International private law (European Union)

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The international private law of the European Union comprises the unifying conflict of laws regulations adopted by it .

overview

There are seven ordinances from 2007 to 2016:

The official short names "Rome I" and "Rome II" date back to the 1980 in Rome completed European debt contract convention back, which basically I Regulation Rome was replaced by.

While the Rome I, II and III ordinances are limited to conflict of laws, the other four ordinances also regulate questions of international civil procedure law .

Rome I Regulation

The Regulation (EC) no. 593/2008 of the European Parliament and of the Council on the law applicable to contractual obligations, short term Rome I Regulation of 17 June 2008 is a regulation that the private international law of contractual of the European Union in the field Regulates obligations . It came into force on December 17, 2009 in all EU states with the exception of Denmark , where it replaced the EVÜ , which was implemented in Germany by Articles 27 to 37 EGBGB , which were repealed at the same time . Ireland and the United Kingdom of Great Britain and Northern Ireland have made use of their option to participate in the Rome I Regulation.

applicability

In terms of time, the ordinance applies to all contracts concluded from December 17, 2009, Art. 28 Rome I Regulation. In fact, it applies to all contractual obligations in civil and commercial matters that are related to the law of different states, with the exception of the areas mentioned in Art. 1, Paragraph 1, Sentence 2 and Paragraph 2 of Rome I Regulation.

Principles

The regulation is friendly to international law. International agreements on applicable law with non-member states take precedence, Art. 25 Rome I Regulation. All references are consistently reference standards , Art. 20 Rome I-VO. The most important connecting criterion is the habitual residence of the contracting parties, which is explained in more detail in Art. 19 Rome I-VO.

Applicable Law

Basic rule

As a central general rule, Art. 3 Rome I Regulation provides for free choice of law, which, however, is subject to numerous restrictions. The choice of law of the parties can either be made expressly or result clearly from the contract or the circumstances (para. 1). If the parties have not made a choice of law, Art. 4 Rome I Regulation applies, unless a special contract statute of Art. 5 ff. Rome I Regulation takes precedence.

Via Art. 9 Para. 2 Rome I Regulation, the court seised can apply individual norms of its own law to a debt relationship despite a different law that is actually applicable. The condition is that these are so-called interference norms, which are defined in Art. 9 Para. 1 Rome I-VO.

Special regulations for individual contracts

Transport contracts ( Art. 5 )

Art. 5 Rome I-VO distinguishes between contracts for the transport of goods and contracts for the transport of people.

Free choice of law applies to the transport of goods. In the absence of a choice of law, the usual place of residence of the carrier is used if the place of acceptance or delivery of the goods is in this country or the sender has his usual place of residence there. If these requirements are also not met, the law at the place of delivery applies.

In the case of contracts for passenger transport, on the other hand, only a limited choice of law is possible, which serves to protect the regularly weaker person to be transported. Only the right at the usual place of residence of the person who is to be transported, the right at the usual place of residence of the carrier, the right at the location of the carrier's head office, the place of departure or the destination may be chosen. In the absence of a choice of law, the law of the habitual residence of the person who is to be transported is applicable if the start or destination is also in this country. Otherwise, the law of the carrier's habitual residence applies.

Art. 5 Rome I-VO takes precedence over Art. 6 and is therefore also applicable if a consumer is involved, unless it is a package tour contract .

Consumer contracts ( Art. 6 )

Article 6 is intended to ensure the protection of consumers who areregularly inferior to the entrepreneur, both intellectually and economically. For this purpose, contracts that have been concluded with a commercial provider for private purposes are generally subject to the law of the consumer's habitual residence, Art. 6 Para. 1 Rome I Regulation. The private contract purpose must be recognizable for the entrepreneur based on the circumstances.

Art. 6 para. 2 Rome I-VO restricts the fundamentally acc. Art. 3 Rome I-VO permitted choice of law. It is true that the applicable law can be freely chosen, but the consumer-protective minimum standards of his home law always also apply in favor of the consumer.

Insurance contracts ( Art. 7 )

The primary purpose of Art. 7 Rome I Regulation is to protect the regularly weaker policyholder. It is objectively applicable to major risks regardless of where they are located, and to all other insurance contracts (so-called mass risks) if they are located in a Member State. The location is determined in accordance with Paragraph 6. It is regularly identical to the usual place of residence of the policyholder. Reinsurance contracts are excluded as policyholders do not need to be protected here.

