REGULATION OF JUNE 17, 2008 ON THE LAW APPLICABLE TO CONTRACTUAL OBLIGATIONS (ROME I)
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REGULATION OF JUNE 17, 2008 ON THE LAW APPLICABLE TO CONTRACTUAL OBLIGATIONS (ROME I)

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 61 (c) thereof and Article 67 (5), second indent thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee [1],

acting in accordance with the procedure referred to in Article 251 of the Treaty [2],

considering the following:

(1) The Community has set itself the objective of maintaining and developing an area of ​​freedom, security and justice. With a view to the gradual establishment of this area, the Community must adopt measures in the field of judicial cooperation in civil matters having a cross-border impact, to the extent necessary for the proper functioning of the internal market.

(2) In accordance with Article 65 (b) of the Treaty, these measures must aim, inter alia, to promote the compatibility of the rules applicable in the Member States as regards conflict of laws and of jurisdiction.

(3) The European Council, meeting in Tampere on 15 and 16 October 1999, approved the principle of mutual recognition of judgments and other decisions emanating from judicial authorities as a cornerstone of judicial cooperation in civil matters and invited the Council and the Commission to adopt a program of measures to implement this principle.

(4) On 30 November 2000, the Council adopted a joint program of Commission and Council measures intended to implement the principle of mutual recognition of decisions in civil and commercial matters [3]. The program describes measures relating to the harmonization of conflict of law rules as facilitating the mutual recognition of decisions.

(5) The Hague program [4], adopted by the European Council on November 5, 2004, recommends that work on conflict of law rules with regard to contractual obligations be pursued with determination (Rome I).

(6) The proper functioning of the internal market requires, in order to promote the predictability of the outcome of disputes, security as regards the applicable law and the free movement of judgments, which the conflict-of-law rules in force in the Member States designate the same national law regardless of the country in which the action is brought.

(7) The material scope and the provisions of this Regulation should be consistent with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in such matters civil and commercial [5] (Brussels I) and to Regulation (EC) No 864/2007 of the Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) [6].

(8) Family relations should include ties of filiation, marriage, alliance and collateral ties. The reference in Article 1 (2) to relationships which have effects comparable to marriage and other family relationships should be interpreted in accordance with the law of the Member State in which the court is seised.

(9) Obligations relating to bills of exchange, checks, promissory notes and other negotiable instruments should also include waybills, where the obligations relating to waybills derive from their negotiable character.

(10) Obligations arising from negotiations carried out before the conclusion of a contract are covered by Article 12 of Regulation (EC) No 864/2007. These obligations should therefore be excluded from the scope of this Regulation.

(11) The freedom of the parties to choose the applicable law should constitute one of the cornerstones of the system of conflict of laws rules in matters of contractual obligations.

(12) An agreement between the parties to give exclusive jurisdiction to one or more courts of a Member State to hear contract disputes should be one of the factors to be taken into account in determining whether the choice of law has been clearly spelled out.

(13) This Regulation does not prevent the parties from incorporating by reference into their contract a non-State law or an international convention.

(14) If the Community adopts substantive contract law rules, including general conditions and model clauses in a specific legal instrument, that instrument may provide that the parties may choose to apply those rules.

(15) When the law of a country is chosen and all the other elements of the situation are located in another country, the choice of the applicable law must not affect the application of the provisions to which the law of that country. country does not allow derogations by agreement. This rule should apply regardless of whether or not the choice of law goes hand in hand with the choice of jurisdiction. As this is not a substantive change from Article 3 (3) of the 1980 Convention on the Law Applicable to Contractual Obligations [7] (Rome Convention), the text of this Regulation should be aligned as far as possible with Article 14 of Regulation (EC) No 864/2007.

(16) In order to contribute to the general objective of this Regulation of legal certainty in the European area of ​​justice, conflict-of-law rules should exhibit a high degree of predictability. The judge should, however, have a margin of appreciation in order to determine the law which has the closest links to the situation.

(17) As regards the law applicable in the absence of choice, the concepts of “provision of services” and “sale of goods” should be given the same interpretation as that adopted for the application of Article 5 of the Regulation ( EC) No 44/2001, in so far as the latter covers the sale of goods and the provision of services. Franchise or distribution contracts, although they are service contracts, are subject to special rules.

