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Third consolidated version
of a proposal to amend articles 1, 3, 4, 5, 6, 7, 9, 10bis, 12 and 13
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 & thirteenth meetings, Rome, 2000,
Lund, 2001, Paris, 2002, Vienna, 2003 (1)
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 (2):
“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.”
X. A new Article 10bis should
be inserted, under the title “Compensation by operation of law”.
The text should read as follows:
“Article 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:
“Article 12. — Voluntary assignment
and voluntary subrogation”
“1. The mutual obligations of assignor
and assignee under a voluntary assignment or contractual subrogation
of a right against another person (the debtor) shall be governed by
the law which under this convention applies to the contract between
the assignor and assignee.
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:
“Article 13. —
Subrogation by operation of law”
B. Moreover, sub-paragraph
3 of the first paragraph of Article 15 of 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.”
1. This modifies
the previous version by the addition of Articles 10bis, 12 and 13.
2. In the opinion
of the translator, the new provision should be inserted before the
last sentence of Art. 3 (1).
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