Applicable Law Cross Border Other

The law applicable to non-contractual obligations

Regulation (EC) No 864/2007 — the law applicable to non-contractual obligations (Rome II)

—It brings greater legal certainty as to the law applicable with respect to non-contractual obligations, in particular in cases of tort (a wrong under civil law) and delict (civil liability).
—It also ensures a reasonable balance between the interests of the person claimed to be liable and those of the person who has suffered damage.
—Any law specified by the regulation is applied whether or not it is the law of an EU country.
—The regulation applies to all EU countries except Denmark.As of 11 January 2009, except for Article 29 (which applies as of 11 July 2008).

General

The regulation does not replace national substantive laws (i.e. the laws that determine rights and obligations) on non-contractual obligations; it only determines which national substantive law applies.

The law applicable to a non-contractual obligation arising out of a tort/delict is:

1.the law of the country where the damage occurs; or

2.the law of the country where both parties were primarily living or had their main place of business when the damage occurred; or

3.if the case is more closely connected with the law of another country, the law of that country.

Under certain conditions, the regulation also allows the parties to choose, by mutual agreement, which law applies to a non-contractual obligation.

Scope of the law applicable

The law applicable to non-contractual obligations governs in particular:

—the basis and extent of liability, including determining who may be held liable;
—the grounds for exemption from liability and the limitation or division of liability;
—the existence, nature and assessment of damage and the remedy claimed;
—the measures the court may take to prevent or terminate injury or damage and ensure compensation;
—the manner in which an obligation may be extinguished and the rules relating to prescription or limitation;
—the question as to whether the right to seek compensation can be transferred to someone else, including by inheritance;
—persons entitled to compensation for damage they have sustained;
—liability for the acts of another person.

There are specific rules for specific non-contractual obligations, for example product liability and intellectual property. Certain non-contractual obligations are excluded from the scope of the regulation. These include:

—revenue, customs and administrative matters;
—state liability;
—specific non-contractual obligations arising out of, for example, matrimonial property regimes and family relationships, nuclear damage or violations of privacy and rights relating to personality, including defamation.

BACKGROUND

Alongside this regulation (Rome II) please see the following.

—

The Rome I regulation (Regulation (EC) No 593/2008) sets out the rules for determining the law applicable to contractual obligations in civil and commercial matters.
—The Rome III regulation (Regulation (EU) No 1259/2010) sets out the rules for determining the law applicable to divorce and legal separation.
—Contractual and non-contractual obligations.

ACTS

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) (OJ L 199, 31.7.2007, pp. 40-49)

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, pp. 6-16). See consolidated version.

Jurisdiction and applicable law in succession matters and European Certificate of Succession

Regulation (EU) No 650/2012 on matters of succession and on the creation of a European Certificate of Succession

It provides legal certainty to beneficiaries of international successions, avoids conflicting decisions and simplifies proceedings. It thus makes it easier for beneficiaries in another EU country to enjoy the rights which have been granted or transferred to them by succession.
It establishes EU-wide rules on jurisdiction and on the applicable law governing succession matters in the EU, as well as rules on recognition and enforcement of decisions given in an EU country and the acceptance and the enforcement of formal legal documents issued in an EU country.
It also introduces a European Certificate of Succession to be used by heirs, legatees, executors of wills or administrators of the estate to demonstrate their status and/or exercise their rights or powers in another EU country.
It applies to all EU countries, except the UK (1), Ireland and Denmark which will continue to apply their national law to international successions. The other EU countries will apply their national rules on recognition and enforcement to decisions given in these 3 countries.
It applies to deaths on or after 17 August 2015.It entered into force on 5 July 2012.

Scope

The regulation applies to all civil aspects of the succession to the estates of deceased people.

It does not apply to:

revenue (for example, tax matters);
customs;
or administrative matters.
Areas of civil law other than succession, such as matrimonial property regimes, gifts and pension plans are not covered by the regulation.

Jurisdiction and applicable law

The courts of the EU country in which the deceased was usually living at the time of death will have jurisdiction to rule on the succession as a whole.
As a rule, the law applicable to the succession is the law of the country in which the deceased was usually living at their time of death. It can be the law of either an EU or non-EU country.
However, before their death, a person can instead choose that the applicable law should be the law of their country of nationality. If this person is a national of an EU country, the parties concerned by the succession may agree that the courts of that EU country should deal with the succession rather than the one in which the deceased was usually living.
The same law applies to the whole succession, irrespective of either the type of assets (moveable or immoveable) concerned or the country of their location.

The applicable law will govern, for example:

the determination of the beneficiaries and their respective shares;
the capacity to inherit;
the powers of the heirs, the executors of the wills and the administrators of the estate;
the liability for the debts under the succession;
the sharing-out of the estate.

Recognition and enforcement

The application of a single law by a single authority to an international succession avoids parallel proceedings, with possibly conflicting judicial decisions. It also ensures that decisions given in an EU country are recognised throughout the EU without need for any special procedure. Decisions enforceable in the EU country where they have been given are enforceable in another EU country when, on the application of an interested party, they have been declared enforceable there by the local court.

