The
Rome I Regulation
Regulation (EC) No
593/2008 of 17 June 2008
on the law applicable to contractual obligations
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and
in particular Article 61(c) and the second indent of Article 67(5) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee
[1],
Acting in accordance with the procedure laid down in Article 251 of the
Treaty [2],
Whereas:
(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, point (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 that principle.
(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 conflict-of-law rules regarding contractual
obligations (Rome I).
(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 Regulation (EC) No 864/2007 of the European Parliament
and of the Council of 11 July 2007 on the law applicable to non-contractual
obligations (Rome II) [6].
(8) 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.
(9) Obligations under bills of exchange, cheques and promissory notes
and other negotiable instruments should also cover bills of lading to
the extent that the obligations under the bill of lading arise out of
its negotiable character.
(10) Obligations arising out of dealings prior to the conclusion of the
contract are covered by Article 12 of Regulation (EC) No 864/2007. Such
obligations should therefore be excluded from the scope of this Regulation.
(11) The parties' freedom to choose the applicable law should be one
of the cornerstones of the system of conflict-of-law rules in matters
of contractual obligations.
(12) An agreement between the parties to confer on one or more courts
or tribunals of a Member State exclusive jurisdiction to determine disputes
under the contract should be one of the factors to be taken into account
in determining whether a choice of law has been clearly demonstrated.
(13) This Regulation does not preclude parties from incorporating by
reference into their contract a non-State body of law or an international
convention.
(14) Should the Community adopt, in an appropriate legal instrument,
rules of substantive contract law, including standard terms and conditions,
such instrument may provide that the parties may choose to apply those
rules.
(15) Where a choice of law is made and all other elements relevant to
the situation are located in a country other than the country whose law
has been chosen, the choice of law should not prejudice the application
of provisions of the law of that country which cannot be derogated from
by agreement. This rule should apply whether or not the choice of law
was accompanied by a choice of court or tribunal. Whereas no substantial
change is intended as compared with Article 3(3) of the 1980 Convention
on the Law Applicable to Contractual Obligations [7]
(the Rome Convention), the wording of this Regulation is aligned as far
as possible with Article 14 of Regulation (EC) No 864/2007.
(16) To contribute to the general objective of this Regulation, legal
certainty in the European judicial area, the conflict-of-law rules should
be highly foreseeable. The courts should, however, retain a degree of
discretion to determine the law that is most closely connected to the
situation.
(17) As far as the applicable law in the absence of choice is concerned,
the concept of "provision of services" and "sale of goods"
should be interpreted in the same way as when applying Article 5 of Regulation
(EC) No 44/2001 in so far as sale of goods and provision of services are
covered by that Regulation. Although franchise and distribution contracts
are contracts for services, they are the subject of specific rules.
(18) As far as the applicable law in the absence of choice is concerned,
multilateral systems should be those in which trading is conducted, such
as regulated markets and multilateral trading facilities as referred to
in Article 4 of Directive 2004/39/EC of the European Parliament and of
the Council of 21 April 2004 on markets in financial instruments [8],
regardless of whether or not they rely on a central counterparty.
(19) Where there has been no choice of law, the applicable law should
be determined in accordance with the rule specified for the particular
type of contract. Where the contract cannot be categorised as being one
of the specified types or where its elements fall within more than one
of the specified types, it should be governed by the law of the country
where the party required to effect the characteristic performance of the
contract has his habitual residence. In the case of a contract consisting
of a bundle of rights and obligations capable of being categorised as
falling within more than one of the specified types of contract, the characteristic
performance of the contract should be determined having regard to its
centre of gravity.
(20) Where the contract is manifestly more closely connected with a country
other than that indicated in Article 4(1) or (2), an escape clause should
provide that the law of that other country is to apply. In order to determine
that country, account should be taken, inter alia, of whether the contract
in question has a very close relationship with another contract or contracts.
(21) In the absence of choice, where the applicable law cannot be determined
either on the basis of the fact that the contract can be categorised as
one of the specified types or as being the law of the country of habitual
residence of the party required to effect the characteristic performance
of the contract, the contract should be governed by the law of the country
with which it is most closely connected. In order to determine that country,
account should be taken, inter alia, of whether the contract in question
has a very close relationship with another contract or contracts.
(22) As regards the interpretation of contracts for the carriage of goods,
no change in substance is intended with respect to Article 4(4), third
sentence, of the Rome Convention. Consequently, single-voyage charter
parties and other contracts the main purpose of which is the carriage
of goods should be treated as contracts for the carriage of goods. For
the purposes of this Regulation, the term "consignor" should
refer to any person who enters into a contract of carriage with the carrier
and the term "the carrier" should refer to the party to the
contract who undertakes to carry the goods, whether or not he performs
the carriage himself.
