Law applicable to non-contractual obligations ("ROME II") (debate) 
President
The next item is the debate on the recommendation for second reading, on behalf of the Committee on Legal Affairs, on the Council common position (9751/7/2006 - C6-0317/2006 - for adopting a regulation of the European Parliament and of the Council on the law applicable to non-contractual obligations ("ROME II") (Rapporteur: Diana Wallis).
Diana Wallis 
rapporteur. - Madam President, Commissioner, ROME II has been a long journey for us all and, whilst we might have hoped that this was the end, it seems likely that we are just at another staging post.
Let me start by saying that we appreciate that the common position took on board some of our ideas from the first reading. Commissioner, I also want to emphasise the importance that we attach to this regulation, providing, as it will, the ground plan, or roadmap, which will provide clarity and certainty for the basis of civil law claims across Europe. We need this, and we, here in Parliament, want to get it done, but it has to be done in the right way. This has to fit the aspirations and needs of those we represent. This is not just some theoretical academic exercise; we are making political choices about balancing the rights and expectations of parties before civil courts.
I am sorry that we have not reached an agreement at this stage. I still believe that it could have been possible, with more engagement and assistance. Perhaps it is because both the other institutions are not used to Parliament having codecision in this particular area - I am sorry, but you will have to get used to it!
I also want to thank all my colleagues in the political groups in the Committee on Legal Affairs, who have stuck together with me on this long journey and supported a common view, which, subject to sufficient presence in this Chamber today, will be clearly shown in our vote.
Now let me detail the points that still separate us. We have always made it clear that we prefer a general rule, with as few exceptions as possible. If we must have exceptions, they must be clearly defined. Thus, we have accepted the position on product liability. However, problems still remain in respect of unfair competition and the environment.
With unfair competition, we also face a simultaneous proposal from Commissioner Kroes. The two proposals must work together; currently they do not. We have tried to present a more acceptable formulation, which, sadly, I think is unlikely to succeed here at today's vote, and I would therefore urge colleagues to support the deletion, to allow us to return to this at conciliation and do the work properly.
It is the same with the environment. I know and deeply respect the fact that many would like a separate rule, but it should not be a rule just for the sake of a headline. It should be a rule that is clear in terms of what facts it applies to. Given that we already have several possible formulations, the safest course, again, I would urge, is the general rule. This would also allow us to delete the separate rule today and return to the definition at conciliation.
Now I come to the two big issues for this Parliament. The first is defamation. Please understand that we know only too well how difficult an issue this is. However, we managed to get a huge majority at first reading across this House, and you will likely see a similar pattern repeated here today. That the Commission decided to exclude this issue before we could consider it again was disappointing, to say the least. That it did so on the basis of a clear two-year review clause, which has now been abandoned, is unacceptable. We know the issues surrounding this area of media and communication will only increase and continue to haunt us. Maybe we cannot deal with it now, but we will soon be looking at Brussels I again, and it is imperative that jurisdiction and applicable law remain in step. So, would we deprive ourselves of the opportunity to look at this again? Exclusion may truly be the only answer, but this Parliament wants to try a little bit more to see if we cannot resolve this.
I turn to the issue that my colleagues have been most tenacious in their support for (and I am very grateful for that): damages in road-traffic accidents. Commissioner, we have the support of insurers, the support of legal practitioners, the support of victims, the support of those we represent, but somehow we cannot transmit these concerns to the Commission or to the Council.
Even last week, I was confronted by a very senior justice ministry official who thought that what we were trying to do was the equivalent of applying German law to determine liability in respect of a road-traffic accident which had happened in the UK, where, of course, we drive on the 'wrong' side of the road. Do you really think we are that stupid? I wish people would have the courtesy to read and understand what we are suggesting: merely the accepted principle of restitutio in integrum - to put victims back in the position they were in before the incident. There should be nothing so fearful in this. Indeed, the illogical approach would be for a judge in the victim's country to be able to deal with the case by virtue of the Motor Insurance Directives and Brussels I, and then have to apply a foreign, outside law in respect of damages. This, indeed, would be illogical - and that is the situation we are currently in. Please look at what we are saying and appreciate that, given the even the greater mobility of our citizens on Europe's roads, this matter needs attention, sooner rather than later, and a four-year general review clause just will not do.
