An issue of some interest arising out of Article 1(1) is that of State Immunity. The last sentence of the Article states:
“It shall not apply, in particular, to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).” 81
The uncertainty is whether the Regulation would apply to accidents involving military or police vehicles, or those vehicles used to transport foreign diplomats? For example, would an action for damages resulting from a collision in England, between a French tourist and an English police vehicle, which had been travelling in excess of the speed limit in pursuit of a suspect, fall within the scope of Rome II? Alternatively, would Rome II apply to a collision in Cyprus, between a Dutch pedestrian and an English military vehicle, which was not travelling within one of the UK Sovereign Base Areas in Cyprus?82
Although Article 1 of the Brussels Convention (and subsequently the Brussels Regulation) did not specifically exclude acta iure imperii, a number of cases fell to be decided where the court was
asked to consider whether the proceedings of the case concerned an act of a public nature, such that it did not fall within the term ‘civil and commercial matter’. The first notable case was that of Eurocontrol83 With regard to acts of state authority the court stated:
81 The provision in Article 1(1) mirrors the generally recognised principle of international law that a state cannot be sued in the
courts of another state for acts which were done in the exercise of public authority. This principle was enshrined in the European Convention on State Immunity of 16 May 1972. Although it should be noted that only 8 states are thus far signatories to the Convention. It is also contained in the United Nations Convention on Jurisdictional Immunities of States and Their Property, New York, 2 December 2004. Article 11 of the European Convention excludes immunity in proceedings relating to personal injury or damage to tangible property. This is enacted in English law by s5 of the State Immunity Act 1978. However, despite this it is still necessary to consider whether under Rome II a claim arising out of an act in the exercise of state authority in certain circumstances would fall within the Regulation’s scope.
82 This scenario and the reasons it could arise are explained in detail below.
83 Case C-29/76 Lufttransportunternehmen GmbH & Co. KG v Eurocontrol [1976] ECR 1541. This case involved a dispute over
payment of route charges for the use of air safety services provided by Eurocontrol (the European Organisation for the Safety of Air Navigation) to LTU as the owners of aircraft, was held to concern the exercise of public power by a public authority.
3. Rome II Background and Scope
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“Although certain judgments given in actions between a public authority and a person governed by private law may fall within the area of application of the Convention, this is not so where the public authority acts in the exercise of its powers. Such is the case in a dispute which, like that between the parties to the main action, concerns the recovery of charges payable by a person governed by private law to a national or international body governed by public law for the use of equipment and services provided by such body, in particular where such use is obligatory and exclusive.” 84
Actions by officials of a bank were subsequently held, by the English court, to fall outside of Brussels I in Grovit.85 The actions of bank officials could not be deprived of their public law
nature because they constituted the performance of governmental supervisory function, which had been delegated to the bank by the Dutch Government.
However, this does not entirely preclude actions by private individuals against the state from the term ‘civil and commercial matter’. The CJEU has ruled that certain actions between a public
authority and a person governed by private law may come within the scope of the Brussels Convention. What is key is that the public authority must not be acting in the exercise of its public powers. In Sonntag86 The CJEU held that a teacher-pupil relationship was essentially
private in nature, since in most Member States the acts of a school teacher are not manifestations of public authority power. The duty owed to pupils is the same whether the teacher is employed by the State or by a private school. The case did, therefore, fall within the term civil and commercial matters.
84 Ibid, [4].
85 Grovit v De Nederlandsche Bank [2007] EWCA Civ 953; [2008] 1 WLR 51. Here, in exercise of regulatory and supervisory
functions delegated by the Dutch Government, officials of a bank refused to grant a request for registration in the Netherlands by a group of companies operating money transaction offices. A letter was sent stating the reasons for the refusal, including that the Directors and Executives of the group of companies were untrustworthy in a number of regards. The claimant began proceedings for libel.
86 Case C- 172/91 Volker Sonntag v Hans Waidmann, Elisabeth Waidmann and Stefan Waidmann [1993] ECR I-1963. In this case a
school teacher tried to argue that a case against him for negligence following the death of a pupil under his care on a school trip did not fall within the meaning of ‘civil or commercial matter’ because he was the holder of a public office and his supervision of pupils was, as such, governed by administrative law.
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I. Vehicles Driven By Those Holding Public Office
How does this impact on the cross border police chase, described above? Would any claim arising out of an accident, which resulted from the excessive speed which the police officer was travelling at, be decided under the law chosen by Rome II? The answer is difficult because, whilst on one hand it is the status of the police officer as an official of the state which permits him to travel at speed in pursuit of a suspect, on the other hand, this could be a matter of private law where it is open to the victim to prove that the defendant is liable to her under the normal rules of civil law.
In England for example, in the case of Gaynor v. Allen,87 it was held that regardless of s3 of the
Road Traffic Act of 1934, which exempted police officers from observing the speed limit in certain cases, the officer in question was in exactly the same position as any "civilian" driver, and owed the same duty to a pedestrian whom he had knocked down whilst riding his motorcycle at 60mph in an area where the limit was 40mph, in the exercise of his duties. More than this, in the case of Marshall v. Osmond,88 it was held that not only did the police owe a duty of care to other
road users in a general sense, but that this also included a duty towards the suspect they were pursuing at high speed. In the case, when the vehicle being pursued stopped and the suspect tried to evade capture by running away, the police car negligently hit the claimant causing him injury. In the leading judgement Sir John Donaldson MR held that:
“I think that the duty owed by a police driver to the suspect is, ... the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in all the circumstances.” 89
87 [1959] 2 Q.B. 403. It has however been held that the fact that an emergency vehicle is speeding is not in and of itself evidence
of negligence. See S (A child) v. Keyse [2001] EWCA Civ 715; (2001) 151 N.L.J. 817.
88 [1983] Q.B. 1034. 89 Ibid, 1037.
3. Rome II Background and Scope
66 To this can be added consideration of the requirements of the MID. Article 590 states, in relation
to the obligation placed on EU Member States to ensure that every vehicle in its territory is covered by third party insurance, that:
“1.A Member State may derogate from Article 3 in respect of certain natural or legal persons, public or private; a list of such persons shall be drawn up by the State concerned and communicated to the other Member States and to the Commission.
A Member State so derogating shall take the appropriate measures to ensure that compensation is paid in respect of any loss or injury caused in its territory and in the territory of other Member States by vehicles belonging to such persons.”
This provision demonstrates, at the level of the EU, a desire to ensure that all victims of road traffic accidents receive compensation, regardless of who causes the accident and whether or not the vehicle is exempt from the scheme of compulsory third party insurance. It can be reasoned that, the requirement to pay compensation, together with the fact that in England public office holders are subject to the same rules on liability as other road users, suggests that driving is an activity whereby the driver undertakes a duty of care to other road users, regardless of whether he is present on the road in a private or public capacity. Consequently, it may be said that, in the main, it should matter not whether a driver is a private person, or acting on behalf of the state when he causes an accident for the purposes of Rome II. Any cross border claim should be governed by the law designated by Rome II.
However, the phrase ‘civil and commercial matter’ is one which, as demonstrated by the cases
concerning the Brussels Convention, requires uniform and autonomous interpretation. In coming to a position on this point the CJEU would likely take into account the situation in a number of the Member States. If the matter were dealt with in a radically different way in other
67 states it is not inconceivable that accidents, caused by those acting in the capacity of a public office holder, could be ruled to fall outside of the scope of Rome II.