| |
Second consolidated version
of a proposal to amend Articles 1, 3, 4, 5, 6 and 7 and 9 of the Rome
Convention of 19 June 1980 on the law applicable to contractual obligations
(Rome I), and Article 15 of Regulation 44/2001 (Brussels I). tenth,
eleventh & twelfth meetings, Rome, 2000, Lund, 2001, Paris, 2002
A. 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 a 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”.
B. Moreover, sub-paragraph 3 of the
first paragraph of Article 15 of the Regulation 44/2001 of 22 December
2000 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”
|
|