(23) As regards contracts concluded with parties regarded as being weaker,
those parties should be protected by conflict-of-law rules that are more
favourable to their interests than the general rules.
(24) With more specific reference to consumer contracts, the conflict-of-law
rule should make it possible to cut the cost of settling disputes concerning
what are commonly relatively small claims and to take account of the development
of distance-selling techniques. Consistency with Regulation (EC) No 44/2001
requires both that there be a reference to the concept of directed activity
as a condition for applying the consumer protection rule and that the
concept be interpreted harmoniously in Regulation (EC) No 44/2001 and
this Regulation, bearing in mind that a joint declaration by the Council
and the Commission on Article 15 of Regulation (EC) No 44/2001 states
that "for Article 15(1)(c) to be applicable it is not sufficient
for an undertaking to target its activities at the Member State of the
consumer's residence, or at a number of Member States including that Member
State; a contract must also be concluded within the framework of its activities".
The declaration also states that "the mere fact that an Internet
site is accessible is not sufficient for Article 15 to be applicable,
although a factor will be that this Internet site solicits the conclusion
of distance contracts and that a contract has actually been concluded
at a distance, by whatever means. In this respect, the language or currency
which a website uses does not constitute a relevant factor.".
(25) Consumers should be protected by such rules of the country of their
habitual residence that cannot be derogated from by agreement, provided
that the consumer contract has been concluded as a result of the professional
pursuing his commercial or professional activities in that particular
country. The same protection should be guaranteed if the professional,
while not pursuing his commercial or professional activities in the country
where the consumer has his habitual residence, directs his activities
by any means to that country or to several countries, including that country,
and the contract is concluded as a result of such activities.
(26) For the purposes of this Regulation, financial services such as
investment services and activities and ancillary services provided by
a professional to a consumer, as referred to in sections A and B of Annex
I to Directive 2004/39/EC, and contracts for the sale of units in collective
investment undertakings, whether or not covered by Council Directive 85/611/EEC
of 20 December 1985 on the coordination of laws, regulations and administrative
provisions relating to undertakings for collective investment in transferable
securities (UCITS) [9],
should be subject to Article 6 of this Regulation. Consequently, when
a reference is made to terms and conditions governing the issuance or
offer to the public of transferable securities or to the subscription
and redemption of units in collective investment undertakings, that reference
should include all aspects binding the issuer or the offeror to the consumer,
but should not include those aspects involving the provision of financial
services.
(27) Various exceptions should be made to the general conflict-of-law
rule for consumer contracts. Under one such exception the general rule
should not apply to contracts relating to rights in rem in immovable property
or tenancies of such property unless the contract relates to the right
to use immovable property on a timeshare basis within the meaning of Directive
94/47/EC of the European Parliament and of the Council of 26 October 1994
on the protection of purchasers in respect of certain aspects of contracts
relating to the purchase of the right to use immovable properties on a
timeshare basis [10].
(28) It is important to ensure that rights and obligations which constitute
a financial instrument are not covered by the general rule applicable
to consumer contracts, as that could lead to different laws being applicable
to each of the instruments issued, therefore changing their nature and
preventing their fungible trading and offering. Likewise, whenever such
instruments are issued or offered, the contractual relationship established
between the issuer or the offeror and the consumer should not necessarily
be subject to the mandatory application of the law of the country of habitual
residence of the consumer, as there is a need to ensure uniformity in
the terms and conditions of an issuance or an offer. The same rationale
should apply with regard to the multilateral systems covered by Article
4(1)(h), in respect of which it should be ensured that the law of the
country of habitual residence of the consumer will not interfere with
the rules applicable to contracts concluded within those systems or with
the operator of such systems.
(29) For the purposes of this Regulation, references to rights and obligations
constituting the terms and conditions governing the issuance, offers to
the public or public take-over bids of transferable securities and references
to the subscription and redemption of units in collective investment undertakings
should include the terms governing, inter alia, the allocation of securities
or units, rights in the event of over-subscription, withdrawal rights
and similar matters in the context of the offer as well as those matters
referred to in Articles 10, 11, 12 and 13, thus ensuring that all relevant
contractual aspects of an offer binding the issuer or the offeror to the
consumer are governed by a single law.
(30) For the purposes of this Regulation, financial instruments and transferable
securities are those instruments referred to in Article 4 of Directive
2004/39/EC.