(18) With regard to the law applicable in the absence of choice, multilateral systems should be those within which commercial operations are conducted such as the regulated markets and the multilateral trading facilities referred to in Article 4 of the Directive 2004/39 / EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments [8], whether or not they are based on a central counterparty.

(19) In the absence of a choice, the law applicable to the contract must be determined by following the rule laid down according to the categories of contract. When the contract cannot be classified in one of the defined categories, or its characteristics make it belong to more than one of the defined categories, the contract should be governed by the law of the country in which the party who is to provide the characteristic service of the contract has his habitual residence. In the case of a contract consisting of a bundle of rights and obligations which can be attached to several of the defined contract categories, the characteristic performance of the contract should be determined in relation to its center of gravity.

(20) Where the contract has manifestly closer links with a country other than that indicated in Article 4 (1) or (2), an exception clause should provide that it is the law of that other country which must apply. ‘apply. In order to determine this country, it is necessary to take into account, in particular, the existence of close links between the contract and one or more other contracts.

(21) In the absence of a choice, when the applicable law cannot be determined due to the impossibility of classifying the contract in one of the defined categories or of determining the habitual residence of the party who must provide the characteristic service of the contract, then the contract should be governed by the law of the country with which it has the closest connection. In order to determine this country, it is necessary to take into account, in particular, the existence of closer links with one or more other contracts.

(22) As regards the interpretation of the concept of contract for the carriage of goods, no substantive change is envisaged compared to Article 4 (4), third sentence, of the Rome Convention. Therefore, single-trip charter contracts and other contracts the main purpose of which is the carriage of goods should be regarded as contracts for the carriage of goods. For the purposes of this Regulation, the term “consignor” should mean any person who concludes a contract of carriage with the carrier and the term “carrier” should mean the party to the contract which undertakes to carry out the carriage of goods, whether he assures it himself or not.

(23) As regards contracts concluded with parties considered to be weaker, they should be protected by conflict-of-law rules more favorable to their interests than the general rules.

(24) With regard more particularly to consumer contracts, the conflict of laws rule should make it possible to reduce the costs generated by the resolution of these disputes, which are often of low value, and take into account the evolution of distance marketing. Consistency with Regulation (EC) No 44/2001 requires, on the one hand, that reference be made to the concept of “managed activity” as a condition for the application of the consumer protection rule and, of on the other hand, that this concept be the subject of a harmonious interpretation in Regulation (EC) No 44/2001 and this Regulation, it being specified that a joint declaration by the Council and the Commission on the Article 15 of Regulation (EC) No 44/2001 specifies that “for Article 15 (1) (c) to apply, it is not sufficient for an undertaking to direct its activities to the Member State of the domicile of consumer, or to several States including that Member State, a contract must also have been concluded within the framework of these activities “. The declaration also recalls that “the mere fact that a website is accessible is not sufficient to make Article 15 applicable, it is still necessary that this website invites the conclusion of distance contracts and that a contract actually has been concluded remotely, by any means. In this regard, the language or currency used by a website does not constitute a relevant element. “.

(25) Consumers should be protected by the provisions of the country of their habitual residence which cannot be derogated from by agreement, provided that the consumer contract has been concluded in the course of the commercial or professional activities carried out by the trader in the country in question. The same protection should be guaranteed in the event that the trader, while not carrying out his commercial or professional activities in the country where the consumer has his habitual residence, directs his activities by any means towards that country or towards several countries of which this country, and where the contract is entered into for these activities.

(26) For the purposes of this Regulation, financial services such as investment services and activities and related services provided by a trader to a consumer and referred to in Sections A and B of Annex I to Directive 2004/39 / EC and contracts for the sale of units in collective investment funds, whether or not they are covered by Council Directive 85/611 / EEC of 20 December 1985 on the coordination of the laws, regulations and administrative provisions relating to certain investment undertakings collective securities (UCITS) [9], should be subject to Article 6 of this Regulation. Consequently, when reference is made to the terms and conditions of the issue or offer to the public of negotiable securities,

(27) Several exceptions should be made to the general conflict of laws rule with regard to consumer contracts. Under one of these exceptions, the general rule should not apply to contracts concerning immovable property rights or real property leases unless the contract refers to the right to use the immovable property on a part-time basis at the time. meaning of Directive 94/47 / EC of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of the rights relating to the acquisition of a right of part-time use of immovable property [10] .

