3. Rome II: Background and Scope
3.4. Interpretation
3.4.1. The Need to develop Autonomous Meanings
Since CILFIT40 it has been clear that the court must take account of the different language
versions of a measure of Community law, which all possess parity of authenticity, and that the objectives and overall scheme of the measure must be considered.41 It is also clear that measures
of Community Law, which fall to be interpreted, will not be affected by interpretations given to national law concepts by the internal systems of Member States.42 In order to ensure uniformity
of application, provisions will be given autonomous meanings.
Moreover, it is likely that the provisions of Rome II will have to attain consistent meanings with the provisions of the Rome I, and Brussels I Regulations as well. The three instruments have been described as:
39 Such as in relation to consumer contracts concluded by distance means (Article 6 of Rome I), or consumer insurance contracts
(Article 7 of Rome I). See J. Hill Cross Border Consumer Contracts (OUP, 2008), chapter 12.
40 Case 283/81 CILFIT Srl v. Ministry of Health [1982] ECR 3415. 41 Ibid at 3430.
49
“... a ‘trilogy’ of community law .. intended to create a uniform private international law of civil and commercial obligations ... characterised by a common concern: to favour the predictability of law, judicial certainty within the European legal space and transparency.” 43
Lein considers that this gives rise to a synergy between the respective instruments, whereby they each employ freedom of choice, the principle of closest connection and the principle of protection of the weaker party, in furtherance of the fundamental objectives of uniformity of outcome, certainty and predictability.44 If the instruments are designed to act in unison, for
common primary purposes, then it is natural that the terms they employ should achieve uniformity of interpretation as well. Briggs and Rees put it another way:
“It is inherently unlikely that those who drafted these instruments intended the central definitional terms to have divergent meanings: they were all drafted in Brussels, and comprise the jigsaw parts of what will one day soon be a private international legal code for the Member States.”45
Indeed, Recital 7 of Rome II requires that its provisions and scope be consistent with that of Brussels I and Rome I, stating:
“The substantive scope and the provisions of this Regulation should be consistent with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (5) (Brussels I) and the instrument dealing with the law applicable to contractual obligations.”
Recital 7 of Rome I contains almost identical wording.46 Furthermore, since Brussels I is a
derivative of the Brussels Convention and Rome I is a derivative of the Rome Convention, and
43 E Lein ‘The New Rome I/Rome II/Brussels I Synergy’ 10 (2008) YBPIL 177, at 178. 44 Ibid, 179.
45 A. Briggs and P. Rees, Civil Jurisdiction and Judgments (London, Informa, 4th edn, 2005), 2.214.
46 Referring however to Rome II, instead of to the instruments dealing with the law applicable to contractual obligations. Also
see Rectial 17 of Rome I which requires a particular interpretation of the phrases ‘provision of services’ and ‘sale of goods’ in line with Article 5 of Brussels I. For comment on this see Z. Tang ‘The Interrelationship Of European Jurisdiction And Choice Of Law In Contract’ (2008) JPIL 35.
3. Rome II Background and Scope
50 the Regulations will often follow their predecessor Conventions on matters of interpretation, the interpretation of the Conventions may also have relevance for Rome II. Decisions of the CJEU also provide evidence of uniformity of interpretation between the Rome and Brussels Conventions, where the interpretation and meaning of the Rome Convention has been used to influence the interpretation given to Article 5 of the Brussels Convention.47
The detrimental consequences of the complexity that would be caused by attributing different ‘autonomous’ meanings to the same words or phrases, depending on which instrument they are contained in, should be obvious. However, the method of achieving the underlying goal of certainty and predictability sometimes diverges, depending on whether the question relates to jurisdiction or choice-of-law. As Lein documents, Brussels I is based on protection of the defendant from unfairly being sued in a jurisdiction he could not have anticipated, through the defendant domicile principle. Conversely, Rome I puts more emphasis on the law which is most closely connected to the circumstances.48 What is being suggested here is that, when interpreting
Rome II, the interpretation of terms which have gone before, in relation to other instruments of European private international law, cannot simply be ignored. There may be a reason why they are not to be followed, but the discussion must be had, and often the answer will come from a consideration of the instruments together, rather than one in isolation.