(31) Nothing in this Regulation should prejudice the operation of a formal
arrangement designated as a system under Article 2(a) of Directive 98/26/EC
of the European Parliament and of the Council of 19 May 1998 on settlement
finality in payment and securities settlement systems [11].
(32) Owing to the particular nature of contracts of carriage and insurance
contracts, specific provisions should ensure an adequate level of protection
of passengers and policy holders. Therefore, Article 6 should not apply
in the context of those particular contracts.
(33) Where an insurance contract not covering a large risk covers more
than one risk, at least one of which is situated in a Member State and
at least one of which is situated in a third country, the special rules
on insurance contracts in this Regulation should apply only to the risk
or risks situated in the relevant Member State or Member States.
(34) The rule on individual employment contracts should not prejudice
the application of the overriding mandatory provisions of the country
to which a worker is posted in accordance with Directive 96/71/EC of the
European Parliament and of the Council of 16 December 1996 concerning
the posting of workers in the framework of the provision of services [12].
(35) Employees should not be deprived of the protection afforded to them
by provisions which cannot be derogated from by agreement or which can
only be derogated from to their benefit.
(36) As regards individual employment contracts, work carried out in
another country should be regarded as temporary if the employee is expected
to resume working in the country of origin after carrying out his tasks
abroad. The conclusion of a new contract of employment with the original
employer or an employer belonging to the same group of companies as the
original employer should not preclude the employee from being regarded
as carrying out his work in another country temporarily.
(37) 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.
The concept of "overriding mandatory provisions" should be distinguished
from the expression "provisions which cannot be derogated from by
agreement" and should be construed more restrictively.
(38) In the context of voluntary assignment, the term "relationship"
should make it clear that Article 14(1) also applies to the property aspects
of an assignment, as between assignor and assignee, in legal orders where
such aspects are treated separately from the aspects under the law of
obligations. However, the term "relationship" should not be
understood as relating to any relationship that may exist between assignor
and assignee. In particular, it should not cover preliminary questions
as regards a voluntary assignment or a contractual subrogation. The term
should be strictly limited to the aspects which are directly relevant
to the voluntary assignment or contractual subrogation in question.
(39) For the sake of legal certainty there should be a clear definition
of habitual residence, in particular for companies and other bodies, corporate
or unincorporated. Unlike Article 60(1) of Regulation (EC) No 44/2001,
which establishes three criteria, the conflict-of-law rule should proceed
on the basis of a single criterion; otherwise, the parties would be unable
to foresee the law applicable to their situation.
(40) 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, should not exclude the possibility
of inclusion of conflict-of-law rules relating to 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) [13].
(41) 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 when 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.
(42) The Commission will make a proposal to the European Parliament and
to 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 and containing provisions on the law
applicable to contractual obligations.
(43) 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 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 attain its objective.
(44) 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, Ireland has notified
its wish to take part in the adoption and application of the present Regulation.
(45) In accordance with Articles 1 and 2 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, and without prejudice
to Article 4 of the said Protocol, the United Kingdom is not taking part
in the adoption of this Regulation and is not bound by it or subject to
its application.
(46) 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 is not taking part in the
adoption of this Regulation and is not bound by it or subject to its application,
HAVE ADOPTED THIS REGULATION:
CHAPTER I - SCOPE
Article 1 Material scope
- 1. This Regulation
shall apply, in situations involving a conflict of laws, to contractual
obligations in civil and commercial matters.
It shall not apply, in particular, to revenue, customs or administrative
matters.
- 2. The following
shall be excluded from the scope of this Regulation:
(a) questions involving the status or legal
capacity of natural persons, without prejudice to Article 13;
(b) obligations arising out of family relationships
and relationships deemed by the law applicable to such relationships to
have comparable effects, including maintenance obligations;
(c) 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;
(d) 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;
(e) arbitration agreements and agreements on
the choice of court;
(f) questions governed by the law of companies
and other bodies, corporate or unincorporated, such as the creation, by
registration or otherwise, legal capacity, internal organisation or winding-up
of companies and other bodies, corporate or unincorporated, and the personal
liability of officers and members as such for the obligations of the company
or body;
(g) the question whether an agent is able to
bind a principal, or an organ to bind a company or other body corporate
or unincorporated, in relation to a third party;
(h) the constitution of trusts and the relationship
between settlors, trustees and beneficiaries;
(i) obligations arising out of dealings prior
to the conclusion of a contract;
(j) insurance contracts arising out of operations
carried out by organisations other than undertakings referred to in Article
2 of Directive 2002/83/EC of the European Parliament and of the Council
of 5 November 2002 concerning life assurance [14]
the object of which is to provide benefits for employed or self-employed
persons belonging to an undertaking or group of undertakings, or to a
trade or group of trades, in the event of death or survival or of discontinuance
or curtailment of activity, or of sickness related to work or accidents
at work.
