Regulation No. 864/2007 on the law applicable to non-contractual obligations (“Rome 2”) allows parties, a person or entity who is liable in tort and the victim, to conclude an agreement to submit the non-contractual obligation to the chosen national system of substantive law (Article 14, paragraph 1). Because the agreement can be concluded by the parties to a non-contractual obligation arising out of tort, therefore it should be obvious that before the creation of such a relationship there is no basis to conclude an agreement on the selection of applicable law. However, in Article 14, paragraph 1, point “a” of the Regulation, the right of the parties to submit the non-contractual obligations to the law chosen by the parties after the event causing the damage has occurred, has been limited.
For the reasons given above, this claim would not be necessary if, in Article 14, paragraph 1, point “b” of the Regulation it was not decided that in the event of a non-contractual obligation between the parties engaged in economic activities it is permissible to conclude such an agreement and prior to the event causing the damage. Article 14, paragraph 1, point “b” does not apply to individual labour relations, because the employee acting as a party to a non-contractual obligation is not engaged in economic activity. Despite the inadequacy of this provision, it should undergo legal analysis, as the formulations contained within it may give rise to the claim that this provision introduces a separate mechanism for agreements for non-contractual obligations to be submitted under the law chosen by the parties. In Article 14, paragraph 1, point “a” it is decided that an “agreement”
constitutes the legal basis for choice of law for non-contractual obligations. However, in Article 14, paragraph 1, point “b,” it was found that the self-employed are entitled to make a choice of law “by an agreement freely negotiated.” Because the relations between the parties have no real equality, as the worker is always treated as a “weaker” party to the contract, the question arises whether the omission by the legislator in Article 14, paragraph 1, point “a” of defining the term “the Agreement” with complementary terms, as are applied in Article 14, paragraph 1, point “b,” indicating to the parties that in the process of
negotiation, such an agreement should be negotiated in good faith, respecting each other’s interests and should not exert pressure on each other, particularly compelling to conclude an agreement. It does not appear that the different ways to regulate the
provisions of Article 14, paragraph 1 of the Regulation of alternative methods of entering into agreements on the subject chosen by the law of contractual obligations could justify the acceptance of radically different assessments of the proceedings prior to an
agreement on the choice of applicable law.
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The interpretation a contrario wording set out in Article 14, paragraph 1, point “b” by “an agreement freely negotiated” in conjunction with Article 14, paragraph 1, point “a,” which refers only to “the agreement” would lead to conclusions inconsistent with the core values of any system of law, under which the agreement shall be deemed valid only when it is voluntarily entered into. So an alternative provision introduced to Article 14, paragraph 1 of the Regulation applies only to entities carrying out economic activities. The analysed rules grant them permission to enter into agreements subjecting contractual obligations before or after the event causing the damage. A different interpretation of those provisions, based on the technique of interpretation a contrario would lead to absurd conclusions, according to which the entities conducting economic activity could cause damage before the
occurrence of events, by entering into agreements without the basic requirements of freedom of negotiation.
A necessary condition for the validity of the agreement to submit the non-contractual obligation to the chosen law, is to make a clear act of selection of a national system of substantive law. Failure to comply with that requirement does not invalidate the carried out act, provided that the choice is made due to sufficiently reliable circumstances of the case.
