10th, 11th, 12th & 13th
Meetings
Rome, 15-17 September 2000
Lund, 21-23 September 2001
Paris, 20-22 September 2002
Wien, 19-21 September 2003
THIRD CONSOLIDATED VERSION OF
A PROPOSAL TO AMEND ARTICLES 1, 3, 4, 5, 6 AND 7, 9, 10BIS, 12 AND
13 OF THE ROME CONVENTION OF 19 JUNE 1980 ON THE LAW APPLICABLE TO
CONTRACTUAL OBLIGATIONS, AND ARTICLE 15 OF REGULATION 44/2001/EC (BRUSSELS
I).
If the Rome Convention
on the law applicable to contractual obligations of 19 June 1980 is
re-enacted as Community legislation,
I. Paragraphs 3 and 4 of
Article 1 should be deleted.
II. A new provision should
be inserted at the end of Article 3(1), worded as follows 
:
“In
particular, the choice of a court or the courts of a given State shall
not in itself be equivalent to a choice of the law of that State.”
III. Article 3(3) of the
Convention should be supplemented by a new paragraph worded as follows
:
“The
fact that the parties have chosen the law of a non-Member State, whether
or not accompanied by the choice of a tribunal of a non-Member State,
shall not, where all the other elements relevant to the situation
at the time of the choice are connected with one or more of the Member
States, prejudice the application of the mandatory rules which are
contained in or originate in acts of the institutions of the European
Community and which are applicable in a Member State whose law would
be applicable in the absence of a choice of law by the parties.”
IV. Article 4 of the Convention
should be replaced by the following:
“1.
To the extent that the law applicable to the contract has not been
chosen in accordance with Article 3, the contract shall be governed
by the law of the country where the party who is to effect the performance
which is characteristic of the contract has, at the time of conclusion
of the contract, his habitual residence, or, in the case of a body
corporate or unincorporate, its central administration.
However,
if the contract is entered into in the course of that party’s
trade or profession, that country shall be the country in which the
principal place of business is situated or, where under the terms
of the contract the performance is to be effected through a place
of business other than the principal place of business, the country
in which that other place of business is situated.
‘Characteristic
performance’ means, in particular:
[…]
2. Notwithstanding
the provisions of paragraph 1 of this Article, to the extent that
the subject matter of the contract is a right in immovable property
or a right to use immovable property, the contract shall be governed
by the law of the country where the immovable property is situated.
Nevertheless,
a tenancy of immovable property concluded for temporary private use
for a maximum period of six consecutive months shall be governed by
the law of the country where the landlord has his habitual residence
or place of business, provided that the tenant is a natural person
and has his habitual residence in the same country.
3. If the
characteristic performance cannot be determined, the contract shall
be governed by the law of the country with which it is most closely
connected.
Nevertheless,
if part of the contract is severable from the remainder and is more
closely connected with another country, the law of that country may,
as an exception, be applied to that part of the contract.
4. The law
designated by paragraphs 1 and 2 shall, as an exception, not be applicable
if it is clear from the circumstances as a whole that the contract
does not have a significant connection with that law and is much more
closely connected with the law of another country. ”
V. Article 5 of the Convention
shall be replaced by the following text :
“1.
This Article applies to a contract the object of which is the supply
of property, whether movable or immovable, or of services to a person
(“the consumer”) for a purpose which can be regarded as
being outside his trade or profession, by a person who is acting in
the course of his trade or profession (“the supplier”).
2. The law
applicable by virtue of Articles 3, 4 and 9 cannot deprive the consumer
of the protection afforded to him by the mandatory rules of the law
of the country in which he has his habitual residence at the time
of the conclusion of the contract, unless the supplier can establish
that he was not aware of the country in which the consumer had his
habitual residence, as a result of the conduct of the consumer.
The preceding
paragraph does not apply :
(a) when
the consumer travels to the supplier’s country and there concludes
the contract, or
(b) when
property or services were or ought to have been supplied in the country
in which the place of business through which such supply was or ought
to have been effected was situated,
unless, in
either case, the consumer was induced by the supplier to travel to
the aforementioned country to conclude the contract.”
VI. Article 6 (2) (a) of
the Convention is replaced by the following text :
"2.