- 3. This Regulation
shall not apply to evidence and procedure, without prejudice to Article
18.
- 4. In this Regulation,
the term "Member State" shall mean Member States to which this
Regulation applies. However, in Article 3(4) and Article 7 the term shall
mean all the Member States.
Article 2 Universal application
Any law specified by this Regulation shall be applied whether or not it
is the law of a Member State.
CHAPTER II - UNIFORM RULES
Article 3 Freedom of choice
- 1. A contract shall be governed by the law chosen by the parties. The
choice shall be made expressly or clearly demonstrated by the terms of
the contract or the circumstances of the case. By their choice the parties
can select the law applicable to the whole or to part only of the contract.
- 2. The parties may at any time agree to subject the contract to a law
other than that which previously governed it, whether as a result of an
earlier choice made under this Article or of other provisions of this
Regulation. Any change in the law to be applied that is made after the
conclusion of the contract shall not prejudice its formal validity under
Article 11 or adversely affect the rights of third parties.
- 3. Where all other elements relevant to the situation at the time of
the choice are located in a country other than the country whose law has
been chosen, the choice of the parties shall not prejudice the application
of provisions of the law of that other country which cannot be derogated
from by agreement.
- 4. Where all other elements relevant to the situation at the time of
the choice are located in one or more Member States, the parties' choice
of applicable law other than that of a Member State shall not prejudice
the application of provisions of Community law, where appropriate as implemented
in the Member State of the forum, which cannot be derogated from by agreement.
- 5. The existence and validity of the consent
of the parties as to the choice of the applicable law shall be determined
in accordance with the provisions of Articles 10, 11 and 13.
Article 4 Applicable law in the absence of choice
- 1. To the extent that the law applicable to the contract has not been
chosen in accordance with Article 3 and without prejudice to Articles
5 to 8, the law governing the contract shall be determined as follows:
(a) a contract for the sale of goods shall
be governed by the law of the country where the seller has his habitual
residence;
(b) a contract for the provision of services
shall be governed by the law of the country where the service provider
has his habitual residence;
(c) a contract relating to a right in rem in
immovable property or to a tenancy of immovable property shall be governed
by the law of the country where the property is situated;
(d) notwithstanding point (c), a tenancy of
immovable property concluded for temporary private use for a period of
no more than six consecutive months shall be governed by the law of the
country where the landlord has his habitual residence, provided that the
tenant is a natural person and has his habitual residence in the same
country;
(e) a franchise contract shall be governed
by the law of the country where the franchisee has his habitual residence;
(f) a distribution contract shall be governed
by the law of the country where the distributor has his habitual residence;
(g) a contract for the sale of goods by auction
shall be governed by the law of the country where the auction takes place,
if such a place can be determined;
(h) a contract concluded within a multilateral
system which brings together or facilitates the bringing together of multiple
third-party buying and selling interests in financial instruments, as
defined by Article 4(1), point (17) of Directive 2004/39/EC, in accordance
with non-discretionary rules and governed by a single law, shall be governed
by that law.
- 2. Where the contract is not covered by paragraph 1 or where the elements
of the contract would be covered by more than one of points (a) to (h)
of paragraph 1, the contract shall be governed by the law of the country
where the party required to effect the characteristic performance of the
contract has his habitual residence.
- 3. Where it is clear from all the circumstances of the case that the
contract is manifestly more closely connected with a country other than
that indicated in paragraphs 1 or 2, the law of that other country shall
apply.
- 4. Where the law applicable cannot be determined pursuant to paragraphs
1 or 2, the contract shall be governed by the law of the country with
which it is most closely connected.
Article 5 Contracts of carriage
- 1. To the extent that the law applicable to a contract for the carriage
of goods has not been chosen in accordance with Article 3, the law applicable
shall be the law of the country of habitual residence of the carrier,
provided that the place of receipt or the place of delivery or the habitual
residence of the consignor is also situated in that country. If those
requirements are not met, the law of the country where the place of delivery
as agreed by the parties is situated shall apply.
- 2. To the extent that the law applicable to a contract for the carriage
of passengers has not been chosen by the parties in accordance with the
second subparagraph, the law applicable shall be the law of the country
where the passenger has his habitual residence, provided that either the
place of departure or the place of destination is situated in that country.
If these requirements are not met, the law of the country where the carrier
has his habitual residence shall apply.