’Pie last paragraph of Article 14, paragraph 1 of Regulation No. 864/2007 limits, compared with the regulation used in Article 3, paragraph 2 of Regulation No. 593/2008, the number of determinants used to one, to assess the validity of the choice of a national system of substantive law. Comparing the legal regulations of the freedom of choice in cases of conflict of substantive law applicable to contractual and non-contractual obligations involving a foreign element, it should be noted that Article 14, paragraph 1 of Regulation No. 864/2007 does not regulate the rights of the parties to “pull apart into bits” non-contractual obligations and does not grant them permission to undergo to the different national systems of substantive law. In cases relating to work accidents, occupational diseases or work-related illnesses, the conditions of work performance, processes and factors at work and the work environment, one can imagine an agreement entered into by the parties to an individual employment relationship or by the injured worker’s successors, after the injury has been caused (to health or life), to submit questions concerning the legal classification of the event by the labour law of country X, while issues related to employee benefits actually granted to the victim or his family members under the labour laws of country Y. The wording of Article 14, paragraph 1 of Regulation No. 864/2007 “Parties may agree to submit non-contractual liability law of their choice” should be construed as an authorisation to make the contractual obligation in its entirety to one, chosen by the parties to the national system of substantive law. In contrast to the rules adopted in Article 3,
paragraph 2 of Regulation No. 593/2008, which grants the parties to contractual relations based on agreements, the right to change the choice of law, Article 14, paragraph 1 of Regulation No. 864/2007 allows the parties to contractual obligations to make a single act of choice.
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In other respects, in matters concerning the application juris cogentis, which cannot be derogated from the contract, the application of EU law and to protect the rights of third parties, the provisions of Article 14, paragraphs 2 in fine, 3 and 4 of Regulation No.
864/2007 in line with the provisions of Article 3, paragraphs 2 in fine, 2 and 4 of Regulation No. 593/2008.
Regulation No. 864/2007 applies a different conception of the relationship between connections which determine the proper indication of the national system of substantive law from that adopted by Regulation No. 593/2008. In contrast to the conflict rules of substantive law governing conflicts of contractual standards based on agreements (“Rome 1”), which hold the freedom to choose a law as a basic principle conflict of law rules applied in international private law concerning non-contractual obligations arising from torts (“Rome 2”) as a general principle adopt the use of determinants specified by the legislature of the EU, while allowing the parties to non-contractual contractual relations to waive this rule and to choose the applicable law within the limits specified in Article 4 of Regulation No. 864/2007. This change of priorities has been introduced in the subsequent stages of construction of the conflict rules of law applicable to contractual obligations. The first version of the draft Regulation No. 864/2007 adopted by the order of the Rome
Convention, was later used in the Regulation No. 593/2008. [footnote 161 ] Using the data included in the preamble to Regulation No. 864/2007 one can only assume that the use of different techniques to indicate determinants used in Regulation “Rome 2” resulted from the need to ensure legal certainty and the need to ensure justice in individual cases (point 14). The cited item of Regulation No. 864/2007 states that it provides for determinants which are most suitable to achieve these objectives. Therefore, whereas this Regulation sets out the general rule lex loci damni, as well as the detailed rules and an “escape clause” allowing the parties and the courts to waive these rules in cases where all the circumstances of the case clearly show that the illicit act is manifestly more closely
connected with another country. Introduced to Regulation No. 864/2007 and a set of rules to regulate the relationship between the principle of general and specific rules creates a flexible framework of conflict rules. According to the view expressed in point 14 of the
preamble of the regulation, it “also enables the competent court to consider individual cases in an appropriate manner.”
The principle of freedom of choice of law under Article 14 of Regulation No. 864/2007 has a particular legal position. It was not included in the category as a “general rule” within the meaning of Article 4 of the Regulation. It does not belong to the category of “special rules,”
which includes some principles that apply in individual employment relationships, Article 6 (unfair competition) and 10 (unjust enrichment).
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The category of special rules also includes Article 9 (industrial disputes), which I cover in Part 4 of this volume, devoted to the analysis of the conflict rules of collective labour law.
The principle of the parties’ freedom of choice has not been recognised by the legislature as a general principle. It also cannot be qualified as part of the special rules which govern the methods of identifying determinants in the case of conflict of laws governing the
various types of contractual obligations. The principle of freedom of choice of the parties to contractual relations arising out of tort is applied generally. Using this principle, the parties may indicate a system of substantive law of any country, which will be applied to regulate contractual relations by legis loci damni, where the conflict rules contained in Regulation No. 864/2007 are treated as special, treating the principle lex loci damni as a general principle of the Regulation, “Rome 2.”
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Chapter 3.3 Conflict rules of substantive labour law relating to specific