COM(2002)654 - Green paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernisation

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This Green paper267 is drafted by the Directorate-General Justice and Consumers (JUST)268 of the European Commission and published on January 14, 2003.

Contents

  1. Key information
  2. Key dates
  3. Related information
  4. Full version
  5. EU Monitor

1.

Key information

official title

Green paper on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernisation
 
Legal instrument Green paper
reference by COM-number269 COM(2002)654 EN
Additional COM-numbers COM(2002)654
CELEX number272 52002DC0654

2.

Key dates

Document 14-01-2003
Online publication 14-01-2003

3.

Related information

 

4.

Full version

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5.

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  • 1. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 2. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 3. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 4. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 5. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 6. 
    The rules on jurisdiction in the 1968 Convention and the Brussels I Regulation are not basically what this Green Paper is about, but we refer to some of them when considering the various conflict rules (point 3).

     
  • 7. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 8. 
    Article 1.

     
  • 9. 
    Article 2.

     
  • 10. 
    Subject to Article 14 of the Convention.

     
  • 11. 
    Commission communication to the Council and Parliament concerning the European contract law (OJ C 255, 13.9.2001, p.1).

     
  • 12. 
    The substantive law of contracts rules questions such as the validity, the conclusion and the performance of the contract, in contrast with private international law of contracts which only deals with the question of the law applicable to a contract.

     
  • 13. 
    www.rome-convention.org.

     
  • 14. 
    The results are accessible at www.drt.ucl.ac.be/gedip.

     
  • 15. 
    Council Regulation (EC) 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility for children of both spouses, OJ L160, 30.6.2000, p. 19.

     
  • 16. 
    Council Regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings, OJ L160, 30.6.2000, p. 1.

     
  • 17. 
    Council Regulation (EC) 1348/2000 of on 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, OJ L160, 30.6.2000, p. 37.

     
  • 18. 
    Regulation (EC) No 1206/2001 of the Council of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, OJ L 174, 27.6.2001, p. 1.

     
  • 19. 
    OJ C 19, 23.1.1999, p. 1, point 51(c).

     
  • 20. 
    OJ C 12, 15.1.2001, p. 8.

     
  • 21. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 22. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 23. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 24. 
    Another source of divergent interpretations is that certain Member States have chosen to incorporate the provisions of the Convention in their national legislation by statute, sometimes amending the original text.

     
  • 25. 
    The consolidated text of the Convention as amended by the various Conventions of Accession, and the declarations and protocols annexed to it, is published in OJ C 27, 26.1.1998, p. 34.

     
  • 26. 
    Ratification of the second protocol by Belgium is still needed for the first protocol conferring jurisdiction on the Court of Justice to enter into force in all the Member States which have ratified it (i.e. all Member States except Belgium and Ireland); for progress with ratifications, see: ue.eu.int/Accords/default.asp?lang=en.

     
  • 27. 
    The concept of consumer, for example.

     
  • 28. 
    OJ L 333, 18.11.1992, p. 1.

     
  • 29. 
    OJ C 15, 15.1.1997, p. 10.

     
  • 30. 
    The amendment made by the Funchal Convention mainly concerned the deletion of Article 27 on the geographical scope of the Convention.

     
  • 31. 
    OJ C 191, 23.6.1997, p. 11, 12.

     
  • 32. 
    Namely Articles 5, 15 et 22 1.

     
  • 33. 
    Denmark, Luxembourg, Germany and Belgium.

     
  • 34. 
    In particular: Directive on the return of cultural objects unlawfully removed from the territory of a Member State (1993/7, 15.3.1993); Directive concerning the posting of workers in the framework of the provision of services (1996/71, 16.12.1996); Directive 1944/44 of 25 May 1999 on certain aspects of sale and of the guarantees of the consumer goods. There is also a coherent set of conflict rules applicable to insurance in the following Directives: second non-life insurance Directive (1988/357 of 22 June 1988), as supplemented and amended by Directives 1992/49 and 2002/13; second life assurance Directive (1990/619 of 8 November 1990), as supplemented and amended by Directives 1992/96 and 2002/12.

     
  • 35. 
    A certain number of directives contain a provision that, although not being a conflict of laws' rule, have an impact on the applicable law to a contract. If the contract has a direct link to the territory of one or more Member States, these provisions provide for the application of Community law even if the parties chose the law of a third country. The following instruments contain such a clause: Unfair terms Directive (1993/13, 5.4.1993); Timeshare Directive (1994/47, 26.10.1994); Directive 97/7 of 20 May 1997 on the protection of consumers in respect of distance contracts; Directive on the sale and guarantees of consumption goods (1999/44, 25.5.1999); Directive on distance sales of financial services (2002/65, 23.9.2002)

     
  • 36. 
    'Generalia specialibus derogant' - special laws derogate from general laws.

     
  • 37. 
    The provisions concerning the territorial scope of the consumer directives find their reason in the fact that the protection given by Article 5 of the Convention is not always considered as being sufficient; cf. pint 3.2.7, infra

     
  • 38. 
    Cf. note 34, supra.

