Preconditions for the adoption of the Regulation (EC) of the European Parliament and of the Council on the law applicable to non-contractual obligations (“Rome II”) and its scope

The article examines the background to the adoption of Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (“Rome II”). The paper argues for the value of this document as an important instrument in the regulation of private law relations, establishing rules that determine the law governing non-contractual obligations arising between parties in most civil and commercial legal relations and applicable to situations related to a conflict of law regarding non-contractual obligations in this area. The study provides an answer to the key question of whether this Regulation is consistent with the European tradition in terms of methodology and content, whether it goes in a new direction and whether it offers an intended, but at the same time sufficiently flexible system of conflict of laws rules. The study proves that the creation of “Rome II” should be understood in the context of the communitarization of private international law, where “communitarianization” is understood as a method of Community cooperation characterized by a clear division of roles of supranational EU institutions. The article analyzes the key provisions of the Regulation, with a special role given to special rules, as well as general and special exceptions. The work reveals the content and scope of application of the main conflict principle of the Regulation – lex loci delicti commissi (from Latin – the law of the place where the offense was committed). The paper examines the material scope of application of “Rome II” and also analyses cases where the Regulation does not apply, in particular, in revenue, customs or administrative matters, as well as in the liability of the state for actions and inactions in the exercise of state power. The article analyzes the concept of “non-contractual obligation” in accordance with the provisions of “Rome II” and reveals the elements of its content: tort/offence, unjust enrichment, conducting other people’s affairs without an assignment, pre-contractual liability. This study shows that the concept of «non-contractual obligation» is not the same in different Member States and should therefore be considered as an autonomous concept, with conflict of laws rules in any case covering non-contractual obligations arising from strict liability. The article sets out the territorial scope of application of «Rome II», which provides that any law referred to in this Regulation applies regardless of whether it is the law of a Member State or not.