The parties may choose as the law applicable to a contract for the carriage
of passengers in accordance with Article 3 only the law of the country
where:
(a) the passenger has his habitual residence;
or
(b) the carrier has his habitual residence;
or
(c) the carrier has his place of central administration;
or
(d) the place of departure is situated; or
(e) the place of destination is situated.
- 3. Where it is clear from all the circumstances of the case that the
contract, in the absence of a choice of law, is manifestly more closely
connected with a country other than that indicated in paragraphs 1 or
2, the law of that other country shall apply.
Article 6 Consumer contracts
- 1. Without prejudice
to Articles 5 and 7, a contract concluded by a natural person for a purpose
which can be regarded as being outside his trade or profession (the consumer)
with another person acting in the exercise of his trade or profession
(the professional) shall be governed by the law of the country where the
consumer has his habitual residence, provided that the professional:
(a) pursues his commercial or professional
activities in the country where the consumer has his habitual residence,
or
(b) by any means, directs such activities to
that country or to several countries including that country,
and the contract falls within the scope of such activities.
- 2. Notwithstanding paragraph 1, the parties
may choose the law applicable to a contract which fulfils the requirements
of paragraph 1, in accordance with Article 3. Such a choice may not, however,
have the result of depriving the consumer of the protection afforded to
him by provisions that cannot be derogated from by agreement by virtue
of the law which, in the absence of choice, would have been applicable
on the basis of paragraph 1.
- 3. If the requirements in points (a) or (b)
of paragraph 1 are not fulfilled, the law applicable to a contract between
a consumer and a professional shall be determined pursuant to Articles
3 and 4.
- 4. Paragraphs
1 and 2 shall not apply to:
(a) a contract for the supply of services where
the services are to be supplied to the consumer exclusively in a country
other than that in which he has his habitual residence;
(b) a contract of carriage other than a contract
relating to package travel within the meaning of Council Directive 90/314/EEC
of 13 June 1990 on package travel, package holidays and package tours
[15];
(c) a contract relating to a right in rem in
immovable property or a tenancy of immovable property other than a contract
relating to the right to use immovable properties on a timeshare basis
within the meaning of Directive 94/47/EC;
(d) rights and obligations which constitute
a financial instrument and rights and obligations constituting the terms
and conditions governing the issuance or offer to the public and public
take-over bids of transferable securities, and the subscription and redemption
of units in collective investment undertakings in so far as these activities
do not constitute provision of a financial service;
(e) a contract concluded within the type of
system falling within the scope of Article 4(1)(h).
Article 7 Insurance contracts
- 1. This Article shall apply to contracts
referred to in paragraph 2, whether or not the risk covered is situated
in a Member State, and to all other insurance contracts covering risks
situated inside the territory of the Member States. It shall not apply
to reinsurance contracts.
- 2. An insurance contract covering a large
risk as defined in Article 5(d) of the First Council Directive 73/239/EEC
of 24 July 1973 on the coordination of laws, regulations and administrative
provisions relating to the taking-up and pursuit of the business of direct
insurance other than life assurance [16]
shall be governed by the law chosen by the parties in accordance with
Article 3 of this Regulation.
To the extent that the applicable law has not been chosen by the parties,
the insurance contract shall be governed by the law of the country where
the insurer has his habitual residence. Where it is clear from all the
circumstances of the case that the contract is manifestly more closely
connected with another country, the law of that other country shall apply.
- 3. In the case of an insurance contract other
than a contract falling within paragraph 2, only the following laws may
be chosen by the parties in accordance with Article 3:
(a) the law of any Member State where the risk
is situated at the time of conclusion of the contract;
(b) the law of the country where the policy
holder has his habitual residence;
(c) in the case of life assurance, the law
of the Member State of which the policy holder is a national;
(d) for insurance contracts covering risks
limited to events occurring in one Member State other than the Member
State where the risk is situated, the law of that Member State;
(e) where the policy holder of a contract falling
under this paragraph pursues a commercial or industrial activity or a
liberal profession and the insurance contract covers two or more risks
which relate to those activities and are situated in different Member
States, the law of any of the Member States concerned or the law of the
country of habitual residence of the policy holder.
Where, in the cases set out in points (a), (b) or (e), the Member States
referred to grant greater freedom of choice of the law applicable to the
insurance contract, the parties may take advantage of that freedom.
To the extent that the law applicable has not been chosen by the parties
in accordance with this paragraph, such a contract shall be governed by
the law of the Member State in which the risk is situated at the time
of conclusion of the contract.