(28) It is important to ensure that the rights and obligations which constitute a financial instrument are not covered by the general rule applicable to contracts with consumers, as these could lead to the applicability of different laws to consumers. each of the instruments issued, thus modifying their nature and preventing their fungible marketing and offering. Likewise, when such instruments are issued or offered, the contractual relationship established between the issuer or the offeror and the consumer should not necessarily be subject to the compulsory application of the law in force in the country of residence. customary behavior of the consumer, given the need to ensure uniformity of terms and conditions of an issue or an offer. The same principle should apply with regard to multilateral systems covered by Article 4 (1) (h), for which it should be ensured that the law in force in the consumer’s country of habitual residence will not interfere with the rules applicable to contracts concluded within these systems or with the operator of such systems.

(29) For the purposes of this Regulation, references to the rights and obligations constituting the terms and conditions of the issue, public offer or public purchase offer of negotiable securities, as well as the subscription and redemption of units in mutual funds, should include the provisions governing in particular the allocation of securities or units, rights in the event of over-subscription, rights of withdrawal and similar aspects in the context of the offer as well as the aspects referred to Articles 10, 11, 12 and 13, so as to ensure that all relevant contractual aspects of an offer binding the issuer or the offeror to the consumer are governed by a single law.

(30) For the purposes of this Regulation, financial instruments and transferable securities are the instruments referred to in Article 4 of Directive 2004/39 / EC.

(31) This Regulation is without prejudice to the functioning of a formal agreement designed as a system within the meaning of Article 2 (a) of Directive 98/26 / EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems [11].

(32) Due to the special nature of transport and insurance contracts, specific provisions should ensure a sufficient level of protection for passengers and policyholders. Therefore, Article 6 should not apply in the context of these specific contracts.

(33) Where an insurance contract which does not cover a large risk covers several risks, of which at least one of those risks is located in a Member State and at least one is located in a third country, the special provisions of this Regulation relating to insurance contracts should only apply to the risk or risks located in the Member State (s) concerned.

(34) The rule relating to the individual employment contract should not affect the application of the police laws of the country of posting, provided for by Directive 96/71 / EC of the European Parliament and of the Council of 16 December 1996 on posting of workers in the framework of the provision of services [12].

(35) Employees should not be deprived of the protection of provisions which cannot be derogated from by agreement or which may only be derogated from for their benefit.

(36) With regard to individual employment contracts, the performance of work in another country should be considered temporary when the worker is expected to return to work in the country of origin after the completion of his duties at the foreign. The conclusion of a new employment contract with the original employer or with an employer belonging to the same group of companies as the original employer should not prevent the worker from being considered to be performing his work in another country of temporary way.

(37) Considerations of public interest justify, in exceptional circumstances, recourse by the courts of the Member States to the mechanisms constituted by the public policy exception and mandatory overriding laws. The notion of “mandatory rules” should be distinguished from that of “provisions which cannot be derogated from by agreement” and should be interpreted more restrictively.

(38) With regard to the assignment of a claim, the term “relationship” should make it clear that Article 14 (1) also applies to the real law aspects of an assignment of a claim between the assignor and the assignee in cases where legal orders in which such aspects are treated separately from aspects falling under the law of obligations. However, the term “relationship” should not be understood to refer to any relationship that may exist between assignor and assignee. In particular, it should not cover the preliminary questions with regard to an assignment of receivable or a contractual subrogation.

(39) Legal certainty requires that a clear definition of habitual residence be laid down, in particular for companies, associations and legal persons. Unlike Article 60 (1) of Regulation (EC) No 44/2001, which proposes three criteria, the conflict of laws rule should be limited to a single criterion; otherwise, the parties would be unable to provide for the law applicable to their situation.

(40) A situation where conflict-of-law rules are dispersed among multiple instruments and where there are inconsistencies between those rules should be avoided. However, this Regulation does not exclude the possibility of inserting conflict of law rules relating to contractual obligations in the provisions of Community law concerning specific matters.