My last hope is that our debates will have brought the subject of private international law out of the dusty cupboards in justice ministries and expert committees into the glare of public, political, transparent debate. Therefore, all we ask is that you bear with us a little longer so that, together, the institutions of Europe can get this right.
Franco Frattini
Mr President, I should first like to thank Mrs Wallis for her report. As you know, we have been discussing this proposal for three and a half years, and I feel that, following the improvements made by Parliament and the Council at the two reading stages, this project has now reached maturity, if I may put it that way. Firstly, it would appear that those working in the economic and legal fields are very much looking forward to this regulation that is essential for legal certainty, and secondly, it would appear that this text is of vital importance for the construction of the European area of justice and for the smooth running of the European internal market. This is why your vote, ladies and gentlemen, represents a crucial step for the future of this issue.
The best solution would, to my mind, be to proceed without the conciliation procedure, although were this procedure to prove inevitable, the Commission would deem it essential for all the conditions to be in place after your vote for it to adopt a satisfactory text. I remain confident that a favourable solution can be found with Parliament's support.
Like you, Mrs Wallis, I regret the absence of special rules on defamation in the Council common position. We reluctantly accepted the removal of that rule. Why? Because it has not been possible to reach a compromise on a text. I should like to point out that over ten different options were on Council's table in April 2006, not one of which has any chance of success, either now or, probably, in the future.
You will also know that the revision clause has no chance of success. I firmly believe that to accept a provision that cannot obtain even the slightest consensus between the institutions, as several members of the Committee on Legal Affairs have stated, would be to reopen a can of worms. Another important point is that the number of international lawsuits in this area is very limited. Perhaps you know that even associations representing the press ultimately accepted this exclusion in a message sent to me a few days ago.
You touched on other key issues, for example the removal of other special rules on competition and the environment. To be frank, I find it difficult to accept the removal of the special rules in these areas. Special rules are not always appropriate for every situation, but when it comes to competition, the special rule is, in my view, vitally important, because it clarifies the general rule for locating the market concerned. I therefore welcome the fact that the rapporteur from a major political group will now advocate retaining special rules of this kind and will support this drafting proposal. As regards the environment, the special rule is aimed at preventing environmental dumping, and, in the current political climate, the Commission is the guarantor of a very high level of environmental protection. I believe that Rome II can contribute to this.
As for the Council, you will be aware that most Member States that have codified private international law have special rules for these two issues, and the Council advocates not only retaining these two special rules but, like the Commission, its has in fact added further recitals. We are of the same opinion: special rules must reinforce legal certainty.
As regards traffic accidents, I share Parliament's concern to improve the situation of traffic accident victims. This, at least, is one of the objectives contained in its proposal. The Committee on Legal Affairs today proposed a new rule whereby the judge must ensure that compensation is provided for all prejudice sustained. This is a very interesting idea, but I believe that that comes under harmonising the Member States' material civil law and is no longer a matter of private international law. Rome II is not, in my view, the right framework for such harmonisation, but I can confirm that I want to find a solution to the problem posed by the Committee on Legal Affairs and by Parliament, albeit in a different context of substantial harmonisation. As regards the issue of whether the general rule can lead to satisfactory solutions in this area or whether a new special rule is required, I remain open to the idea of studying this problem in detail, as provided for in Amendment 26 of the Implementation Report.
This quickly leads us on to the issue of implementing foreign law. This is covered by Amendments 12 and 21, and is a vital component of the Hague Programme. Let me reiterate that Rome II is not the right framework for such rules, which should apply to the entire commercial and civil field. More generally, I am happy to commit to carrying out a detailed study of measures aimed at facilitating the implementation of foreign law. The same indeed applies to the directive on the country of origin principle. The Services Directive already preserves the application of the Rome II and Rome I instruments. Accordingly, I do not feel that the rule proposed in Amendment 24 is necessary, not because this principle does not need to be clarified, but because there is already a guarantee.
Rainer Wieland
on behalf of the PPE-DE Group. - (DE) Mr President, I, too, wish to thank Mrs Wallis for having made some important points.