     
  • 39. 
    Most of the rules of conflict of laws are bilateral, i.e. they can designate either a foreign law or the law of the forum. For example, there is a French rule according to which the court must determine a child's affiliation on the basis of the law of the mother's nationality. If the mother is French, the French court will apply French law; if she is Italian, it will apply Italian law. According to the unilateralist method, each state is satisfied with determining the cases where its own law is applicable in order not to give jurisdiction to the law of another State in a case where that state does not want it to be applied. Based on the idea that private international law serves to resolve conflicts of sovereignty, such rules are the exception nowadays. An example is Article 3 subparagraph 3 of the French Civil Code: 'the laws on the status and capacity of persons govern French persons, even those residing abroad'.

     
  • 40. 
    Cf. Commission communication to Parliament and the Council on Codification of the Acquis communautaire, COM (2001) 645 final, 21.11.2001.

     
  • 41. 
    There remain obviously the safety-nets in the form of public-order legislation - the rules that the court can apply whatever the law applicable to the contract (cf. point 3.2.8, infra ). This device, however, is burdensome: there are only few rules that can be clearly identified as such - the foreseeability of the judicial solution is thus far from being guaranteed.

     
  • 42. 
    Because directives do not have horizontal direct effect. Thus the German Gran Canaria jurisprudence has its origins in the non-transposition of the Directive 85/577 of 20.12.1985 by Spain (cf. note 61, infra).

     
  • 43. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 44. 
    As to the notion 'mandatory rules', cf. point 3.2.8., infra

     
  • 45. 
    Case 381/98 Ingmar GB Ltd c/ Eato Lonard Technologies Inc
     
  • 46. 
    Case 22/70 Commission v Council
     
  • 47. 
    The Directives mentioned in footnote 29 above. It should be noted that on 27 May 2002 the Council adopted a joint position for the adoption of a consolidated version of the life assurance Directives (OJ C 170 E, 16.7.2002, p. 45). Work is also in hand to consolidate the Directives on non-life insurance, to be completed in 2003.

     
  • 48. 
    Section 3 of the Brussels Convention of 1968 already contained special rules on jurisdiction.

     
  • 49. 
    Cf. P. Lagarde, Le nouveau droit international privé des contrats après l'entrée en vigueur de la Convention de Rome du 19 juin 1980, RCDIP, 1980.287.

     
  • 50. 
    Cf. K. Boele-Woelki, Principles and Private International Law - The UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law: How to Apply Them to International Contracts, Uniform Law Review, 1996.652.

     
  • 51. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 52. 
    Article 1(1) of the Convention specifies that it applies "to contracts of sale of goods between parties whose places of business are in different States: a) when the States are Contracting States; or b) when the rules of private international law lead to the application of the law of a Contracting State."

     
  • 53. 
    Hoge Raad, 26.5.1989, NJ 1992.105 and 5.1.2001, NJ 2001.391.

     
  • 54. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 55. 
    Instead of 'with reasonable certainty' and 'mit hinreichender Sicherheit' in the English and German version, the French version asks for 'de façon certaine'.

     
  • 56. 
    Cf. examples given by the explanatory report on the Convention by Mr Guiliano and Mr Lagarde, OJ C 282, 31.10.1980.

     
  • 57. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 58. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 59. 
    The Court of Justice might also, for example, hold that the mere fact of designating the courts of a country does not constitute a choice of law if this choice is not corroborated by other factors.

     
  • 60. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 61. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 62. 
    For certain types of contract (immovable property, contract for carriage of goods), the Convention establishes special presumptions (Article 4(3) and (4)).

     
  • 63. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 64. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 65. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 66. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 67. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 68. 
    Nouvelles des Papeteries de l' Aa v. BV Machinenfabriek BOA, Hoge Raad, 25 September 1992: when the characteristic performance could be ascertained, 2 contained the main rule and the exception to that rule contained in 5 should therefore be interpreted restrictively. In other words, 2 should be disapplied only if, in the light of special factors, the country of habitual residence of the party carrying out the characteristic performance had 'no real value as a connecting factor'.

     
  • 69. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 70. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 71. 
    Article 5 does not apply if the lessor himself is a private individual. If the lessor is a professional, Article 5 (4) provides that the consumer protecting rules do not apply in a contract for the supply of services 'where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence'.

     
  • 72. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 73. 
    BGH, 12 October 1998, IPRAX 1990,318: application of the German law to a contract in which a German travel agency supplied its German customers with holiday houses in France.

     
  • 74. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 75. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 76. 
    Care will have to be taken with the consistency of legal terminology in the future instrument, as Article 22 of the Brussels I Regulation introduces the concept of 'natural person', which might appear less restrictive than 'consumer'.

     
  • 77. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 78. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 79. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 80. 
    This involves in particular the right of the consumer to withdraw from the contract and to be protected against unfair terms, such as those releasing the professional from liability in the event of damage.

     
  • 81. 
    The contracts to which Article 5 applies are contracts for the supply of tangible goods or services and contracts to finance such supplies.

     
  • 82. 
    More precisely, the following three hypotheses are concerned. First, where the signing of the contract was preceded in the country of the consumer's habitual residence by a specific proposal (for example the sending of a catalogue or of an offer of contract) or advertising (via radio, television, newspaper, mail, whatever) if the consumer performed in this country the measures needed to conclude the contract. Second, where the professional received the order in the country of the consumer's habitual residence. Third, more specific, where the tradesman organised a 'cross-border excursion' with the aim of prompting the consumer to conclude sale.

