The preamble to the Regulation states that the applicable law must be determined on the basis of where the damage occurs, irrespective of the country or countries in which indirect consequences could occur (point 15). The general rule adopted in Article 4, paragraph 1 of the Regulation is regarded as the proper rule for the contractual obligation arising from the tort law of the country where the damage occurred. Lex loci delicti commissi is the basic solution for the obligations in all Member States of the European Union. In the preamble to
Regulation No. 864/2007 (point 15) it was found that application of this principle in practice, where the elements of the case are determinanted to various countries, is different. Such a situation leads to uncertainty in the determination of the competent national system of substantive law. Therefore, point 17 of the preamble to the Regulation adopted by the applicable law should be determined on the basis of where the damage occurs, irrespective of the country or countries in which indirect consequences could occur. In the event of injury to persons or damage to property, the country in which the damage occurs should be the country where the damage was caused to person or property. Article 4, paragraph 1 of the Regulation develops these rules and provides that the law is the law of the country in which the damage occurs irrespective of the country in which the event occasioning the injury, and regardless of what country or countries there are indirect consequences of that event. This regulation does not mean, however, that a determinant of where the damage has occurred was adopted in the standards of conflict of laws concerning the law applicable to contractual obligations as exclusive. Provision of Article 4, paragraph 1 of this Regulation has been formulated conditionally. “If this
regulation provides otherwise, the law applicable to non-contractual obligation arising from a tortious act is the law of the country, in which the damage occurs (…).” So whether a critical determinant to identify the substantive law of the country in which the damage occurs is determined by the EU’s legislature, who has the power to specify another
determinant. The specificity of regulation of the conflict rules of substantive law is to permit the EU legislature to two kinds of exceptions to the general principle laid down in Article 4, paragraph 1 of the Regulation. Two of them were laid down in Article 4, paragraphs 2 and 3 of the Regulation. They apply to all non-contractual obligations, with the exception of those which are dealt with separately in Chapter 2 of “Torts/Delicts” (Article 5-Article 9) and Chapter 3, “Unjust enrichment, negotorium gestio and culpa in contrahendo” (Article 10-Article 13). In cases of individual labour law partial provisions apply of Article 6 “Unfair competition and acts restricting free competition” and Article 10 “Unjust enrichment.”
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By contrast, collective labour law issues are regulated by Article 9 “Industrial action.” The subsequent chapters of this volume deal with the differences governed by these provisions in matters relating to the identification of the relevant determinants. In the chapter devoted to the analysis of the general principles adopted in Article 4 of the Regulation, to indicate the proper national system of substantive law relating to non-contractual obligations, I present exceptions, which have a general use. The first exception to the rule lex loci
damni is formulated in Article 4, paragraph 2 of the Regulation. It applies to cases where the parties to non-contractual obligations, the person claimed to be liable for damage caused and the victim, have, at the time of injury, their place of residence in the same country. In such a situation, the determinant of the common residence on the territory of one country, completed by the temporal sub-definition (the moment of injury), referred to in Article 4, paragraph 2 of Regulation takes precedence over the determinant mentioned in Article 4, paragraph 1. The designation of the order of the use of determinants listed in the provisions of Article, 4 paragraphs 1 and 2 of the Regulation may be affected, in the event of the entities applying conflict rules of substantive law that “out of all the circumstances of the case, it is clear that the tort is manifestly more closely connected with country other than that indicated in paragraph 1 or 2 (…).” Article 4, paragraph 3 of the Regulation listed by way of example the situation in which – due to a much closer relationship of the tort with a country other than that indicated in Article 4, paragraph 1 or 2 – the determinant is applied as indicated in Article 4, paragraph 3, i.e. law of the state, which remains closely connected with the tort. The directive deciding on the exclusion of the determinant having priority is “in existence of a prior relationship between the parties, such as a contract, closely determinanted to the tort.” The basis for the exclusion of indicating the order of the use of determinants deciding on the appropriate law, is the existence prior to the tort of legal relations between the parties to non-contractual obligations. This earlier relationship can be resolved before the incident which caused injury to person or property of one party to the legal relationship. The phrase “the existence of prior relationship” as used in Article 4, paragraph 3 of the Regulation is a term which applies to existing and dissolved legal relationship between the parties to non-contractual obligations. The legal basis for the
“prior relationship” may constitute a contract. However, not only the contract may give rise to non-contractual relationship, which Article 4, paragraph 3 of the Regulation concerns.