We have, this past week, heard much about the 'citizens' Europe'. When one looks at the title of this document, one is inclined to assume that many members of the public would, at the sight of it, 'switch off' on the grounds that they regard the law on non-contractual obligations as difficult, but it is the European issue par excellence, something to which most European motorists have given thought at least once, and along these lines: 'I am from country A, am travelling through country B and meet with an accident involving a driver from country C, who may well have a person from country D travelling with him'. Situations such as that are a regular occurrence, and we are, by means of this dossier, doing more work on a citizens' Europe. The need to regulate such matters is made even more pressing as people become more and more mobile and borders less and less important. There are still improvements to be made on this front. It follows that the 'citizens' Europe' is at stake.
We have, today, already made reference to other aspects of the law that certainly come up less frequently than road accidents, namely liability for criminal acts, unfair competition and the complicated things to consider with reference to the environment.
My group will seek to keep this House's options as regards this third reading and conciliation procedure as open as possible. We believe that there is still a lot of scope for making the regulations more suitable to their task. I want to underline what Mrs Wallis has already said. What this House is being asked to help decide on here is a new reality, one aspect of which will be that we will, once the outcome of the third reading is known, have to pay very close attention to those things that might well not have been legally approved, but did, at second reading in this House, gain the approval of a majority, and consider whether these things - which matter to this House - might perhaps be taken on board after all. We have every right to await with tense anticipation what will emerge from the third reading. We will try to get the options for a citizens' Europe kept as open as possible.
Manuel Medina Ortega
on behalf of the PSE Group. - (ES) Mr President, we are dealing with a rather complex text that has been subject to a series of amendments in the European Parliament's Committee on Legal Affairs and with regard to which the committee is drawing up our position on the points of view expressed by the Council.
I believe that the rapporteur has done a good job, but the positions in the Committee on Legal Affairs were adopted by one group, with a majority in that committee but not in plenary, and the Socialist Group in the European Parliament is therefore expressing its disagreement with several of the amendments approved by the Committee on Legal Affairs.
I am referring in particular to the removal of the reference to 'special rules', for example those relating to television without borders, e-commerce and other things. I am also referring to the issue of environmental damage. Environmental damage is now such an important issue that we cannot possibly have legislation that does not take account of that special aspect.
There is another aspect: the issue of unfair competition. Unfair competition also warrants some kind of detailed regulation. A statement of a general nature is not sufficient, since it affects many aspects of the internal market.
In summary, we agree with the majority of the amendments presented by the rapporteur, but we disagree with several of the amendments approved within the Committee on Legal Affairs, which reflect a majority that I would describe as circumstantial, and which is probably not going to be reflected in this Chamber. In any event, I have the feeling that we are going to have to examine this issue in detail in conciliation, depending on the result of the votes held here.
Given that different political groups have presented different amendments to several of the amendments approved by the Committee on Legal Affairs, until we have the results of the vote tomorrow, it is going to be rather difficult to know what Parliament's final text will be.
Toomas Savi
on behalf of the ALDE Group. - (ET) Mr President, Mrs Wallis, Commissioner.
While the draft legislation was in progress, my supporters and I planned to submit a motion to amend the Rome II report. Unfortunately this was not successful. For that reason I would like to present the content of the motion to you now.
Pursuant to the regulation's general rule, the law of the country in which the damage arises is to be applied in the case of non-contractual obligations. Article 9, however, contains an exception, and requires the automatic application of the laws of the country in which the industrial action takes place. I would recommend that Article 9 be removed from the draft legislation.
The exception in Article 9 does not give equal consideration to all parties in employment relations, and may place small and medium-sized companies providing services abroad in a very unfavourable situation.
Due to possible industrial action, companies cannot fulfil their contractual obligations, and are forced to return their employees, compensate the damages that have arisen and pay a contractual penalty, and thus the anticipated revenue is not obtained. Thus the damages arising from the industrial action arise in the country in which the company is located, and not in the country in which the industrial action takes place.
In my opinion, an analysis of the effects of the introduction of Article 9 into Community legislation should have been performed before the article was introduced.