     
  • 83. 
    Cf. footnote 26, supra .

     
  • 84. 
    Cf. judgment of the German BGH of 19.3.1997, quoted in footnote 61, infra. On the contrary, the French Cour de cassation recently decided that some of the rules on overindebtedness contained in the French Code de Consommation are mandatory within the meaning of Article 7 (Civ I, 10.7.2001, Bull. n° 210, N° 000-04-104).

     
  • 85. 
    Cf. point 3.1.2, supra.

     
  • 86. 
    8 Such a failure to transpose a Community Directive was at the source of two sets of cases (Gran Canaria) in the German courts, which culminated in a judgment of the Bundesgerichtshof. In the first set of cases, German tourists on holiday on the Spanish island of Gran Canaria were the victims of a German company manufacturing bed linen. It had an agreement with a local Spanish company which organised free bus excursions to a bird reserve. During the trip it advertised the products of the German company and gave the tourists a 'sales contract' form, which they signed without paying anything immediately. It was stated that on returning to Germany the customers would receive confirmation of their orders from the German company. Disputes arose when, on their return to Germany, some of these tourists refused to pay the price invoiced by the German company and claimed to exert their right of withdrawal under German law, enacted under Directive 85/577. The legal question was whether the law applicable to these disputes was the German law, favourable to the customers, or Spanish law, specified as the applicable law by the contract, which, as Spain had not transposed part of the Directive at the material time, did not acknowledge the right to withdraw. In the second set of cases, German consumers travelling in the Canary Islands were subjected to hard-sell sessions and induced to sign contracts for the purchase of a timeshare in a holiday apartment. The contracts - some subject to the law of the Isle of Man, others to Spanish law - contained a non-withdrawal clause although withdrawal was possible in German law and Community law. The question was whether the consumers could rely on German law against the law chosen in the contract. The BGH ruled out any attempt to justify the application of the protective German law, even as mandatory rule of the forum within the meaning of Article 7.

     
  • 87. 
    Cf. note 57, supra .

     
  • 88. 
    Cf. joint declaration by the Commission and the Council concerning Articles 15 and 73 of the Brussels I Regulation, accessible at europa.eu.int/comm/justice_home/unit/civil_en.

     
  • 89. 
    One of the questions raised by the dépeçage mechanism is what happens when the consumer's protective provisions are more favourable in country B than in country A. The answer to this question depends on the view taken of consumer protection: does it consist of applying a law that is known to the consumer and therefore matches his legitimate expectations or a law which is actually more favourable to him?

     
  • 90. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 91. 
    There are hypotheses in which the application of the consumer's law is not reasonably possible, for example when a Belgian tourist travelling in Portugal enters a local shop there and buys a video cassette that turns out to be defective.

     
  • 92. 
    Cf. statement by the Commission and the Council on Article 15 of the Brussels I Regulation (available at europa.eu.int/comm/justice_home/unit/civil), specifies that for the consumer protection provisions to be applicable, it is not sufficient for an undertaking to target its activities at the Member State of the consumer's residence; a contract must also be concluded within the framework of its activities. '... the mere fact that an Internet site is accessible is not sufficient for Article 15 to be applicable, although a factor will be that this Internet site solicits the conclusion of distance contracts and that a contract has actually been concluded at a distance, by whatever means. In this respect, the language or currency which a website uses does not constitute a relevant factor.' The statement does not necessarily refer only to interactive sites: the aim of a site asking the visitor to send an order by fax is to conclude a distance contract. But a site does not aim to conclude a distance contract if, while addressing the consumers of the whole world with in the intention of providing information on a product, it then refers them to a local distributor for the purpose of signing a contract.

     
  • 93. 
    For a contract concluded via the Internet, for example, it is up to the business to make sure that its standard form enables it to identify the place of the consumer's residence.

     
  • 94. 
    Cf. Green Paper on alternative dispute resolution in civil and commercial matters, COM(2002)196 (01).

     
  • 95. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 96. 
    For example, in employment law, the rules concerning safety and health at work, minimum wages, paid leave or sick leave.

     
  • 97. 
    This is the public-policy exception, provided for by Article 16 of the Convention.

     
  • 98. 
    Paris Court of Appeal, 22.3.1990, D. 1990, Somm., p. 176.

     
  • 99. 
    P. Lagarde, Cf. P. Lagarde, Le nouveau droit international privé des contrats après l'entrée en vigueur de la Convention de Rome du 19 juin 1980, RCDIP, 1991,316.

     
  • 100. 
    Bundesgerichtshof, 19 March 1997 (Case VIII ZR 316/96): German consumers travelling in the Canary Islands were induced by dubious practices to sign contracts for the purchase of a timeshare in a holiday apartment. The contracts - some subject to the law of the Isle of Man, others to Spanish law - contained a non-withdrawal clause although withdrawal was possible in German law and Community law. When they returned to Germany, certain tourists wished nevertheless to exercise the right of withdrawal provided for by German law. Being eligible as 'mobile' consumers for the consumer protection measures of Article 5, the lower courts argued that the right of withdrawal under German law was conferred by public-order legislation within the meaning of Article 7(2) of the Convention. This argument was rejected by the Supreme Court on the ground that German law could be applied under Article 7 only if the conditions as to connection with the territory provided for by Article 5(2) for contracts governed by this Article were met. Consumer protection in such a case is now given by Community sectoral Directives.