This Regulation should not affect the application of other instruments laying down provisions intended to promote the proper functioning of the internal market, insofar as those provisions cannot be applied in conjunction with the law designated by the rules of this Regulation. The application of the provisions of the applicable law designated by the rules of this Regulation should not restrict the free movement of goods and services as regulated by Community instruments, for example Directive 2000/31 / EC of the Parliament European Union and of the Council of 8 June 2000 on certain legal aspects of information society services, and in particular electronic commerce, in the internal market (“

(41) The respect of the international commitments entered into by the Member States justifies that this Regulation does not affect the international conventions to which one or more Member States are parties at the time of adoption of this Regulation. In order to make the rules more accessible, the Commission should publish, on the basis of the information transmitted by the Member States, a list of the conventions concerned in the Official Journal of the European Union.

(42) The Commission will submit to the European Parliament and the Council a proposal concerning the procedures and conditions under which Member States would be allowed to negotiate and conclude on their own behalf with third countries, individually and in exceptional cases, agreements on sectoral issues and containing provisions relating to the law applicable to contractual obligations.

(43) Since the objective of this Regulation cannot be sufficiently achieved by the Member States and may therefore, due to the dimensions and effects of this Regulation, be better achieved at Community level, the Community may take measures, in accordance with the principle of subsidiarity enshrined in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that article, this Regulation does not go beyond what is necessary to achieve that objective.

(44) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland has notified its wish to participate in the adoption and application of this by-law.

(45) In accordance with Articles 1 and 2 of the said Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community and without prejudice to Article 4 of that Protocol, the United Kingdom is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(46) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation and is not bound by it nor subject to its application,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

SCOPE

First article

Material scope

1. This Regulation shall apply, in situations involving a conflict of laws, to contractual obligations relating to civil and commercial matters.

It does not apply, in particular, to fiscal, customs and administrative matters.

2. The following are excluded from the scope of this Regulation:

(a) the status and legal capacity of natural persons, subject to Article 13;

b) obligations arising from family relationships or relationships deemed to have, under applicable law, comparable effects, including maintenance obligations;

c) obligations arising from matrimonial property regimes and property regimes relating to relationships which, according to the law applicable to them, have effects comparable to marriage and inheritance;

d) obligations arising from bills of exchange, checks, promissory notes and other negotiable instruments, insofar as the obligations arising from these other negotiable instruments derive from their negotiable character;

e) arbitration and choice of court agreements;

f) matters relating to the law of companies, associations and legal persons, such as the constitution, by registration or otherwise, the legal capacity, the internal functioning and the dissolution of companies, associations and legal persons, as well as the legal personal liability of partners and agents for the debts of the company, association or legal person;

g) the question whether a representative can bind, towards third parties, the person on whose behalf he claims to be acting or whether an organ of a company, association or legal person can bind, towards third parties third party, this company, association or legal person;

h) the constitution of trusts and the relations they create between the settlers, the trustees and the beneficiaries;

i) obligations arising from negotiations carried out before the conclusion of a contract;

j) insurance contracts resulting from activities carried out by bodies other than the undertakings referred to in Article 2 of Directive 2002/83 / EC of the European Parliament and of the Council of 5 November 2002 on direct life insurance [14], the purpose of which is to pay benefits to employees or to self-employed persons belonging to a company or a group of companies, in the event of death, in the event of life, in the event of termination or reduction of activities, in the event of occupational disease or occupational accident.

3. This Regulation does not apply to proof and procedure, without prejudice to Article 18.

4. In this Regulation, “Member State” means all the Member States to which this Regulation applies. However, in Article 3 (4) and in Article 7, this term refers to all Member States.

Article 2

Universal character

The law designated by this Regulation applies even if this law is not that of a Member State.

CHAPTER II

UNIFORM RULES

Article 3

Freedom of choice

1. The contract is governed by the law chosen by the parties. The choice is express or results in a certain way from the provisions of the contract or the circumstances of the case. By this choice, the parties can designate the law applicable to all or only part of their contract.

2. The parties may agree, at any time, to have the contract governed by a law other than that which previously governed it, either by virtue of a previous choice under this article, or by virtue of other provisions of this regulation. Any modification regarding the determination of the applicable law, made after the conclusion of the contract, does not affect the formal validity of the contract within the meaning of Article 11 and does not affect the rights of third parties.

3. When all the other elements of the situation are located, at the time of this choice, in a country other than the one whose law is chosen, the choice of the parties does not affect the application of the provisions to which the law of this other country does not allow derogations by agreement.