- 4. The following
additional rules shall apply to insurance contracts covering risks for
which a Member State imposes an obligation to take out insurance:
(a) the insurance contract shall not satisfy
the obligation to take out insurance unless it complies with the specific
provisions relating to that insurance laid down by the Member State that
imposes the obligation. Where the law of the Member State in which the
risk is situated and the law of the Member State imposing the obligation
to take out insurance contradict each other, the latter shall prevail;
(b) by way of derogation from paragraphs 2
and 3, a Member State may lay down that the insurance contract shall be
governed by the law of the Member State that imposes the obligation to
take out insurance.
- 5. For the purposes of paragraph 3, third
subparagraph, and paragraph 4, where the contract covers risks situated
in more than one Member State, the contract shall be considered as constituting
several contracts each relating to only one Member State.
- 6. For the purposes of this Article, the
country in which the risk is situated shall be determined in accordance
with Article 2(d) of the Second Council Directive 88/357/EEC of 22 June
1988 on the coordination of laws, regulations and administrative provisions
relating to direct insurance other than life assurance and laying down
provisions to facilitate the effective exercise of freedom to provide
services [17]
and, in the case of life assurance, the country in which the risk is situated
shall be the country of the commitment within the meaning of Article 1(1)(g)
of Directive 2002/83/EC.
Article 8 Individual employment contracts
- 1. An individual employment contract shall be governed by the law chosen
by the parties in accordance with Article 3. Such a choice of law may
not, however, have the result of depriving the employee of the protection
afforded to him by provisions that cannot be derogated from by agreement
under the law that, in the absence of choice, would have been applicable
pursuant to paragraphs 2, 3 and 4 of this Article.
- 2. To the extent that the law applicable to the individual employment
contract has not been chosen by the parties, the contract shall be governed
by the law of the country in which or, failing that, from which the employee
habitually carries out his work in performance of the contract. The country
where the work is habitually carried out shall not be deemed to have changed
if he is temporarily employed in another country.
- 3. Where the law applicable cannot be determined pursuant to paragraph
2, the contract shall be governed by the law of the country where the
place of business through which the employee was engaged is situated.
- 4. Where it appears from the circumstances as a whole that the contract
is more closely connected with a country other than that indicated in
paragraphs 2 or 3, the law of that other country shall apply.
Article 9 Overriding mandatory provisions
- 1. Overriding mandatory provisions are provisions the respect for which
is regarded as crucial by a country for safeguarding its public interests,
such as its political, social or economic organisation, to such an extent
that they are applicable to any situation falling within their scope,
irrespective of the law otherwise applicable to the contract under this
Regulation.
- 2. Nothing in this Regulation shall restrict the application of the
overriding mandatory provisions of the law of the forum.
- 3. Effect may be given to the overriding mandatory provisions of the
law of the country where the obligations arising out of the contract have
to be or have been performed, in so far as those overriding mandatory
provisions render the performance of the contract unlawful. In considering
whether to give effect to those provisions, regard shall be had to their
nature and purpose and to the consequences of their application or non-application.
Article 10 Consent and material validity
- 1. The existence and validity of a contract, or of any term of a contract,
shall be determined by the law which would govern it under this Regulation
if the contract or term were valid.
- 2. Nevertheless, a party, in order to establish that he did not consent,
may rely upon the law of the country in which he has his habitual residence
if it appears from the circumstances that it would not be reasonable to
determine the effect of his conduct in accordance with the law specified
in paragraph 1.
Article 11 Formal validity
- 1. A contract concluded between persons who, or whose agents, are in
the same country at the time of its conclusion is formally valid if it
satisfies the formal requirements of the law which governs it in substance
under this Regulation or of the law of the country where it is concluded.
- 2. A contract concluded between persons who, or whose agents, are in
different countries at the time of its conclusion is formally valid if
it satisfies the formal requirements of the law which governs it in substance
under this Regulation, or of the law of either of the countries where
either of the parties or their agent is present at the time of conclusion,
or of the law of the country where either of the parties had his habitual
residence at that time.
- 3. A unilateral act intended to have legal effect relating to an existing
or contemplated contract is formally valid if it satisfies the formal
requirements of the law which governs or would govern the contract in
substance under this Regulation, or of the law of the country where the
act was done, or of the law of the country where the person by whom it
was done had his habitual residence at that time.
- 4. Paragraphs 1, 2 and 3 of this Article shall not apply to contracts
that fall within the scope of Article 6. The form of such contracts shall
be governed by the law of the country where the consumer has his habitual
residence.
