The final clause of Rome II states:
“This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.”
This, however, has to be read together with Article 1(4), which makes clear that for Rome II ‘Member State’ refers to all the EU Member States apart from Denmark. Accordingly, Rome II is applicable in all the courts of the EU Member States apart from Denmark. 55
3.5.1.1. Article 25
In respect of territorial application, a brief note should to be made of Article 25. The Article states:
“1. Where a state comprises several territorial units, each of which has its own rules of law in respect of non- contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Regulation.
55 Denmark opted out of Rome II and so will continue to apply its own national rules of the law applicable to non-contractual
3. Rome II Background and Scope
54
2. A Member State within which different territorial units have their own rules of law in respect of non- contractual obligations shall not be required to apply this Regulation to conflicts solely between the laws of such units.”
Article 25 mirrors Article 19 of the Rome Convention. It is significant that in both the Giuliano – Lagarde report on the Rome Convention56 and the original proposal of the European
Commission for Rome II,57 special mention was made of the United Kingdom in relation to this
measure. It seems that the UK is considered to be such a state with several territorial units each having its own rules of law in respect of non-contractual obligations. Thus, under Article 25(1) should an accident occur in Scotland between a Scottish motorist and a French motorist the relevant applicable law will be Scots law rather than English law. Under Article 25(2) the UK is not required to apply Rome II to accidents involving for example a Scottish motorist and an English motorist, although the wording ‘shall not be required to apply’ suggests that the Regulation
may be applied if that is desired.58
3.5.1.2. Article 28
Probably most importantly with regard to traffic accidents and the territorial application of Rome II, is Article 28. Article 28 (1) states:
“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 non-contractual obligations.”
56 M. Guliano and P. Lagrde ‘Report on the Convention on the law applicable to contractual obligations’ (1980) OJ C282/1, 42. 57 Commission proposal (n.14), 28.
55 Twelve EU Member States59 are signatories to the Hague Convention on the Law Applicable to
Traffic Accidents.60 Under Article 28 of Rome II these countries can continue to apply the
Hague Convention to claims arising out of cross border traffic accidents, in place of Rome II. Indeed, the signatory states notified the European Commission that they intended to continue to apply the Hague Convention in derogation from Rome II.61 This is a severe blow to the goal of
uniformity being attempted by Rome II. It means that whilst Rome II does apply to every EU Member State (apart from Denmark) in relation to traffic accidents it has no general application in almost half of those countries. The scheme of the Hague Convention and its relationship to Rome II is considered in full in Chapter 6.
3.5.1.3. Article 3
Under Article 3 Rome II enjoys universal application so that the law specified under it shall be applied whether or not it is the law of a Member State. At present it might be said that Article 3 would be unable to accommodate a choice-of-law rule which only applied to intra-community situations. Such a rule might cut across Article 3 because it would only concern those situations where all of the relevant parties, events and factors where situated within one or more EU Member State. Peter Stone has said of Article 3 that it:
“...avoids the entirely perverse complexity which would arise from any attempt to distinguish between intra- Community and extra-Community disputes.”62
Article 3 requires complete freedom as to the choice-of-law outcome and choice-of-law rules cannot be restricted by the definition of a rule as concerning only intra-community situations.
59 Austria, Belgium, Czech Republic, France, Latvia, Lithuania, Luxembourg, The Netherlands, Poland, Slovenia, Slovakia and
Spain.
60 4 May 1971.
61 See Notifications under Article 29(1) of Regulation (EC) No 864/2007 on the law applicable to non- contractual obligations
(Rome II) (2007) OJ C 343/7.
3. Rome II Background and Scope
56 However, it is argued in Chapter 5 that the scheme of the MID can provide, through its policies and structure, justification for the proposition that in intra-community cross border traffic accidents, the law of the victim’s home state should be applied to claims brought directly against the insurer. Such a rule would amount to one dealing with intra–community situations separately from those involving factors outside of the Union. The proposition is only made possible because of the specific polices enshrined in the MID. Here Article 3, simple though its application may be, appears as a somewhat blunt instrument, unable to take account of Community schemes and policies.
Whilst many situations may give rise to ‘perverse complexity’ in trying to distinguish ‘intra’ and
‘extra’ community disputes, it is relatively straightforward to predict when the MID is operative. The rules of the MIDs require each EU Member State to ensure that every vehicle based in its territory is covered by insurance.63 From this we can determine that if a vehicle is based in an EU
Member State then the MIDs are operative. Furthermore, the victim protection measures of the MIDs cover victims who suffer loss outside their normal Member State of residence.64 Thus,
only victims of loss caused by vehicles normally based within the EU can take advantage of the more favourable provisions. This gives a firm and clear basis for limiting, territorially, a traffic specific choice-of-law rule, without causing unwarranted difficulty.
It is submitted that a restrictive view of Article 3 should not be allowed to stand in the way of the development of rules designed for specific intra community purposes, in support of community policies. It is in fact possible that the amendment suggested in Chapter 5 would not cut across Article 3 at all. Because the proposed measure is limited by reference to the applicability of the MID there is no need to define an intra–community accident as distinct from an extra-community one. Rome II would still be applicable in all cases, regardless of the details
63 The sixth MID, Article 3. 64 Ibid, Article 20.
57 of the incident, but in some cases (i.e. direct actions to which the MID is applicable) one choice- of-law rule would be applicable and in others a different rule would govern the question. This is similar to the current situation, where some of the rules of Rome II are subject specific.