Eva Lichtenberger
on behalf of the Verts/ALE Group. - (DE) Mr President, Commissioner, ladies and gentlemen, 'Rome II' is an abstract title cloaking issues that have a very direct, and very considerable, impact on the public, and it was for that reason that the arguments in committee on the various issues were so hard-hitting. I propose to highlight three of them.
The first is the issue of the impact on the environment of damage from across borders. Where the protection of the environment is concerned, the fatal tendency generally manifests itself that people try to ignore the problems of their neighbours, even when they themselves, by means of irresponsible action, are the cause of them. We cannot but note with regret that it is turning out over and over again that people do not care and that installations emitting pollutants are being built very close to borders. We have tried to come up with rules enabling victims of such environmental problems to enjoy the maximum protection possible and preventing the sort of environmental dumping to which the Commissioner referred.
It is regrettable that both the Group of the European People's Party (Christian Democrats) and European Democrats and the Group of the Alliance of Liberals and Democrats for Europe have decided not to agree to this, thereby opening the way to a retrograde step that I think would be fatal. I look to the Council and the Commission to help us find a better way.
We have managed, where protection against defamation in the press is concerned, to come up with a compromise that I see as protecting and supporting press freedom, one of the European Union's fundamental values, which we must treat with respect and which must be central to what we do, and which is best protected if the legal consequences can be discussed in the country in which the newspaper or medium is based.
I regard road accidents as particularly important, in that anyone can, potentially, be affected by them; on this point we have arrived at a compromise, and I hope that it will be accepted in the course of negotiations with other bodies.
The public can expect us to take account of their day-to-day needs and to prioritise the interests of the victims; that is what the people of Europe expect of us.
Barbara Kudrycka
(PL) Mr President, I should like to begin by thanking the rapporteur. She has worked hard to ensure that this difficult and technical report reflects Parliament's amendments after first reading as accurately as possible. This is most important, especially as regards the article on defamation, which is of particular interest to the Committee on Civil Liberties, Justice and Home Affairs.
I appreciate the political difficulties that make it exceptionally difficult to reach agreement in the Council on the issue of the article concerning defamation. We would do well to remember, however, that Parliament's stance on this matter at first reading was very clear. In my view, the solution proposed at first reading really was the best attempt at a compromise reconciling the interests of injured parties and publishers. The Commission, in its amended opinion, and the Council, in its common position, rejected the idea of including in this regulation provisions concerning legislation to be applied in cases of defamation. As stated in its opinion at first reading, however, the Committee on Civil Liberties, Justice and Home Affairs believes that this issue should not be excluded. The stance adopted by Parliament at first reading is a sensible one and it is in line with the jurisprudence of the European Court of Justice.
Turning briefly to the remaining issues, it should be borne in mind that conflict-of-law rules tend to be governed by a logic of their own, and linking it with legislation concerning the common market may create problems through lack of consistency. Nonetheless, the exclusions concerning unfair competition and environmental protection which result in these areas being covered by special provisions actually introduce unnecessary complications into European private law and run counter to the general effort to deregulate and simplify our legislation.
In conclusion, I should like to state that our Community now has an opportunity to lay the foundations of a common system of civil law. Work on the Rome I and Rome III Regulations is under way. I trust we have almost completed the work on Rome II as well. Work on common reference frameworks is progressing too. I hope all these projects will make a positive contribution to the smooth running of the internal market within our great European venture.
Andrzej Jan Szejna
(PL) Mr President, I should like to begin by warmly congratulating Mrs Wallis, the rapporteur, and thanking her for her work on such a key issue for the future of European integration. This represents an important step forward towards the development of a common area of freedom, security and justice for Europe.
As we consider the draft regulation before us today, we should pay particular attention to the need for consistency between provisions in force and subsequent regulations. It is important to ensure that the latter do not impose additional burdens and do not therefore hinder the efficient operation of the internal market. On the contrary, they should stimulate its development. Mr Medina Ortega has already referred to several specific issues, including those relating to environmental protection and competition.
I should like to state the importance of ensuring that issues pertaining to applicable law are considered appropriately, both by the parties and by the court, thus guaranteeing legal certainty. Standardisation of provisions is called for in certain cases. These include issues relating to defamation, violation of the right to privacy and personal rights, and establishing the amount of damages in cases of bodily injury.