- 5. Notwithstanding paragraphs 1 to 4, a contract
the subject matter of which is a right in rem in immovable property or
a tenancy of immovable property shall be subject to the requirements of
form of the law of the country where the property is situated if by that
law:
(a) those requirements are imposed irrespective
of the country where the contract is concluded and irrespective of the
law governing the contract; and
(b) those requirements cannot be derogated
from by agreement.
Article 12 Scope of the law applicable
- 1. The law applicable to a contract by virtue of this Regulation shall
govern in particular:
(a) interpretation;
(b) performance;
(c) within the limits of the powers conferred
on the court by its procedural law, the consequences of a total or partial
breach of obligations, including the assessment of damages in so far as
it is governed by rules of law;
(d) the various ways of extinguishing obligations,
and prescription and limitation of actions;
(e) the consequences of nullity of the contract.
- 2. In relation to the manner of performance and the steps to be taken
in the event of defective performance, regard shall be had to the law
of the country in which performance takes place.
Article 13 Incapacity
In a contract concluded between persons who are in the same country, a
natural person who would have capacity under the law of that country may
invoke his incapacity resulting from the law of another country, only
if the other party to the contract was aware of that incapacity at the
time of the conclusion of the contract or was not aware thereof as a result
of negligence.
Article 14 Voluntary assignment and contractual subrogation
- 1. The relationship between assignor and assignee under a voluntary
assignment or contractual subrogation of a claim against another person
(the debtor) shall be governed by the law that applies to the contract
between the assignor and assignee under this Regulation.
- 2. The law governing the assigned or subrogated claim shall determine
its assignability, the relationship between the assignee and the debtor,
the conditions under which the assignment or subrogation can be invoked
against the debtor and whether the debtor's obligations have been discharged.
- 3. The concept of assignment in this Article includes outright transfers
of claims, transfers of claims by way of security and pledges or other
security rights over claims.
Article 15 Legal subrogation
Where a person (the creditor) has a contractual claim against another
(the debtor) and a third person has a duty to satisfy the creditor, or
has in fact satisfied the creditor in discharge of that duty, the law
which governs the third person's duty to satisfy the creditor shall determine
whether and to what extent the third person is entitled to exercise against
the debtor the rights which the creditor had against the debtor under
the law governing their relationship.
Article 16 Multiple liability
If a creditor has a claim against several debtors who are liable for the
same claim, and one of the debtors has already satisfied the claim in
whole or in part, the law governing the debtor's obligation towards the
creditor also governs the debtor's right to claim recourse from the other
debtors. The other debtors may rely on the defences they had against the
creditor to the extent allowed by the law governing their obligations
towards the creditor.
Article 17 Set-off
Where the right to set-off is not agreed by the parties, set-off shall
be governed by the law applicable to the claim against which the right
to set-off is asserted.
Article 18 Burden of proof
- 1. The law governing a contractual obligation under this Regulation
shall apply to the extent that, in matters of contractual obligations,
it contains rules which raise presumptions of law or determine the burden
of proof.
- 2. A contract or an act intended to have legal effect may be proved
by any mode of proof recognised by the law of the forum or by any of the
laws referred to in Article 11 under which that contract or act is formally
valid, provided that such mode of proof can be administered by the forum.
CHAPTER III - OTHER PROVISIONS
Article 19 Habitual residence
- 1. For the purposes of this Regulation, the habitual residence of companies
and other bodies, corporate or unincorporated, shall be the place of central
administration. The habitual residence of a natural person acting in the
course of his business activity shall be his principal place of business.
- 2. Where the contract is concluded in the course of the operations of
a branch, agency or any other establishment, or if, under the contract,
performance is the responsibility of such a branch, agency or establishment,
the place where the branch, agency or any other establishment is located
shall be treated as the place of habitual residence.
- 3. For the purposes of determining the habitual residence, the relevant
point in time shall be the time of the conclusion of the contract.
Article 20 Exclusion of renvoi
The application of the law of any country specified by this Regulation
means the application of the rules of law in force in that country other
than its rules of private international law, unless provided otherwise
in this Regulation.
Article 21 Public policy of the forum
The application of a provision of the law of any country specified by
this Regulation may be refused only if such application is manifestly
incompatible with the public policy (ordre public) of the forum.
Article 22 States with more than one legal system
- 1. Where a State comprises several territorial units, each of which
has its own rules of law in respect of contractual obligations, each territorial
unit shall be considered as a country for the purposes of identifying
the law applicable under this Regulation.
- 2. A Member State where different territorial units have their own rules
of law in respect of contractual obligations shall not be required to
apply this Regulation to conflicts solely between the laws of such units.
Article 23 Relationship with other provisions of Community
law
With the exception of Article 7, this Regulation shall not prejudice the
application of provisions of Community law which, in relation to particular
matters, lay down conflict-of-law rules relating to contractual obligations.