3.4.2. The Role of Recitals
Within Rome II itself, the Recitals will be important in the discovery of the objectives of the Regulation, but it must always be remembered that the Recitals do not bear the weight of legal rules and cannot be relied upon in this manner.49 However, in the Dumez and Marinari50 cases,
47 See for example case C9/87 Arcado v. Hailand SV [1988] ECR 1539, at 15 and Case C133/81 Ivenel v. Schwab [1982] ECR 1891,
at 13-14.
48 Lein. (n43), 196. Also on the subject of the interrelation of rules on jurisdiction and choice of law see Z. Tang (n46). 49 Case C215/88 Casa Fleischhandel v. BALM [1989] ECR 2789, [31].
51 decisions of the CJEU were founded on the objectives of Brussels I, as expressed in Recitals 11 and 15, that the allocation of jurisdiction should promote the sound operation of the internal market by providing rules which are highly predictable and minimise concurrent proceedings, which could produce irreconcilable judgments.
The objectives pursued by Rome II can be said to be both numerous and somewhat utopian.51
Set out in the Recitals to Rome II, they are in keeping with the certain and predictable outcomes necessary under the traditional approach to conflict of laws, closely followed in Europe. Recital 6, for example, calls for predictability, certainty and uniformity, for the facilitation of the internal market. These aims are repeated in Recital 16. However, other Recitals are more reminiscent of the modern approaches which have been preferred in the last 50 years in the U.S. of treating individual cases in an appropriate manner, such as Recital 14 which states that doing justice in the individual case is essential.
However, for Rome II the fundamental justification remains the sound operation of the internal market. If the objectives set out in the Recitals of Rome II, of objective certainty and predictability, are thought to support the tenuous connections that Rome II has to the proper functioning of the internal market, they will likely be the foundation on which interpretation of the Regulation will stand.52 In this way any balancing of the various and potentially competing
50 Case C-220/88 Dumez France SA v. Hessische Landesbank [1990] ECR I-49; Case C364/93 Marinari v. Lloyds Bank Plc [1995] ECR
I-2719. Discussed fully in Chapter 4 at 4.2. .
51 The objectives of Rome II are comprehensively catalogues by de Boer (n.11) where their chances of realisation are also
assessed.
52 In the opening sentence of the preamble of Rome II the basis for it is identified as being: ‘... in particular Articles 61 (c) and 67 [of
the Treaty establishing the European Community]’ Article 61 EC provides: In order to establish progressively an area of freedom, security and justice, the Council shall adopt: ... (c) measures in the field of judicial cooperation in civil matters as provided for in Art 65. Article 65 EC provides: Measures in the field of judicial cooperation in civil matters having cross border implications, to be taken in accordance with Art 67 and insofar as necessary for the proper functioning of the internal market, shall include: (b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction. What is clear from Article 65 is that to fall within its scope a measure must be necessary for the proper functioning of the internal market. During the legislative process of the Regulation the UK House of Lords was highly critical of the proposed measure stating: ‘Any measure under Articles 61 and 65 has to be justified by reference to the internal market and in particular one or more of its four freedoms. ... There is no explanation in the Commission’s text as to how the proposal would facilitate the exercise of any of the four freedoms on which the internal market is based.’ The House considered in particular two of the proposed provisions as being problematic: Article 2 on universal application (now Article 3) and Article 25, which contained a prohibition on non-compensatory damages (this no longer forms a part of the text of the Regulation). In respect of the then Article 2 the House concluded that: ‘Article 2 provides that the Regulation is to have universal application. Rome II is not restricted to cross
3. Rome II Background and Scope
52 aims and objectives of the Regulation might be tipped in favour of uniformity and certainty. To do otherwise might be to stray too far from the purported legal basis of the Regulation.
Indeed, in the recent decision of the CJEU in Homawoo53 the court’s decision on the
interpretation of Rome II was founded on the need to achieve an interpretation which ensured:
“... in accordance with Recitals 6, 13, 14 and 16 of the Regulation, the full attainment of the Regulation’s objectives, that is to say the predictability of the outcome of litigation, legal certainty as to the law applicable and the uniform application of that regulation in all the Member States.” 54
It is submitted that the objectives of certainty, predictability and uniformity of application will be the primary guiding influence on the interpretation of Rome II.