The provision of the Regulation under consideration, does not identify the legal
relationship with the contract, although the wording “much more closely connected with another country, may include, in particular, the pre-existing relationship between the parties, such as a contract (…)” puts forth such a hypothesis. It would be not true for two reasons. First, the impossibility of putting an equal sign between the terms “legal
relationship” and “contract,” and secondly to be listed in Article 4, paragraph 3 of the Regulation listing the agreement by way of example, as one source of a legal relationship.
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The most important condition that determines how to replace one of the two determinants
mentioned in Article 4, paragraphs 1 and 2, the determinant specified in Article 4,
paragraph 3 of the Regulation, is the presence of a close relationship between the legal relationship or the contract under which the obligatory relationship was entered into and a non-contractual arising from a tort. The lack of such a determinant is opposed to replacing the national system of substantive law indicated in applying determinants specified in Article 4, paragraph 1 or 2 of the Regulation provisions of the national legal system of another country. In point 18 of the preamble to Regulation No. 864/2007, Article 4,
paragraph 3 was presented as an “escape clause” with respect to Article 4, paragraphs 1 and 2. This conflict rule is applicable in cases where all the circumstances of the case, from which it is clear that the tort is manifestly more closely connected with another
country. It does not appear that the term “escape clause” was appropriate. It is associated with defects resulting from correction of errors committed by the legislature in the process of regulating conflict of law rules in Article 4 provisions of paragraphs 1 and 2 of the Regulation. In my opinion, in Article 4 of the Regulation, the rule was established
(paragraph 1) as well as two exceptions (paragraphs 2 and 3). The EU legislator decided that the general principle of non-contractual relations involving an international element, resulting from the tort should apply to the provisions in force in the country where the damage was caused (lex loci delicti commissi). It introduced two exceptions from the above rule. It ordered to assess these legal relationships according to a common domicile of the parties (lex domicili) or to all the circumstances. Not all of the determinants listed in Article 4 of the Regulation have the same legal value and are suitable for use in individual employment relationships. In the event of an incident qualified as an occupational accident or an illness that is part of the category of occupational illnesses eventuating in the
framework of the employment relationship in which there were foreign elements, to regulate the law applicable to non-contractual obligations arising from these events is the labour law of that country in which the damage occurred. In the case of an accident at work it will usually be lex loci laboris. An accident at work is in fact defined as a sudden event, caused by external circumstances. Its effect, being the damage to health or life of the employee are disclosed immediately. In the event of an occupational illness, the appropriate law applicable is the law of the country where the said illness was discovered.
When indicating a proper national system of substantive labour law for the damage resulting from an accident at work or occupational illness, the determinant will apply that was specified in Article 4, paragraph 1 of the Regulation. It may happen that the above mentioned events will take place in the event of temporary workers staying on the territory of another State by virtue of performing work within the service order issued to the
employee by the employer that employs them (posting). The relationship between the damage and the place where it occurred, is random. For this reason, in Article 4,
paragraph 2 of Regulation another determinant was formulated, allowing the evaluation of non-contractual obligation arising from a tort according to the rules of the common
domicile of the parties, i.e., the injured employee and the employer responsible for damage suffered.
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In Article 4, paragraph 2 of Regulation no use was made of the term “common residence.”
The wording was also not used to indicate that in the case of individuals the determinant is the common residence, and in the case of relationships between individuals and other entities, it is residency and the location of the business headquarters. The neutral term that was used was “stay.” It it used to mean “located in.” Normal residence is the place where the persons or entities – subjects to legal relations are usually located. The rules of private international law applied to resolve a conflict of substantive labour law, the term “usual residence in the same country” of the parties to the relationship involving a foreign element is an indication of a determinant of labour laws of the country in which the employee and the employer resides or has the workplace in which the employee is employed. Due to the constant exercise of working abroad the parties to the employment relationship are entitled to come under the law of their choice, binding the two sides, even if their “usual residence”
is located in the same country. Between of the contract to an employment relationship entered into, in which the foreign element is the place of work, there is a correlation, which can be defined as being a closer relationship, than the other determinants established in Article 4, paragraph 1 (place of the event – injury) or paragraph 2 (place of “usual
residence” of the parties). In a hearing of a claim for benefits for an accident occurring at work, an employee accident or occupational illnesses, the court will be required to
consider all the circumstances of the case and to assess which of the national substantive labour laws will be applied to assessing the claims made by an employee injured in an accident at work within a non-contractual relationship arising from tort. If a work
relationship in which the employee resides permanently in country A, which houses the seat of the employer or the company is located, with which the worker has concluded a contract of employment with, identifying the agreement above, that the work will be performed at the workplace of country B, and the work relationship comes under the labour laws of country C (as selected by the worker), the conflict laws under Article 4 of the Regulation No. 864/2007 will be required to identify an appropriate system of substantive
labour law, regulating worker claims who has been injured at the workplace. In cases where an event considered an occupational accident will take place on the territory of another country than country A, B, C, while the worker posted to this country (country D), the conflict will remain in the systems of three countries: country D, in which the damage occurred, country A, the country where the parties have their habitual residence, and country C, whose labour laws were chosen by the parties to regulate the legal relationship based on the contract of employment with an international element, with which the non-contractual obligation arose out of tort (accident at work or employee accident) and has a close relationship. From the above description of the substantive national labour laws, which remain in conflict, because under Article 4, paragraph 1, 2 and 3 of the Regulation apply to work accidents or employee accidents, stating that the only system of substantive labour law, which cannot be taken into account by the conflict rules laid down in Article 4 of the Regulation in resolving the conflict of three national systems of substantive labour law, the national system of employment law in force in country B, legis loci laboris.