For major risks, the free choice of law applies; alternatively, the law of the country in which the insurer has his habitual residence is applied, unless the contract shows an obviously closer connection to another country according to "the entirety of the circumstances", Art. 7 para 2 Rome I-VO.

For mass risks, Art. 7 Para. 3 Rome I Regulation restricts the choice of law to protect the policyholder and, alternatively, is linked to the location of the risk.

Individual employment contracts ( Art. 8 )

According to Art. 8 Para. 2, 3 and 4 Rome I Regulation, employment contracts are either subject to the law of the state in which the employee usually does his work, if there is no such state, the law of the establishment of the employer who hired the employee and in the case of a closer connection to another state its law. A choice of law is acc. Paragraph 1 is also possible and generally takes priority. However, this must not deprive the employee of the protection to which he would be accorded the law applicable under Paragraphs 2-4. Also Art. 8 Rome I Regulation serves to protect the structurally weaker party, in this case the employee.

Rome II Regulation

The Regulation (EC) no. 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations, short term Rome II Regulation, dated 11 July 2007 is a regulation that the private international law of the European Community non-contractual in the area Regulates obligations . It came into force on January 11, 2009. In the area of ​​contractual obligations, it is supplemented by the Rome I Regulation.

Chapter I. Scope

The regulation enjoys primacy over national law of the EU Member States. It does not apply in Denmark ( Art. 1 Para. 4), but according to Art. 3 it is applied by all other Member States in relation to Denmark ( loi uniforme ). According to Art. 25 (2), it does not apply within territorially divided states with multiple rights (this applies, for example, to the United Kingdom of Great Britain and Northern Ireland and Spain ).

Material scope

Based on Art. 1 EuGVVO , the regulation only applies to civil and commercial matters. The delimitation criteria developed for the EuGVVO apply accordingly. It does not apply to disputes under public law (acta iure imperii); this also excludes official liability .

Its scope includes offenses , business management without commission , unjust enrichment and also culpa in contrahendo ( Art. 2 Para. 1). Exceptions according to Art. 1 Para. 2 are among others

Temporal scope

According to Art. 31 , autonomous state law continues to apply to cases that occurred up to January 10, 2009. The term "damage-causing event" does not limit the scope of application according to Art. 2, Paragraph 1 to tort law, but also includes behavior that is relevant to culpability in the initiation of a contract, for an enrichment process or for management without a mandate.

Chapter II. Prohibited Actions

principle

Basic connection (Art. 4 Para. 1)

According to Art. 4 Para. 1, the place of success, ie the place of occurrence of the damage, is generally linked. However, only the place of occurrence of the direct damage is decisive , indirect damage is excluded by Art. 4, Paragraph 1, last half-sentence.

Example: The victim of an accident in France dies in Austria.
The place of success of the direct damage is only France.

According to the traditional view, in the conflict of laws of almost all countries, the crime scene of the illegal act, the lex loci delicti , was linked. According to Art. 40 Paragraph 1 of the German EGBGB , however, the crime scene is both the scene of the action and the scene of the result. According to the regulation, this ubiquity principle is no longer followed. The legal political purpose is seen in favoring the injured party.

If an act leads to immediate damage in different countries ( stray crime , also multi-state crime ), the solution is controversial. The prevailing opinion follows the so-called mosaic theory . This states that each place of success determines the applicable law for the damage that has occurred in that state. According to another opinion, a focal point should be formed where the damage is concentrated.

Common habitual residence (Art. 4 Para. 2)

Article 4, Paragraph 2 has priority over Paragraph 1: If the injured party and the injured party have their habitual residence in the same country, the law of that country applies.

Example: A German and an Austrian both have their habitual residence in Italy. The German hits the Austrian with his car in Spain and injures him.
As both have their habitual residence in Italy, Italian law applies.

Alternative clause (Art. 4 Para. 3)

The escape clause of Art. 4 Paragraph 3 supersedes Paragraph 1 if there is an obviously closer relationship with another state. This is particularly important in the case of an already existing legal relationship (contractual relationship, offenses involving fiancées).

Choice of law (Art. 14)

According to Art. 14 of the regulation, the free choice of law is possible for all legal obligations . The subsequent choice of law is according to lit. a possible without restrictions; the previous choice of law only for parties engaged in commercial activity.

