First AG Szpunar in HUK-Coburg. Accurately imo opines that the pursuit of particular person pursuits could (however not readily) qualify as overriding obligatory regulation, Rome II. – Cyber Information

First Advocate Common Szpunar Opined final week in Case C-86/23 E.N.I., Y.Ok.I. v HUK-COBURG-Allgemeine Versicherung AG – let’s name that case HUK-Coburg. The case issues the applying of Article 16 Rome II’s lois de police aka lois d’software immédiate aka overriding obligatory provisions.

A declare is issued for compensation submitted by non-public people, who’re Bulgarian nationals, in accordance with obligatory insurance coverage towards civil legal responsibility in respect of the usage of motor automobiles, towards an insurance coverage firm for non-material injury brought on by the demise of their daughter in a highway visitors accident in Germany.

The core concern to find out by the CJEU is the idea of overriding obligatory provisions in Article 16 Rome II and specifically the dedication of the standards for classifying guidelines safeguarding particular person rights and freedoms as ‘overriding obligatory provisions’. This echos the dialogue in Unamar, the place the Brussels Courtroom of Attraction finally held that the related Belgian provisions solely serve the pursuits of personal events, not of the Belgian public authorized order, therefore there might be no query of software of the lois de police exception (present Opinion suggests ‘solely’ as the important thing phrase within the Courtroom of Attraction’s evaluation). The present dialogue by the AG additionally echoes the information in Lazar.

Opposite to German regulation (28), Bulgarian regulation (lex fori) (29) offers that compensation for non-material injury is decided by the court docket giving judgment on the idea of honest standards. That court docket factors out that, beneath Bulgarian regulation, compensation is payable for all psychological ache and struggling endured by mother and father on the demise of their little one because of an unlawfully and culpably induced highway visitors accident. It’s not essential for the hurt to have resulted not directly in pathological injury to the well being of the sufferer.

(32) The mere incontrovertible fact that, by making use of the lex fori, there could be a distinct end result with regard to the quantity of compensation from that which might have been reached by making use of the lex causae just isn’t adequate to conclude that the Bulgarian provision at concern could also be categorized as an ‘overriding obligatory provision’ inside the which means of Article 16 of the Rome II Regulation, offered, the AG provides,  that the applying of the lex causae is appropriate with issues of justice.

(36) Over and above CJEU Unamar, the Courtroom additionally in Da Silva Martins explored the idea and the standards. (42) ff the AG recollects the overall ideas, and (56) he factors to recital 32 Rome II’s reference to ‘‘issues of public curiosity’. The AG is totally proper in opining that safeguarding particular person curiosity could completely contribute to the safety of public curiosity. His argument (60) is frequent sense and completely proper:

A primary argument is linked to the interaction of collective and particular person pursuits. Thus, within the discipline of tort regulation, the foundations {that a} Member State establishes with the intention to shield a class of individuals who’ve sustained injury, by modifying, specifically, the burden of proof or by establishing a minimal threshold for compensation, might have the principal goal to revive the steadiness between the competing pursuits of personal events. Not directly, they may subsequently additionally contribute to safeguarding the social and financial order of the Member State by lowering the impression of accidents on public assets.

On the idea of CJEU authority as outlined, the AG concludes that the case at concern could completely result in the court docket seised making use of Bulgarian regulation nonetheless provided that

it finds, on the idea of the existence of sufficiently shut hyperlinks with the nation of the discussion board and an in depth evaluation of the phrases, basic scheme, goal and context of the adoption of that directive, that it’s of such significance within the nationwide authorized order that it justifies a departure from the relevant regulation designated pursuant to Article 4 [Rome II].

An excellent opinion which I hope might be adopted by the Courtroom.


EU Personal Worldwide Regulation, 4th ed. 2024, 4.87 ff.

Leave a Comment