4. When all the other elements of the situation are located, at the time of that choice, in one or more Member States, the choice by the parties of a law applicable other than that of a Member State does not affect the where applicable, to the application of the provisions of Community law which cannot be derogated from by agreement, and as implemented by the Member State of the forum.

5. The existence and validity of the consent of the parties as to the choice of applicable law are governed by the provisions established in Articles 10, 11 and 13.

Article 4

Applicable law in the absence of choice

1. In the absence of a choice made in accordance with Article 3 and without prejudice to Articles 5 to 8, the law applicable to the following contract shall be determined as follows:

a) the contract for the sale of goods is governed by the law of the country in which the seller has his habitual residence;

b) the contract for the provision of services is governed by the law of the country in which the service provider has his habitual residence;

c) the contract having as its object a real property right or a building lease is governed by the law of the country in which the building is located;

d) notwithstanding point c), the building lease concluded for temporary personal use for a maximum period of six consecutive months is governed by the law of the country in which the owner has his habitual residence, provided that the tenant is a natural person and has his habitual residence in the same country;

e) the franchise agreement is governed by the law of the country in which the franchisee has his habitual residence;

f) the distribution contract is governed by the law of the country in which the distributor has his habitual residence;

g) the contract for the sale of goods by auction is governed by the law of the country where the auction takes place, if that place can be determined;

h) the contract concluded within a multilateral system which ensures or facilitates the meeting of multiple buying and selling interests expressed by third parties for financial instruments, within the meaning of Article 4 (1) (17) of the Directive 2004/39 / EC, according to non-discretionary rules and which is governed by the law of a single country, is governed by that law.

2. Where the contract is not covered by paragraph 1 or the elements of the contract are covered by more than one of points a) to h) of paragraph 1, the contract shall be governed by the law of the country in which the party to provide the characteristic service at his habitual residence.

3. Where it results from all the circumstances of the case that the contract has manifestly closer links with a country other than that referred to in paragraph 1 or 2, the law of that other country shall apply.

4. Where the applicable law cannot be determined on the basis of paragraph 1 or 2, the contract shall be governed by the law of the country with which it has the closest links.

Article 5

Transport contracts

1. In the absence of a choice made in accordance with Article 3, the law applicable to the contract for the carriage of goods is the law of the country in which the carrier has his habitual residence, provided that the place of loading or the place of delivery or the sender’s habitual residence is also in this country. If these conditions are not met, the law of the country in which the place of delivery agreed by the parties is located applies.

2. In the absence of a choice made in accordance with the second subparagraph of this paragraph, the law applicable to the contract of carriage of passengers is the law of the country in which the passenger has his habitual residence, provided that the place of departure or the place of arrival is located in this country. If these conditions are not met, the law of the country in which the carrier has his habitual residence applies.

The parties may only choose as the law applicable to the contract for the carriage of passengers, in accordance with article 3, the law of the country in which:

a) the passenger has his habitual residence, or

b) the carrier has his habitual residence, or

c) the carrier has its place of central administration, or

d) the place of departure is located, or

e) the place of destination is located.

3. If it results from all the circumstances of the case that the contract has manifestly closer links with a country other than that referred to in paragraph 1 or 2, the law of that other country shall apply.

Article 6

Consumer contracts

1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person (hereinafter “the consumer”), for a use which may be considered to be foreign to his professional activity, with another person (hereinafter “the consumer”). professional “), acting in the exercise of his professional activity, is governed by the law of the country where the consumer has his habitual residence, provided that the professional:

a) carries out his professional activity in the country in which the consumer has his habitual residence, or

b) by any means, direct this activity to that country or to several countries, including this one,

and that the contract falls within the framework of this activity.

2. Notwithstanding the provisions of paragraph 1, the parties may choose the law applicable to a contract satisfying the conditions of paragraph 1, in accordance with Article 3. This choice may not, however, result in depriving the consumer of the protection he is entitled to. ensure the provisions which cannot be derogated from by agreement by virtue of the law which would have been applicable, in the absence of a choice, on the basis of paragraph 1.

3. If the conditions laid down in point (a) or (b) of paragraph 1 are not fulfilled, the law applicable to a contract between a consumer and a trader shall be determined in accordance with Articles 3 and 4.