     
  • 101. 
    Cases C-369/96 and C-374/96 (judgment given on 23.11.1999).

     
  • 102. 
    Case C-381/98 (judgment given on 9.11.2000).

     
  • 103. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 104. 
    Cf. note 5, supra.

     
  • 105. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 106. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 107. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 108. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 109. 
    Examples would include a worker in a mobile construction crew and a sales agent active in several States.

     
  • 110. 
    For example, a contract concluded in France between a French employer and a French employee for a two-year work in an African country, possibly with the promise of further employment in France on the expiry of the contract, can be assumed to be governed by the law not of the African country of the place of performance but by French law, with which it is most closely connected.

     
  • 111. 
    Directive 1996/71 of 16 December 1996, OJ L 18, 21.1.1997, p. 1.

     
  • 112. 
    It must be remembered that the rules of the Directive also apply to the non-Community workers and employers, so that there is no differentiated treatment according to whether the sending company is established in a Member State or not. The text specifies that companies established in a non-member state may not be treated more favourably than companies established in a Member State. Accordingly the legislation of Member States transposing the Directive applies without discrimination to workers seconded to their territory whatever the country of origin of the worker or of the employer.

     
  • 113. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 114. 
    For instance, in case of application of the rules of the country where the business is established regarding collective dismissal, the protection of employees' rights in case of business transfer or bankruptcy of the business.

     
  • 115. 
    Regazzoni v Sethia 1958
     
  • 116. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 117. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 118. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 119. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 120. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 121. 
    Some writers argue that an assignment contract contains a tacit choice for the law of the claim assigned. This solution has the advantage of submitting the claim and the assignment to the same law. On the other hand, in the event of a multiple assignment, this solution is likely to submit the assignments between assignor and assignee to different laws even though they are a single business operation.

     
  • 122. 
    In certain complex operations, for example a large-scale credit operation, the characteristic performance could also be that of the assignee. The Convention therefore leaves certain room for manoeuvre so that the courts can take account of specific situations.

     
  • 123. 
    In more technical terms, what this question boils down to is whether the Convention covers only the contract law aspects or whether it also includes the property law aspects (what law determines the question whether the measures of information for the debtor serve only to protect him or also to make the transfer of property effective).

     
  • 124. 
    Regulation (EC) No 1346/2000 of 29 May 2000 relating to insolvency proceedings, which came into force on 31 May 2002. This Regulation does not contain conflict rules, but Article 5 establishes that a insolvency proceeding initiated in a Member State does not affect rights in rem in assets located in other Member States. These rights in rem include 'the exclusive right to have a claim met' (Article 5(2)(b)). It must be specified that according to Article 2(g) of the Regulation, a claim is located 'in the Member State within the territory of which the third party required to meet them has the centre of his main interests'.

     
  • 125. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 126. 
    Hoge Raad, 16 May 1997, Nederlands International Privatrecht 1997, No 209.

     
  • 127. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 128. 
    Bundesgerichtshof, 8 December 1998, XI ZR 302/97, IPRAX, 2000, p. 124.

     
  • 129. 
    Adopted by the General Assembly on 31 January 2002. This Convention has not yet been signed or ratified by any of the Member States. It does not provide for an 'opt-out' mechanism for Article 22 concerning the possibility of relying on the assignment against third parties, contrary to the other conflict rules.

     
  • 130. 
    A payment made by a guarantor is a typical case of subrogation and it is therefore the law of the contract of guarantee which governs subrogation.

     
  • 131. 
    For contractual offsetting, the applicable law is determined in accordance with the general rules of the Convention (Article 3 and 4).

     
  • 132. 
    Council Regulation (EC) No 1346/2000 of 29 May relating to insolvency proceedings.

     
  • 133. 
    I.e. conflict of laws' rules, on the one hand, and rules specifying the territorial scope of Community legislation on the other hand. Cf. notes 31 and 32.

     
  • 134. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 135. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 136. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 137. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 138. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 139. 
    The rules on jurisdiction in the 1968 Convention and the Brussels I Regulation are not basically what this Green Paper is about, but we refer to some of them when considering the various conflict rules (point 3).

     
  • 140. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 141. 
    Article 1.

     
  • 142. 
    Article 2.

     
  • 143. 
    Subject to Article 14 of the Convention.

     
  • 144. 
    Commission communication to the Council and Parliament concerning the European contract law (OJ C 255, 13.9.2001, p.1).

     
  • 145. 
    The substantive law of contracts rules questions such as the validity, the conclusion and the performance of the contract, in contrast with private international law of contracts which only deals with the question of the law applicable to a contract.

     
  • 146. 
    www.rome-convention.org.

     
  • 147. 
    The results are accessible at www.drt.ucl.ac.be/gedip.

     
  • 148. 
    Council Regulation (EC) 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility for children of both spouses, OJ L160, 30.6.2000, p. 19.

     
  • 149. 
    Council Regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings, OJ L160, 30.6.2000, p. 1.

     
  • 150. 
    Council Regulation (EC) 1348/2000 of on 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, OJ L160, 30.6.2000, p. 37.