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As a result of this legal analysis, there are two observations. The first refers to the relationship between the conflict rules, formulated in two separate systems of private international law: the Rome Convention and the Regulation No. 593/2008 on the law applicable to contractual obligations (“Rome 1”) and Regulation No. 864/2007 on the law applicable to non-contractual obligations (“Rome 2”). Lex loci laboris as a standard indicated as appropriate on the basis of the conflict rules governed by an international legal instrument designated as “Rome 1” have not been included in the sister act of international law – “Rome 2.” One might think that it was not necessary, because work-related accidents or occupational accidents usually occur at work, i.e. in a place where the damage occurred. This determinant is referred to in Article 4, paragraph 1 of Regulation No. 864/2007. The above example shows that the determinants of the places of work and tort (a harmful event, qualified as an accident at work) do not overlap. Occupational accidents and occupational illnesses, which are events part of the category of
non-contractual obligations arising from a tort do not qualify as one of the specific categories of non-contractual obligations arising from torts governed by specific determinants mentioned in Article 6, or Article 10 of the Regulation No. 864/2007, which apply in individual
employment relationships. Accidents at work or occupational accidents and occupational illnesses, considered as damages regulated by the law applicable to non-contractual obligations arising from tort, only apply the general principles set out in Article 4 of
Regulation No. 864/2007.
Another observation concerns the lack of choice of law rules of the second degree, which can be used in cases of conflict resolution of the conflict rules. Article 4 of Regulation No.
864/2007 is a classic example of the above shortcomings of the EU legislature. Included in this provision the conflict rules have been established in a particular chronological order.
This order was determined by applying three distinct conflict rules to one of the three normative units of Article 4 of the Regulation. All standards covered in Article 4 have been included by the legislature of the EU as “general principles.” Only thanks to the order of determinant regulation one can attempt to express an opinion that they were arranged by the legislature in a particular hierarchical order. The grammatical interpretation of Article 4, paragraphs 1, 2 and 3 of the Regulation does not provide strong arguments supporting the above hypothesis. Each normative unit included in paragraph 1, 2 or 3 of Article 4 of the Regulation was drawn up in a similar manner. It begins with the conjunction used to determine the condition: “if” (paragraphs 1,3) or the word accompanying the sentence (or part thereof) used to differentiate the approach, “however” (paragraph 2).
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Relying solely on the grammatical rules of interpretation of this provision, it can be concluded that the principle was formulated in Article 4, paragraph 1. From the above principle an exception to Article 4, paragraph 2 has been allowed. From this and, in the situation described in Article 4, paragraph 3, a further exception was introduced, but that does not lead to a reapplication of the principle formulated in Article 4, paragraph 1, but requires the use of the determinant specified in the provision of Article 4, paragraph 3.
From the above argument it is evident that Article 4 of Regulation establishes two general principles. The first in Article 4, paragraph 1, and the second in Article 4, paragraph 3 was determined. The relationship between Article 4, paragraph 1 and Article 4, paragraph 2 and Article 4, paragraph 2 and Article 4, paragraph 3 was determined. The relationship between the provisions of Article 4, paragraph 1 and Article 4, paragraph 3 was not regulated. It seems that the EU legislator assumed that the conflicts between the
standards of the general principles of conflict of law rules will be resolved by the parties to non-contractual obligations arising from tort by choice of law.
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