Brexit effects on Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II)*

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What the Regulation deals with

Regulation (EC) No 864/2007 provides for the uniform rules the courts of the Member States of the European Union shall apply in order to identify the law applicable to non-contractual obligations arising out of unlawful facts, unjustified enrichment, negotiorum gestio and culpa in contrahendo.

The conditions of applicability of the Regulation

The applicability of the Regulation does not depend on the fact that the persons involved in the case or the case itself are connected to a Member State rather than to a third State.

The Regulation, moreover, as provided for by Art. 3, has a universal character. This means that its rules operate regardless of whether the law they refer to is the law of a State bound by the Regulation or not.

What changes after the end of the transitional period

Indeed, with the exception indicated immediately below, the end of the transitional period does not involve any alteration of the normal operation of the Regulation in Italy and in the other Member States. Therefore, the rules of the Regulation will continue to be applied even in cases related to the United Kingdom, and may continue to determine, depending on the circumstances, the application of English law, Scottish law or Northern Irish law.

Art. 14, para. 3, of the Regulation, regarding the choice of applicable law, provides for the hypothesis in which ” all the elements relevant to the situation at the time when the event giving rise to the damage occurs are located in one or more of the Member States “, establishing that in such eventuality the choice of the law of a third State shall not prejudice the application of provisions of EU law concerning non-contractual obligations, “where appropriate as implemented in the Member State of the forum”.

In order to assess the applicability of Art. 14, para. 3, to situations whose ‘relevant elements’ are located in the United Kingdom, it must be established whether the fact giving rise to the damage occurred when the United Kingdom was still a Member State of the European Union (in the sense set out immediately below), or it was not anymore. In the first case, the situation must be considered localized in the European Union for the purposes of Art. 14, para. 3. Not so, however, in the second.

According to the opinion that appears to be preferable, based on the consideration of the purpose of Art. 14, para. 3 (the contrast to the possible European Union mandatory rules through a choice of law), the relevant date for the purposes of the assessment now referred to is not 20 February 2020, but 1 January 2021, given that the United Kingdom, although having lost its status as a Member of the European Union on the first of the two dates, remained bound to respect European Union law, by virtue of the Withdrawal Agreement, until 31 December 2020.

Pietro Franzina

Note – The legal analysis set out, representing the personal contribution of the author, does not bind the partners of the EJNita – Building Bridges project and does not in any way constitute legal advice.

* The English translation is provided for by the Aldricus Editorial Board; the original version by the author, in Italian, is available in this portal in the corresponding Italian section.