Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS 26 (GEDIP). This proposal was an elegant, sophisticated, and flexible document which has influenced the general content and coverage of Rome II, although not where it matters most. In May 2002, the European Commission published a preliminary draft 27 proposal and invited comments from the public. In addition to holding public hearings, the Commission received, and posted on the internet, more than eighty written commentaries from interested parties, including trade and industry groups, 28 professional organizations, governments, practitioners, and academics. Although the majority of the commentaries came from industry groups and tended to support the most regressive elements of the preliminary draft, the whole process is a good example of European democracy at work. 29 The Commission finalized its proposal on July 22, 2003. The proposal was accompanied by a detailed Explanatory Report (hereafter “Report”) and an article-byarticle commentary. This Report is the only complete explanation of the thinking underlying Rome II and it remains authoritative as to all of the remaining unamended provisions. The process then shifted to the European Parliament where the rapporteur, 30 British MEP Diana Wallis, continued to solicit feedback, especially from 31 academics. The rapporteur tried valiantly to inject some flexibility into the Commission’s proposal and, on July 6, 2005, she succeeded in having Parliament 26. See Proposal for a European Convention on the Law Applicable to Non-contractual Obligations adopted at the Luxembourg meeting of Sept. 25-28, 1998, available at http://www.drt.ucl.ac.be/gedip/gedip-documents-8pe.html. 27. See Preliminary Draft Proposal for a European Council Regulation on the Law Applicable to Non-Contractual Obligations, available at http://europa.eu.int/comm.justice_home/ unit/civil/consultation/I ndex_en.html [hereinafter Commission, Preliminary Draft Proposal]. 28. For a comprehensive academic proposal put forward during this period by the Hamburg Group of Private International Law, see Comments on the European Commission’s Draft Proposal for a European Council Regulation on the Law Applicable to Non-Contractual Obligations (Oct. 10, 2002), 67 RABELSZ 1 (2003). 29. See Commission of the European Communities, Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations, (COM 427) (2003) final, 2003/0168(C)D), Brussels, (July 22, 2003) [hereinafter Commission Proposal]. For a critique of this proposal, see Symeon C. Symeonides, Tort Conflicts and Rome II; A View from Across, in FESTSCHRIFT FÜR ERIK JAYME 935 (H-P. Mansel, et al., eds. 2004). 30. Ms. Wallis is currently the Vice President of the European Parliament and is the former leader of the Liberal Democrat European Parliamentary Party (LDEPP). She is an English solicitor who also studied law in Belgium, Germany, and Switzerland and is fluent in French and German. For more information on her background and work in the European Parliament, see http://www.dianawallismep.org.uk/. 31. In the interest of full disclosure, it should be noted that the undersigned author is one of the academics consulted by the rapporteur. 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 6 OF 46
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS 32 adopt, on first reading, several amendments to that effect. However, the Council, representing the member states, and the Commission rejected most of the amendments. On second reading, Parliament moved closer to the Commission’s positions, 33 34 however, the Council and Commission remained unsatisfied. The process then shifted to a Conciliation Committee, consisting of representatives of the Council, Commission, and Parliament. The ensuing “trialogue” bridged the differences with a compromise text that was adopted by Parliament on third reading, on July 11, 35 2007. This is the final text and is referred to hereafter as “Rome II.” A. Scope 32. See EUR. PARL., P6_TA(2005)0284. (Codecision procedure: first reading.. 33. See EUR. PARL., P6_TA(2007)0006. (Codecision procedure: second reading.. 34. See Common Position (EC) No 22/2006 adopted by the Council on Sept. 25, 2006, Oy C 289E/68 (Nov. 28, 2006). 35. See supra note 1. III. GENERAL FEATURES Article 1 of Rome II defines the scope of the Regulation. It applies to non-contractual obligations in “civil and commercial matters,” in “situations involving a conflict of laws,” namely, situations having multistate contacts of the 36 kind and pertinence that implicate the laws of more than one state. The Regulation does not apply to “revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta jure imperii),” or to obligations arising out of: marriage, family or similar relationships; matrimonial property regimes; wills and succession; bills of exchange, cheques, promissory notes and other negotiable instruments; the law of companies; relations between the settlors, trustees and beneficiaries of voluntary trusts; nuclear damage; violations of 37 privacy and rights relating to personality, including defamation. The last topic was initially included in the scope of Rome II, but the proposed article proved most controversial attracting more commentary, especially from the publishing industry, than any other provision. Eventually, the article was dropped, but a Commission Statement accompanying Rome II pledges to study the subject again and report to 38 Parliament by December 2008. 36. Hereafter, the word “state” is used interchangeably with the word “country.” 37. The Regulation also does not apply to evidence and procedure, except as provided in Articles 21 and 22, which deal with the proof of juridical acts and presumptions regarding the burden of proof in torts. 38. For recent academic commentary on the subject, see Christopher J. Kunke, Rome II and Defamation: Will the Tail Wag the Dog? 19 EMORY INT’L L. REV. 1733 (2005); Aaron Warshaw, Uncertainty from Abroad: Rome II and the Choice of Law for Defamation Claims, (continued...) 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 7 OF 46
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Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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