’.⁷ Had this approach been adopted for tort/delict in the Regulation, it would have introduced a so-called ‘principle of ubiquity’ (Günstigkeitsprinzip) in a form adopted until 1999 in Germany, allowing the injured person to choose the law most favourable to him.⁸ An express provision of that kind was the second alternative option rejected by the Commission. In its view, ‘this solution would go beyond the victim’s legitimate expectations and would introduce uncertainty in the law, contrary to the general objective of the proposed Regulation’.⁹ The third alternative would have been to apply the law of the country of the act or other event giving rise to damage (lex loci actus). Finally, the Commission rejected the possibility of applying the law of the place where the event giving rise to damage occurred.¹⁰

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Contents

4 Tort/Delict—General Rules

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Introduction¹

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4 Tort/Delict—General Rules

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Introduction1

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Introduction¹