     
  • 151. 
    Regulation (EC) No 1206/2001 of the Council of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, OJ L 174, 27.6.2001, p. 1.

     
  • 152. 
    OJ C 19, 23.1.1999, p. 1, point 51(c).

     
  • 153. 
    OJ C 12, 15.1.2001, p. 8.

     
  • 154. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 155. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 156. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 157. 
    Another source of divergent interpretations is that certain Member States have chosen to incorporate the provisions of the Convention in their national legislation by statute, sometimes amending the original text.

     
  • 158. 
    The consolidated text of the Convention as amended by the various Conventions of Accession, and the declarations and protocols annexed to it, is published in OJ C 27, 26.1.1998, p. 34.

     
  • 159. 
    Ratification of the second protocol by Belgium is still needed for the first protocol conferring jurisdiction on the Court of Justice to enter into force in all the Member States which have ratified it (i.e. all Member States except Belgium and Ireland); for progress with ratifications, see: ue.eu.int/Accords/default.asp?lang=en.

     
  • 160. 
    The concept of consumer, for example.

     
  • 161. 
    OJ L 333, 18.11.1992, p. 1.

     
  • 162. 
    OJ C 15, 15.1.1997, p. 10.

     
  • 163. 
    The amendment made by the Funchal Convention mainly concerned the deletion of Article 27 on the geographical scope of the Convention.

     
  • 164. 
    OJ C 191, 23.6.1997, p. 11, 12.

     
  • 165. 
    Namely Articles 5, 15 et 22 1.

     
  • 166. 
    Denmark, Luxembourg, Germany and Belgium.

     
  • 167. 
    In particular: Directive on the return of cultural objects unlawfully removed from the territory of a Member State (1993/7, 15.3.1993); Directive concerning the posting of workers in the framework of the provision of services (1996/71, 16.12.1996); Directive 1944/44 of 25 May 1999 on certain aspects of sale and of the guarantees of the consumer goods. There is also a coherent set of conflict rules applicable to insurance in the following Directives: second non-life insurance Directive (1988/357 of 22 June 1988), as supplemented and amended by Directives 1992/49 and 2002/13; second life assurance Directive (1990/619 of 8 November 1990), as supplemented and amended by Directives 1992/96 and 2002/12.

     
  • 168. 
    A certain number of directives contain a provision that, although not being a conflict of laws' rule, have an impact on the applicable law to a contract. If the contract has a direct link to the territory of one or more Member States, these provisions provide for the application of Community law even if the parties chose the law of a third country. The following instruments contain such a clause: Unfair terms Directive (1993/13, 5.4.1993); Timeshare Directive (1994/47, 26.10.1994); Directive 97/7 of 20 May 1997 on the protection of consumers in respect of distance contracts; Directive on the sale and guarantees of consumption goods (1999/44, 25.5.1999); Directive on distance sales of financial services (2002/65, 23.9.2002)

     
  • 169. 
    'Generalia specialibus derogant' - special laws derogate from general laws.

     
  • 170. 
    The provisions concerning the territorial scope of the consumer directives find their reason in the fact that the protection given by Article 5 of the Convention is not always considered as being sufficient; cf. pint 3.2.7, infra

     
  • 171. 
    Cf. note 34, supra.

     
  • 172. 
    Most of the rules of conflict of laws are bilateral, i.e. they can designate either a foreign law or the law of the forum. For example, there is a French rule according to which the court must determine a child's affiliation on the basis of the law of the mother's nationality. If the mother is French, the French court will apply French law; if she is Italian, it will apply Italian law. According to the unilateralist method, each state is satisfied with determining the cases where its own law is applicable in order not to give jurisdiction to the law of another State in a case where that state does not want it to be applied. Based on the idea that private international law serves to resolve conflicts of sovereignty, such rules are the exception nowadays. An example is Article 3 subparagraph 3 of the French Civil Code: 'the laws on the status and capacity of persons govern French persons, even those residing abroad'.

     
  • 173. 
    Cf. Commission communication to Parliament and the Council on Codification of the Acquis communautaire, COM (2001) 645 final, 21.11.2001.

     
  • 174. 
    There remain obviously the safety-nets in the form of public-order legislation - the rules that the court can apply whatever the law applicable to the contract (cf. point 3.2.8, infra ). This device, however, is burdensome: there are only few rules that can be clearly identified as such - the foreseeability of the judicial solution is thus far from being guaranteed.

     
  • 175. 
    Because directives do not have horizontal direct effect. Thus the German Gran Canaria jurisprudence has its origins in the non-transposition of the Directive 85/577 of 20.12.1985 by Spain (cf. note 61, infra).

     
  • 176. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 177. 
    As to the notion 'mandatory rules', cf. point 3.2.8., infra

     
  • 178. 
    Case 381/98 Ingmar GB Ltd c/ Eato Lonard Technologies Inc
     
  • 179. 
    Case 22/70 Commission v Council
     
  • 180. 
    The Directives mentioned in footnote 29 above. It should be noted that on 27 May 2002 the Council adopted a joint position for the adoption of a consolidated version of the life assurance Directives (OJ C 170 E, 16.7.2002, p. 45). Work is also in hand to consolidate the Directives on non-life insurance, to be completed in 2003.