European Certificate of Succession

The European Certificate of Succession (ECS) is an optional document issued by the authority dealing with the succession.
It is for use by heirs, legatees, executors of wills or administrators of the estate who, in another EU country, need to demonstrate their status and/or exercise their rights as heirs or legatees or their powers as executors of wills or administrators of the estate.
Once issued, the ECS will be recognised in all EU countries without any special procedure being required.

In contrast with national certificates of succession, which have different effects depending on the EU country of issue, the ECS will have the same effects, set out in the regulation, in all EU countries.
Regulation (EU) No 1329/2014 sets out the forms to be used to accompany this Regulation, in particular the ECS.

ACTS

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ L 201, 27.7.2012, pp. 107-134)

Successive amendments to Regulation (EU) No 650/2012 have been incorporated into the original text. This consolidated version is of documentary value only.

Commission Implementing Regulation (EU) No 1329/2014 of 9 December 2014 establishing the Forms referred to in Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ L 359, 16.12.2014, pp. 30-84). See consolidated version.

More effective rules on insolvency proceedings across EU borders

Regulation (EU) 2015/848 — insolvency proceedings

It aims to ensure the efficient administration of insolvency proceedings involving an individual or business with business activities or financial interests in an European Union (EU) country other than the one in which they are usually based.
It recasts and replaces Regulation (EC) No 1346/2000.

General

The regulation sets out EU-wide rules to establish:
which court has jurisdiction to open an insolvency case;
the applicable national law;
recognition of the court’s decision when a company, a trader or an individual becomes insolvent.
It does not apply to Denmark.

Applicable situations

The regulation applies to proceedings which include all or a significant part of a debtor’s creditors, are based on insolvency laws and in which, for the purpose of rescue, adjustment of debt, reorganisation or liquidation:

1.a debtor has lost all or part of its assets and an insolvency specialist, such as a liquidator, has been appointed;

2.the assets and affairs of a debtor are under the control or supervision of a court; or

3.proceedings have been halted to allow for negotiations between the debtor and its creditors. This situation is only applicable if
it takes place in the context of proceedings which aim at protecting the general body of creditors;
the negotiations fail, in which case one of the 2 other types of proceedings listed above would follow.

The regulation covers ‘preventive’ insolvency proceedings available under national law which may be launched at an early stage in order to improve the chances of rescuing the business. These proceedings are listed in Annex A. It also covers a larger range of personal insolvency proceedings.

Jurisdiction

Proceedings take place in the courts of the EU country where the debtor’s main interests are centred. This is presumed to mean:
the location of the registered office, in the case of a company or legal person;
the principal place of business, in the case of an individual running a business or professional activity;
where they usually live, in the case of any other individual.

These presumptions do not apply if the location has changed within a certain period prior to the start of insolvency proceedings.
If the debtor has a place of operation in an EU country other than the one where the debtor’s main interests are centred, that EU country may also open insolvency proceedings against the debtor. However, these ‘secondary proceedings’ are limited to the assets held in that country.
The regulation improves the chances that companies will be rescued by avoiding the opening of parallel secondary proceedings, where interests of local creditors are otherwise guaranteed.

Applicable law

In general, the applicable law is that of the country in which the proceedings take place. That law governs the conditions for opening and closing the proceedings and their conduct. This includes determining:

the debtors against whom a case can be brought;
the assets which form part of the insolvency estate;
creditors’ rights after the case is closed;
who bears the costs and expenses of the proceedings.

Recognition and enforcement

Once a judgment opening insolvency proceedings in one EU country becomes effective, it must be recognised in all other EU countries with the same effect.

Insolvency registers

To better ensure creditors and courts receive relevant information and to prevent parallel proceedings being opened, EU countries are required to publish relevant information on cross-border insolvency cases in a publicly accessible online register. These registers will be interconnected via the European e-Justice portal, in line with EU data protection rules.

Group insolvency proceedings

The regulation creates a specific approach to deal with the insolvency of members of a group of companies. This includes:

rules requiring the various insolvency practitioners and the courts involved to cooperate and communicate with each other;
limited rights of standing for an insolvency practitioner in the proceedings concerning another member of the same group;
a specific system for the coordination of proceedings concerning the same company group (‘group coordination proceedings’).

Amendments to the Annexes

The regulation has been amended twice:

Regulation (EU) 2017/353 replaced Annex A (list of insolvency procedures) and Annex B (list of insolvency practitioners) to Regulation (EU) 2015/848 with new lists taking account of information provided by Poland.
Regulation (EU) 2018/946 replaces Annexes A and B following notifications of changes received from Belgium, Bulgaria, Croatia, Latvia and Portugal.
It has applied since 26 June 2017. Regulation (EU) 2015/848 revised and replaced Regulation (EC) No 1346/2000 (and its subsequent amendments).

DOCUMENTS

Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) (OJ L 141, 5.6.2015, pp. 19-72)

Successive amendments to Regulation (EU) 2015/848 have been incorporated into the basic text. This consolidated version is of documentary value only.