Article 24 Relationship with the Rome Convention
- 1. This Regulation shall replace the Rome Convention in the Member States,
except as regards the territories of the Member States which fall within
the territorial scope of that Convention and to which this Regulation
does not apply pursuant to Article 299 of the Treaty.
- 2. In so far as this Regulation replaces the provisions of the Rome
Convention, any reference to that Convention shall be understood as a
reference to this Regulation.
Article 25 Relationship with existing international
conventions
- 1. This Regulation shall not prejudice the application of international
conventions to which one or more Member States are parties at the time
when this Regulation is adopted and which lay down conflict-of-law rules
relating to contractual obligations.
- 2. However, this Regulation shall, as between Member States, take precedence
over conventions concluded exclusively between two or more of them in
so far as such conventions concern matters governed by this Regulation.
Article 26 List of Conventions
- 1. By 17 June 2009, Member States shall notify the Commission of the
conventions referred to in Article 25(1). After that date, Member States
shall notify the Commission of all denunciations of such conventions.
- 2. Within six months of receipt of the notifications referred to in
paragraph 1, the Commission shall publish in the Official Journal of the
European Union:
(a) a list of the conventions referred to in
paragraph 1;
(b) the denunciations referred to in paragraph
1.
Article 27 Review clause
- 1. By 17 June 2013, the Commission shall submit to the European Parliament,
the Council and the European Economic and Social Committee a report on
the application of this Regulation. If appropriate, the report shall be
accompanied by proposals to amend this Regulation. The report shall include:
(a) a study on the law applicable to insurance contracts and an assessment
of the impact of the provisions to be introduced, if any; and
(b) an evaluation on the application of Article 6, in particular as regards
the coherence of Community law in the field of consumer protection.
- 2. By 17 June 2010, the Commission shall submit to the European Parliament,
the Council and the European Economic and Social Committee a report on
the question of the effectiveness of an assignment or subrogation of a
claim against third parties and the priority of the assigned or subrogated
claim over a right of another person. The report shall be accompanied,
if appropriate, by a proposal to amend this Regulation and an assessment
of the impact of the provisions to be introduced.
Article 28 Application in time
This Regulation shall apply to contracts concluded as from 17 December 2009.
CHAPTER IV - FINAL PROVISIONS
Article 29 Entry into force and application
This Regulation shall enter into force on the 20th day following its publication
in the Official Journal of the European Union.
It shall apply from 17 December 2009 except for Article 26 which shall
apply from 17 June 2009.
This Regulation shall be binding in its entirety and directly applicable
in the Member States in accordance with the Treaty establishing the European
Community.
Done at Strasbourg, 17 June 2008.
For the European Parliament
The President H.-G. Pötterin
For the Council
The President J. Lenarcic
[1] OJ C 318, 23.12.2006, p. 56.
[2] Opinion of the European Parliament of 29 November 2007 (not yet published
in the Official Journal) and Council Decision of 5 June 2008.
[3] OJ C 12, 15.1.2001, p. 1.
[4] OJ C 53, 3.3.2005, p. 1.
[5] OJ L 12, 16.1.2001, p. 1. Regulation as last amended by Regulation
(EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).
[6] OJ L 199, 31.7.2007, p. 40.
[7] OJ C 334, 30.12.2005, p. 1.
[8] OJ L 145, 30.4.2004, p. 1. Directive as last amended by Directive
2008/10/EC (OJ L 76, 19.3.2008, p. 33).
[9] OJ L 375, 31.12.1985, p. 3. Directive as last amended by Directive
2008/18/EC of the European Parliament and of the Council (OJ L 76, 19.3.2008,
p. 42).
[10] OJ L 280, 29.10.1994, p. 83.
[11] OJ L 166, 11.6.1998, p. 45.
[12] OJ L 18, 21.1.1997, p. 1.
[13] OJ L 178, 17.7.2000, p. 1.
[14] OJ L 345, 19.12.2002, p. 1. Directive as last amended by Directive
2008/19/EC (OJ L 76, 19.3.2008, p. 44).
[15] OJ L 158, 23.6.1990, p. 59.
[16] OJ L 228, 16.8.1973, p. 3. Directive as last amended by Directive
2005/68/EC of the European Parliament and of the Council (OJ L 323, 9.12.2005,
p. 1).
[17] OJ L 172, 4.7.1988, p. 1. Directive as last amended by Directive
2005/14/EC of the European Parliament and of the Council (OJ L 149, 11.6.2005,
p. 14).
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