Applicable law under Rome II Regulation. ‘Damage’ or ‘indirect consequences’.

Article 4(1) of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) provides the law applicable to a non-contractual obligation arising out of a tort is “the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”. On 10 December 2015 in Florin Lazar, (C-350/14), the ECJ has clarified the meaning of this provision as it operated in the context of a road accident with transnational effects.

A traffic accident in Italy resulted in the death of a woman whose close relatives made claims for the loss of a loved person and the loss of a source of maintenance. The claimants were all Romanian. Some were habitually resident in Italy, others in Romania. Under Italian law, the damage resulting from the death of a family member is treated as having been suffered directly by the family member and, in particular, is deemed to amount to an infringement of his personal rights.

The ECJ ruled that their claims could not be characterised as “damage” and constituted an “indirect consequence” of the accident, and that the applicable law was that of Italy where the accident occurred. In reaching this conclusion, the ECJ referred to art. 2 which provides that ‘damage shall cover any consequence arising out of tort/delict’ and to Recital 17 which states that  “in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively”.

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