Notwithstanding the provisions of Article 4, a contract of employment
shall, in the absence of choice in accordance with Article 3, be governed
:
(a) by the
law of the country in which the employee habitually carries out his
work in performance of the contract. The place where the work is habitually
carried out is not to be regarded as having changed if the employee
is posted for a limited period to work in another country. The conclusion
of a contract of employment with an employer belonging to the same
group as the original employer shall not exclude a finding that such
a posting has taken place."
VII. Article 6 of the Convention
is supplemented by an additional paragraph, paragraph 3, as follows
:
"3.
The foregoing provisions are without prejudice to the application
of the mandatory rules of the law of the country to which the employee
is posted as provided for by Directive 96/71 of 16 December, 1996,
concerning the posting of workers in the framework of the provision
of services."
VIII. Article 7 of the
Convention should be supplemented by a third paragraph worded as follows
:
“3.
Effect may only be given to the mandatory rules of a Member State
to the extent that their application does not constitute an unjustified
restriction on the principles of freedom of movement provided for
in the treaty.”
IX. Article 9 of the Convention
is amended as follows :
Paragraphs
1 and 2 are replaced by the following paragraph :
"1.
A contract is formally valid if it satisfies the formal requirements
of the law which governs it under [this convention] or of the law
of the country where either of the parties is present at the time
of the conclusion of the contract or of the law of the country in
which either party is habitually resident at that time."
Paragraph
3 becomes paragraph 2 and the expression "paragraphs 1 and 2"
is replaced by the expression "paragraph 1."
Paragraph
4 becomes paragraph 3 as follows:
"3.
An act intended to have legal effect relating to an existing or contemplated
contract is formally valid if it satisfies the formal requirements
of the law which under [this Convention] governs or would govern the
contract or of the law of the country in which the act was done or
of the law of the country in which the person who effected the act
was habitually resident."
Paragraph
5 is removed.
Paragraph
6 becomes paragraph 4 and the expression "Notwithstanding paragraphs
1 to 4" is replaced by the expression "Notwithstanding paragraphs
1 to 3."
X. A new Article 10bis
should be inserted, under the title « Compensation by operation
of law ». The text should word as follows :
Art. 10bis.
— Compensation by operation of law
“The
extinction of two or more obligations, one of which is contractual,
by way of set-off, is governed, cumulatively, by the law applicable
to each of them.“
XI. Article 12 of the Convention
should be supplemented by following provisions :
Art. 12.
— Voluntary assignment and voluntary subrogation
“1.
The mutual obligations of assignor and assignee under a voluntary
assignment of a right against another person (« the debtor »),
and the mutual obligations of parties under a voluntary transfer («
subrogation ») of a right of a creditor (« the subrogating
party ») against another person (« the debtor »)
to a third person who has a duty to satisfy the creditor or has in
fact satisfied the creditor in discharge of that duty (« the
subrogated party »), shall be governed by the law which under
this Convention applies to the contract between the assignor and assignee
or between the subrogating party and the subrogated party.
2. The law
governing the right to which the assignment relates or the law governing
the right to which the subrogation relates shall determine its assignability
or whether it may be transferred, the relationship between the debtor
and the assignee or the subrogated party, the conditions under which
the assignment or the subrogation can be invoked against the debtor
and any question whether the debtor’s obligations have been
discharged.
3. The law
of the country in which the assignor or the subrogating party has
his habitual residence at the time of the assignment or of the transfer
governs the conditions under which the assignment or the subrogation
may be invoked against third parties.“
XII. The title of Article
13 should word as follows :
Art. 13. — Subrogation
by operation of law
*
Moreover, sub-paragraph 3 of the first paragraph
of Article 15 of the proposal for a Council Regulation on jurisdiction
and the enforcement of judgments in civil and commercial matters (the
regulation known as Brussels I) should be replaced by the following
text :
“(3)
in all other cases, when the contract has been concluded with a person
(“the supplier”) in the course of that person’s
trade or profession unless the supplier can establish that he was
not aware of the country in which the consumer was domiciled, as a
result of the conduct of the consumer ; this provision does not apply,
however :
a) when the
consumer travels to the supplier’s country and there concludes
the contract, or
b) when property
or services were or ought to have been supplied in the country in
which the place of business through which such supply was or ought
to have been effected was situated,
unless, in either case, the
consumer was induced by the supplier to travel to the aforementioned
country to conclude the contract.”
______________________________
In my opinion, the new provision should be inserted before
the last sentence of Art.3(1)