     
  • 181. 
    Section 3 of the Brussels Convention of 1968 already contained special rules on jurisdiction.

     
  • 182. 
    Cf. P. Lagarde, Le nouveau droit international privé des contrats après l'entrée en vigueur de la Convention de Rome du 19 juin 1980, RCDIP, 1980.287.

     
  • 183. 
    Cf. K. Boele-Woelki, Principles and Private International Law - The UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law: How to Apply Them to International Contracts, Uniform Law Review, 1996.652.

     
  • 184. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 185. 
    Article 1(1) of the Convention specifies that it applies "to contracts of sale of goods between parties whose places of business are in different States: a) when the States are Contracting States; or b) when the rules of private international law lead to the application of the law of a Contracting State."

     
  • 186. 
    Hoge Raad, 26.5.1989, NJ 1992.105 and 5.1.2001, NJ 2001.391.

     
  • 187. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 188. 
    Instead of 'with reasonable certainty' and 'mit hinreichender Sicherheit' in the English and German version, the French version asks for 'de façon certaine'.

     
  • 189. 
    Cf. examples given by the explanatory report on the Convention by Mr Guiliano and Mr Lagarde, OJ C 282, 31.10.1980.

     
  • 190. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 191. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 192. 
    The Court of Justice might also, for example, hold that the mere fact of designating the courts of a country does not constitute a choice of law if this choice is not corroborated by other factors.

     
  • 193. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 194. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 195. 
    For certain types of contract (immovable property, contract for carriage of goods), the Convention establishes special presumptions (Article 4(3) and (4)).

     
  • 196. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 197. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 198. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 199. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 200. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 201. 
    Nouvelles des Papeteries de l' Aa v. BV Machinenfabriek BOA, Hoge Raad, 25 September 1992: when the characteristic performance could be ascertained, 2 contained the main rule and the exception to that rule contained in 5 should therefore be interpreted restrictively. In other words, 2 should be disapplied only if, in the light of special factors, the country of habitual residence of the party carrying out the characteristic performance had 'no real value as a connecting factor'.

     
  • 202. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 203. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 204. 
    Article 5 does not apply if the lessor himself is a private individual. If the lessor is a professional, Article 5 (4) provides that the consumer protecting rules do not apply in a contract for the supply of services 'where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence'.

     
  • 205. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 206. 
    BGH, 12 October 1998, IPRAX 1990,318: application of the German law to a contract in which a German travel agency supplied its German customers with holiday houses in France.

     
  • 207. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 208. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 209. 
    Care will have to be taken with the consistency of legal terminology in the future instrument, as Article 22 of the Brussels I Regulation introduces the concept of 'natural person', which might appear less restrictive than 'consumer'.

     
  • 210. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 211. 
    On 3 May 2002 the Commission launched a wide-ranging consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations in order to collect the comments of the interested parties. The text is available at the following address: europa.eu.int/comm/dgs/justice_home/index_en.

     
  • 212. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 213. 
    This involves in particular the right of the consumer to withdraw from the contract and to be protected against unfair terms, such as those releasing the professional from liability in the event of damage.

     
  • 214. 
    The contracts to which Article 5 applies are contracts for the supply of tangible goods or services and contracts to finance such supplies.

     
  • 215. 
    More precisely, the following three hypotheses are concerned. First, where the signing of the contract was preceded in the country of the consumer's habitual residence by a specific proposal (for example the sending of a catalogue or of an offer of contract) or advertising (via radio, television, newspaper, mail, whatever) if the consumer performed in this country the measures needed to conclude the contract. Second, where the professional received the order in the country of the consumer's habitual residence. Third, more specific, where the tradesman organised a 'cross-border excursion' with the aim of prompting the consumer to conclude sale.

     
  • 216. 
    Cf. footnote 26, supra .

     
  • 217. 
    Cf. judgment of the German BGH of 19.3.1997, quoted in footnote 61, infra. On the contrary, the French Cour de cassation recently decided that some of the rules on overindebtedness contained in the French Code de Consommation are mandatory within the meaning of Article 7 (Civ I, 10.7.2001, Bull. n° 210, N° 000-04-104).

     
  • 218. 
    Cf. point 3.1.2, supra.

     
  • 219. 
    8 Such a failure to transpose a Community Directive was at the source of two sets of cases (Gran Canaria) in the German courts, which culminated in a judgment of the Bundesgerichtshof. In the first set of cases, German tourists on holiday on the Spanish island of Gran Canaria were the victims of a German company manufacturing bed linen. It had an agreement with a local Spanish company which organised free bus excursions to a bird reserve. During the trip it advertised the products of the German company and gave the tourists a 'sales contract' form, which they signed without paying anything immediately. It was stated that on returning to Germany the customers would receive confirmation of their orders from the German company. Disputes arose when, on their return to Germany, some of these tourists refused to pay the price invoiced by the German company and claimed to exert their right of withdrawal under German law, enacted under Directive 85/577. The legal question was whether the law applicable to these disputes was the German law, favourable to the customers, or Spanish law, specified as the applicable law by the contract, which, as Spain had not transposed part of the Directive at the material time, did not acknowledge the right to withdraw. In the second set of cases, German consumers travelling in the Canary Islands were subjected to hard-sell sessions and induced to sign contracts for the purchase of a timeshare in a holiday apartment. The contracts - some subject to the law of the Isle of Man, others to Spanish law - contained a non-withdrawal clause although withdrawal was possible in German law and Community law. The question was whether the consumers could rely on German law against the law chosen in the contract. The BGH ruled out any attempt to justify the application of the protective German law, even as mandatory rule of the forum within the meaning of Article 7.