Special regulations for individual offenses

Product liability (Art. 5)

For the Product Liability a special connection applies to the regulation in the following step ratio:

  1. the habitual residence of the injured party, provided the product was placed on the market in this country
  2. the place of purchase of the product, provided the product was placed on the market in this country
  3. the location of the primary damage, provided the product was placed on the market in this country.

Art. 5 para. 1 sentence 2 contains a restriction in the event that the placing on the market of the product was not reasonably foreseeable; then the law of the country in which the injured party is habitually resident is applied.

Chapter III. Unjust enrichment, management without commission and fault in contract negotiations

Unjust enrichment (Art. 10)

Art. 10 differentiatesbetween two casesfor unjust enrichment :

  1. If a claim to enrichment is linked to an existing legal relationship, the law of the state of this legal relationship applies (Paragraph 1)
  2. If such a legal relationship cannot be linked, the law of the state of the common habitual residence applies, alternatively the place of enrichment.

Management without engagement (Art. 11)

The structure of the connection for the unjust enrichment was transferred accordingly to the management without an order .

Culpa in contrahendo (Art. 12)

The culpa in contrahendo is treated according to the law that is or should have been applicable to the contract; Alternatively, Paragraph 2 contains an escape clause.

Chapter IV. Free choice of law

Art. 14 stipulates that the parties can subsequently (ie after the occurrence of the substantiating event) choose the applicable law. If both parties pursue commercial activities, the right can also be chosen in anticipation (para. 1 lit. b). Paragraphs 2 and 3 regulate the relationship to mandatory standards of the damage location.

Chapter V. Common regulations

Scope of the applicable law (Art. 15)

Art. 15 regulates the scope of application of the respective statutes. The regulation is not final.

Statutory subrogation (Art. 19)

When statutory subrogation of claims from non-contractual obligations, the law of the State is applied, the law brings to subrogation.

Multiple liability (Art. 20)

The right of recourse by an injuring party against other co-injuring parties (in Germany, for example, Section 426 (1) in conjunction with Section 840 (1) BGB) is subject to the law of the state, according to which the tortious claim is also based. However, if the right of recourse does exist due to a legal session (in Germany, for example under Section 426 (2)), Art. 19 applies.

Chapter VI. Other regulations

The other provisions contain provisions on the general part of international private law and the relationship to other legal norms.

Ordinary residence (Art. 23)

The place of habitual residence for companies , associations and legal entities is set at the place of their head office. If a natural person acts in the context of their professional activity, their habitual residence is the place of their main place of business.

Exclusion of referral back and further referral (Art. 24)

The renvoi , which means referring to the conflict of laws of a state, is excluded.

Public order in the state of the court seised (Art. 26)

The application of a substantive rule of the law applicable may be omitted if the substantive rule contradicts the public policy of the state of the competent judge of that state.

Relationship to other Community legal acts (Art. 27)

Other Community acts remain unaffected by the regulation.

Relationship to existing international agreements (Art. 28)

According to Art. 28 Para. 1, existing international treaties (cf. the list in Art. 29) of the member states remain in force, unless these apply exclusively between the member states (Art. 28 Para. 2). This is to prevent the Member States concerned from being forced by the regulation to violate international treaties.

Rome III regulation

The Regulation (EC) no. 1259/2010 of the European Parliament and of the Council on the law applicable to divorce and legal separation of the marriage law, abbreviation Rome III Regulation of 20 December 2010 is a regulation , which the International Private Law of the European Union regulates divorce. It has been in force since June 21, 2012 with the exception of Article 17 in all participating EU member states (cf. Article 21 of the Regulation). The regulation applies regardless of whether it refers to the legal system of a member state of the EU or to another state. It is an autonomous EU conflict of laws law - the same applies here as with the Rome I and Rome II regulations. The EGBGB, which was previously also applicable in this area of ​​law, in particular Art. 17 i. V. with Art. 14 EGBGB. The ordinance serves to determine which national law is to be applied to a divorce in a cross-border situation (cf. also Art. 1 (1) of the ordinance). So far, according to Art. 17 i. V. with Art. 14 Para. 1 EGBGB based on the nationality of the spouse. According to Art. 8 of the regulation, the law of the (habitual) place of residence of the spouses now comes into play.

The option of choosing the applicable law has also been expanded (Art. 5). This takes precedence over the regulation in Art. 8. A reference to the law of another state is only possible if this legal system actually enables a divorce and both spouses have equal rights (Art. 10). In this respect, the standard is to be understood as a special case of the general public policy provision in Art.