We should support Parliament's position at first reading with a view to ensuring that the regulation covers situations in which a manifestly closer connection may be considered to exist with the country which is the principal place of publication or dissemination of information, for instance information constituting defamation of character. This can be achieved by a single provision applicable to all publications including those on the Internet.
The position concerning the application of national victim law to determine damages in the case of accidents causing bodily injury should also be supported. Such an approach will make the free movement of people within the internal market more attractive. It will also avoid placing an unfair burden on the social security and assistance schemes of the country of habitual residence of an accident victim.
Piia-Noora Kauppi
Mr President, I wish to begin by thanking Mrs Wallis for her pertinent work on this dossier and for her excellent cooperation as the ALDE Group's coordinator in the Committee on Legal Affairs.
Together with the Rome II Regulation, the EU is establishing a coherent legal framework with regard to relationships between international private laws and other Community instruments. This regulation should promote rather than hamper the proper functioning of the internal market, in particular the free movement of goods and services. I was very unhappy to hear that the negotiations with the Council have been unsuccessful so far, but I am absolutely certain that Mrs Wallis will continue to raise the points of both our committee and Parliament.
I should like to raise two issues in particular. Firstly, the violation of privacy and rights related to the personality, including defamation, should be excluded completely from the scope of Rome II. In the absence of rules protecting editorial independence, exclusion would be the only viable solution that would not undermine press freedom. It is regrettable that the Council did not give its support for this amendment at first reading.
The second issue is an important question of principle - as was the previous issue - notably regarding Article 9 of the proposal regarding industrial action and applicable law that raises specific difficulties for the European maritime and shipping industry. The Swedish Government proposed this article in the spring of 2006, with reference to the European Court of Justice judgment in Case C-18/02. This case concerns questions regarding jurisdiction and choice of law when a ship flying the flag of one Member State is being boycotted in another Member State.
Ships moving around are typically serving harbours of different countries. If industrial action against ships were to be governed by the laws of the different harbours served during a voyage, the rules that would apply would vary all the time, i.e. different rules would form the basis of legality of industrial action taken against a ship. This would both be impractical and create great uncertainty. It is generally the case that all internal relations on a ship are governed by the law of the flag state. Therefore, let us not give these powers to the labour unions, which would certainly use these provisions to blackmail our shippers and hamper the competitiveness of the European seafaring industry.
Antolín Sánchez Presedo
(ES) Mr President, Commissioner, ladies and gentlemen, infringements of Community competition rules have, or may have, effects in several Member States. The possible application by legal authorities of the criterion of using as many legislations as countries affected may complicate actions for damages, hinder legal action and weaken competition.
As rapporteur for the report on private actions for damages deriving therefrom, I believe that they deserve their own treatment, and I would point out that the Commission has reserved the right to present proposals once the consultation under way has been completed.
The amendment that I presented, together with Mrs Berger, with which the rapporteur agrees - and I thank him for that - draws attention to this situation and proposes that the actor making the claim in the place of residence of the defendant should have the option of choosing the lex fori for their claim. The conciliation will enable us to go further into the issue and decide how to deal with it appropriately.
President
The debate is closed.
The vote will take place shortly at 12 noon.
Written statement (Rule 142)
John Attard-Montalto
In view of the progressive cross-border movement of people, products and information it has become essential to achieve a common identification of the law applicable in non-contractual obligations. However, there appears to be a distinction with what is being proposed by the Commission and the opinion of the Committee on Legal Affairs.
The essence of this legislation is whether it can co-exist in harmony with existing national laws or it can supplant same. The Committee believes that national laws and what is being proposed will not hinder but enhance national laws.
A clear distinction has to be made and once there is general agreement of more uniformity then this legislation should be all-encompassing and it is important that the possibility of ambiguity of the applicable law is resolved.
It is apparent that there is a lacuna in the Rome Convention of 1980 and that subsequently entered into in Brussels, and whereas the applicable law arising from non-contractual obligations has been adequately tackled, the relevant disputes still need to be addressed in full.
The second important distinction relates to the content. There seems to be a different approach as to what non-contractual obligations should be included in the current legislation. Such issues as environmental ones are to be left to national legislation, whereas the original proposal had a wider scope.