     
  • 220. 
    Cf. note 57, supra .

     
  • 221. 
    Cf. joint declaration by the Commission and the Council concerning Articles 15 and 73 of the Brussels I Regulation, accessible at europa.eu.int/comm/justice_home/unit/civil_en.

     
  • 222. 
    One of the questions raised by the dépeçage mechanism is what happens when the consumer's protective provisions are more favourable in country B than in country A. The answer to this question depends on the view taken of consumer protection: does it consist of applying a law that is known to the consumer and therefore matches his legitimate expectations or a law which is actually more favourable to him?

     
  • 223. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 224. 
    There are hypotheses in which the application of the consumer's law is not reasonably possible, for example when a Belgian tourist travelling in Portugal enters a local shop there and buys a video cassette that turns out to be defective.

     
  • 225. 
    Cf. statement by the Commission and the Council on Article 15 of the Brussels I Regulation (available at europa.eu.int/comm/justice_home/unit/civil), specifies that for the consumer protection provisions to be applicable, it is not sufficient for an undertaking to target its activities at the Member State of the consumer's residence; a contract must also be concluded within the framework of its activities. '... the mere fact that an Internet site is accessible is not sufficient for Article 15 to be applicable, although a factor will be that this Internet site solicits the conclusion of distance contracts and that a contract has actually been concluded at a distance, by whatever means. In this respect, the language or currency which a website uses does not constitute a relevant factor.' The statement does not necessarily refer only to interactive sites: the aim of a site asking the visitor to send an order by fax is to conclude a distance contract. But a site does not aim to conclude a distance contract if, while addressing the consumers of the whole world with in the intention of providing information on a product, it then refers them to a local distributor for the purpose of signing a contract.

     
  • 226. 
    For a contract concluded via the Internet, for example, it is up to the business to make sure that its standard form enables it to identify the place of the consumer's residence.

     
  • 227. 
    Cf. Green Paper on alternative dispute resolution in civil and commercial matters, COM(2002)196 (01).

     
  • 228. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 229. 
    For example, in employment law, the rules concerning safety and health at work, minimum wages, paid leave or sick leave.

     
  • 230. 
    This is the public-policy exception, provided for by Article 16 of the Convention.

     
  • 231. 
    Paris Court of Appeal, 22.3.1990, D. 1990, Somm., p. 176.

     
  • 232. 
    P. Lagarde, Cf. P. Lagarde, Le nouveau droit international privé des contrats après l'entrée en vigueur de la Convention de Rome du 19 juin 1980, RCDIP, 1991,316.

     
  • 233. 
    Bundesgerichtshof, 19 March 1997 (Case VIII ZR 316/96): German consumers travelling in the Canary Islands were induced by dubious practices to sign contracts for the purchase of a timeshare in a holiday apartment. The contracts - some subject to the law of the Isle of Man, others to Spanish law - contained a non-withdrawal clause although withdrawal was possible in German law and Community law. When they returned to Germany, certain tourists wished nevertheless to exercise the right of withdrawal provided for by German law. Being eligible as 'mobile' consumers for the consumer protection measures of Article 5, the lower courts argued that the right of withdrawal under German law was conferred by public-order legislation within the meaning of Article 7(2) of the Convention. This argument was rejected by the Supreme Court on the ground that German law could be applied under Article 7 only if the conditions as to connection with the territory provided for by Article 5(2) for contracts governed by this Article were met. Consumer protection in such a case is now given by Community sectoral Directives.

     
  • 234. 
    Cases C-369/96 and C-374/96 (judgment given on 23.11.1999).

     
  • 235. 
    Case C-381/98 (judgment given on 9.11.2000).

     
  • 236. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 237. 
    Cf. note 5, supra.

     
  • 238. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 239. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 240. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 241. 
    Private international law does not have the same meaning in all Member States. In German or Portuguese law, for example, it only designates the rules concerning conflict of laws, whereas in other systems it also includes the rules concerning the international jurisdiction of the courts and the recognition of foreign judgments. In this document, the term is used in its broad sense.

     
  • 242. 
    Examples would include a worker in a mobile construction crew and a sales agent active in several States.

     
  • 243. 
    For example, a contract concluded in France between a French employer and a French employee for a two-year work in an African country, possibly with the promise of further employment in France on the expiry of the contract, can be assumed to be governed by the law not of the African country of the place of performance but by French law, with which it is most closely connected.

     
  • 244. 
    Directive 1996/71 of 16 December 1996, OJ L 18, 21.1.1997, p. 1.

     
  • 245. 
    It must be remembered that the rules of the Directive also apply to the non-Community workers and employers, so that there is no differentiated treatment according to whether the sending company is established in a Member State or not. The text specifies that companies established in a non-member state may not be treated more favourably than companies established in a Member State. Accordingly the legislation of Member States transposing the Directive applies without discrimination to workers seconded to their territory whatever the country of origin of the worker or of the employer.