Another special feature, according to which the law of the state referred to is not applicable, is contained in Article 13 of the regulation. If a member state does not provide for the possibility of a divorce under its own legal system, the judge should not be forced to conduct a divorce under foreign law. This regulation, which was originally designed for Malta, has now come to an end with the introduction of divorce law (as a result of a referendum on May 29, 2011), as all EU member states now provide for divorce in their legal systems.

literature

Collections of laws

Comments

General literature

  • Staudinger, Ansgar / Steinrötter, Björn: European International Private Law: The Rome Regulations , Legal Worksheets (JA) 2011, 241 ( PDF )
  • Mauer, Reinhold / Sadtler, Susanne: "Rome I and international labor law", DB 2007, p. 1586.

Rome II

  • Thomas Rauscher (Ed.): EuZPR / EuIPR, Volume: Rom I-VO, Rom II-VO . Sellier European Law Publishers, Munich 2011, ISBN 978-3-86653-091-1 .
  • Daphne Beig: Rome II VO. New conflict of laws for non-contractual obligations . Manz, Vienna 2009, ISBN 978-3-214-00644-0 .
  • Claus-Wilhelm Fröhlich: The private international law of non-contractual obligations according to the Rome-II regulation. A comparative study of the choice of law rules in tort under European, English and German law . Kovač, Hamburg 2008, ISBN 978-3-8300-3442-1 .
  • Thomas Rauscher : International Private Law. With international and European procedural law . 3. Edition. CF Müller, Heidelberg 2009, ISBN 978-3-8114-9729-0 .
  • Staudinger, Ansgar / Steinrötter, Björn: European International Private Law: The Rome Regulations , Legal Worksheets (JA) 2011, 241 ( PDF )

Rome III

Magazines

Individual evidence

  1. ↑ ELI : http://data.europa.eu/eli/reg/2007/864/2009-01-11
  2. ↑ ELI: http://data.europa.eu/eli/reg/2008/593/2008-07-24
  3. ↑ ELI: http://data.europa.eu/eli/reg/2009/4(1)/2018-12-31
  4. ↑ ELI: http://data.europa.eu/eli/reg/2010/1259/oj
  5. ↑ ELI: http://data.europa.eu/eli/reg/2012/650/2012-07-05
  6. ↑ ELI: http://data.europa.eu/eli/reg/2016/1103/2016-07-08
  7. ↑ ELI: http://data.europa.eu/eli/reg/2016/1104/2016-07-08
  8. ↑ Regulation (EC) No. 593/2008 of June 17, 2008 (PDF)
  9. ↑ Palandt- Thorn , 70th edition 2011, Art. 5 Rome I-VO, Rn. 7th
  10. ↑ Recital No. 23; Ferrari, International Contract Law , 2nd edition 2011, Art. 6 Rome I-VO Rn. 1
  11. ↑ Ferrari, Internationales contract law , 2nd edition 2011, Art. 6 Rome I-VO Rn. 13
  12. ↑ Ferrari, Internationales contract law , 2nd edition 2011, Art. 7 Rome I-VO Rn. 4th
  13. ↑ For the term see Ferrari, Internationales contract law , 2nd edition 2011, Art. 7 Rome I-VO Rn. 22 ff.
  14. ↑ Palandt- Thorn , 70th edition 2011, Art. 7 Rome I-VO, Rn. 6th
  15. ↑ Palandt- Thorn , 70th edition 2011, Art. 7 Rome I-VO, Rn. 8th; Exceptions are real estate (location), vehicle insurance (place of registration) and travel insurance up to a term of four months (place where the policyholder has made the declaration of intent to conclude the insurance contract ).
  16. ↑ Martiny in Munich Commentary on the BGB , 5th edition 2010, Art. 7 Rome I-VO Rn. 17th
  17. ↑ Palandt- Thorn , 70th edition 2011, Art. 7 Rome I-VO, Rn. 7th
  18. ↑ Recital No. 35
  19. ↑ BeckOK BGB / Spickhoff, as of February 1, 2013, VO (EG) 864/2007 Art. 32 Rn. 3
  20. ↑ Regulation (EC) No. 1259/2010 of December 20, 2010 (PDF)
  21. ↑ Tom Stiebert in juraexamen.info, IPR: Rome III regulation entered into force
  22. ↑ Tom Stiebert in juraexamen.info, IPR: Rome III regulation entered into force

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