     
  • 246. 
    Council Regulation (EC) No 44/2001 of 22.12.2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, replacing the Brussels Convention of 1968, the consolidated version of which was published in the OJ C 27, 26.1.1998, p. 1. But the Brussels Convention of 1968 remains in force for relations between Denmark and the other Member States.

     
  • 247. 
    For instance, in case of application of the rules of the country where the business is established regarding collective dismissal, the protection of employees' rights in case of business transfer or bankruptcy of the business.

     
  • 248. 
    Regazzoni v Sethia 1958
     
  • 249. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 250. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 251. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 252. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 253. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 254. 
    Some writers argue that an assignment contract contains a tacit choice for the law of the claim assigned. This solution has the advantage of submitting the claim and the assignment to the same law. On the other hand, in the event of a multiple assignment, this solution is likely to submit the assignments between assignor and assignee to different laws even though they are a single business operation.

     
  • 255. 
    In certain complex operations, for example a large-scale credit operation, the characteristic performance could also be that of the assignee. The Convention therefore leaves certain room for manoeuvre so that the courts can take account of specific situations.

     
  • 256. 
    In more technical terms, what this question boils down to is whether the Convention covers only the contract law aspects or whether it also includes the property law aspects (what law determines the question whether the measures of information for the debtor serve only to protect him or also to make the transfer of property effective).

     
  • 257. 
    Regulation (EC) No 1346/2000 of 29 May 2000 relating to insolvency proceedings, which came into force on 31 May 2002. This Regulation does not contain conflict rules, but Article 5 establishes that a insolvency proceeding initiated in a Member State does not affect rights in rem in assets located in other Member States. These rights in rem include 'the exclusive right to have a claim met' (Article 5(2)(b)). It must be specified that according to Article 2(g) of the Regulation, a claim is located 'in the Member State within the territory of which the third party required to meet them has the centre of his main interests'.

     
  • 258. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 259. 
    Hoge Raad, 16 May 1997, Nederlands International Privatrecht 1997, No 209.

     
  • 260. 
    Presidency conclusions of 16.10.1999, points 28 to 39.

     
  • 261. 
    Bundesgerichtshof, 8 December 1998, XI ZR 302/97, IPRAX, 2000, p. 124.

     
  • 262. 
    Adopted by the General Assembly on 31 January 2002. This Convention has not yet been signed or ratified by any of the Member States. It does not provide for an 'opt-out' mechanism for Article 22 concerning the possibility of relying on the assignment against third parties, contrary to the other conflict rules.

     
  • 263. 
    A payment made by a guarantor is a typical case of subrogation and it is therefore the law of the contract of guarantee which governs subrogation.

     
  • 264. 
    For contractual offsetting, the applicable law is determined in accordance with the general rules of the Convention (Article 3 and 4).

     
  • 265. 
    Council Regulation (EC) No 1346/2000 of 29 May relating to insolvency proceedings.

     
  • 266. 
    I.e. conflict of laws' rules, on the one hand, and rules specifying the territorial scope of Community legislation on the other hand. Cf. notes 31 and 32.

     
  • 267. 
    By means of a green paper the European Commission attempts to initiate a debate about possible future policies in a given area. Eventually, a green paper may serve as a basis for later legislative proposals.
     
  • 268. 
    This Directorate-General develops and monitors the implementation of policies that aim to ensure that the whole of the European Union is an area of freedom and security without internal borders.
     
  • 269. 
    De Europese Commissie kent nummers toe aan officiële documenten van de Europese Unie. De Commissie maakt onderscheid in een aantal typen documenten door middel van het toekennen van verschillende nummerseries. Het onderscheid is gebaseerd op het soort document en/of de instelling van de Unie van wie het document afkomstig is.
     
  • 270. 
    De Raad van de Europese Unie kent aan wetgevingsdossiers een uniek toe. Dit nummer bestaat uit een vijfcijferig volgnummer gevolgd door een schuine streep met de laatste twee cijfers van het jaartal, bijvoorbeeld 12345/00 - een document met nummer 12345 uit het jaar 2000.
     
  • 271. 
    Het interinstitutionele nummer is een nummerreeks die binnen de Europese Unie toegekend wordt aan voorstellen voor regelgeving van de Europese Commissie.
    Binnen de Europese Unie worden nog een aantal andere nummerseries gebruikt. Iedere instelling heeft één of meerdere sets documenten met ieder een eigen nummering. Die reeksen komen niet overeen met elkaar of het interinstitutioneel nummer.
     
  • 272. 
    Deze databank van de Europese Unie biedt de mogelijkheid de actuele werkzaamheden (workflow) van de Europese instellingen (Europees Parlement, Raad, ESC, Comité van de Regio's, Europese Centrale Bank, Hof van Justitie enz.) te volgen. EURlex volgt alle voorstellen (zoals wetgevende en begrotingsdossiers) en mededelingen van de Commissie, vanaf het moment dat ze aan de Raad of het Europees Parlement worden voorgelegd.
     
  • 273. 
    Als dag van bekendmaking van een Europees besluit geldt de dag waarop het besluit in het Publicatieblad wordt bekendgemaakt, en daardoor in alle officiële talen van de Europese Unie bij het Publicatiebureau beschikbaar is.