4. Paragraphs 1 and 2 do not apply:

a) the contract for the supply of services when the services owed to the consumer must be supplied exclusively in a country other than that in which he has his habitual residence;

(b) a contract of carriage other than a package travel contract within the meaning of Council Directive 90/314 / EEC of 13 June 1990 on package travel, package holidays and package tours [15];

c) a contract having as its object a real property right or a lease of an immovable other than a contract having as its object a right of part-time use of immovable property within the meaning of Directive 94/47 / EC;

d) the rights and obligations which constitute financial instruments, and the rights and obligations which constitute the terms and conditions governing the issue or offer to the public and public offers to purchase securities, and the subscription and redemption of units in collective investment undertakings, insofar as these activities do not constitute the provision of a financial service;

(e) the contract concluded under the type of system falling within the scope of Article 4 (1) (h).

Article 7

Insurance contracts

1. This Article shall apply to the contracts referred to in paragraph 2, whether or not the risk covered is situated in a Member State, and to all other insurance contracts covering risks situated within the territory of the Member States. . It does not apply to reinsurance contracts.

2. Insurance contracts covering major risks, as defined in Article 5 (d) of the First Council Directive 73/239 / EEC of 24 July 1973, coordinating the laws, regulations and administrative provisions concerning access to the activity of direct insurance other than life insurance, and its exercise [16] are governed by the law chosen by the parties in accordance with Article 3 of this Regulation.

In the absence of a choice by the parties of the applicable law, the insurance contract is governed by the law of the country where the insurer has his habitual residence. If it results from all the circumstances that the contract has manifestly closer links with another country, the law of that other country applies.

3. In the case of an insurance contract other than a contract falling under paragraph 2, the parties may only choose as the applicable law in accordance with Article 3:

(a) the law of any Member State where the risk is situated at the time of the conclusion of the contract;

b) the law of the country in which the policyholder has his habitual residence;

c) in the case of a life insurance contract, the law of the Member State of which the policyholder is a national;

(d) in the case of an insurance contract covering risks limited to claims occurring in a Member State other than that in which the risk is situated, the law of the Member State of occurrence;

e) where the holder of an insurance contract covered by this paragraph carries out a commercial, industrial or liberal activity and the insurance contract covers two or more risks relating to these activities and located in different Member States, the law of one of the Member States concerned or the law of the country of habitual residence of the policyholder.

Where, in the cases referred to in points a), b) or e), the Member States mentioned grant a greater freedom of choice of the law applicable to the insurance contract, the parties may make use of this freedom.

In the absence of a choice by the parties of the applicable law in accordance with this paragraph, the contract shall be governed by the law of the Member State where the risk is situated at the time of the conclusion of the contract.

4. The following additional rules apply to insurance contracts covering risks for which a Member State imposes an obligation to take out insurance:

(a) the insurance contract fulfills the obligation to take out insurance only if it complies with the specific provisions relating to this insurance laid down by the Member State imposing the obligation. When there is a contradiction between the law of the Member State where the risk is situated and that of the Member State which imposes the obligation to take out insurance, the latter shall prevail;

(b) by way of derogation from paragraphs 2 and 3, a Member State may provide that the insurance contract is governed by the law of the Member State which imposes the obligation to take out insurance.

5. For the purposes of the third subparagraph of paragraph 3 and of paragraph 4, where the contract covers risks located in more than one Member State, the contract shall be considered as constituting several contracts, each of which relates to only one State. member.

6. For the purposes of this article, the country where the risk is located is determined in accordance with Article 2 (d) of the Second Council Directive 88/357 / EEC of 22 June 1988 coordinating the laws and regulations and administrative matters relating to direct insurance other than life insurance and laying down the provisions intended to facilitate the effective exercise of the freedom to provide services [17] and, in the case of life insurance, the country where the risk is located is the country of commitment within the meaning of Article 1 (1) (g) of Directive 2002/83 / EC.

Article 8

Individual employment contracts

1. The individual employment contract is governed by the law chosen by the parties in accordance with Article 3. This choice may not, however, result in depriving the worker of the protection afforded him by the provisions which cannot be derogated from by agreement by virtue of the law which, in the absence of a choice, would have been applicable according to paragraphs 2, 3 and 4 of this article.

2. In the absence of a choice exercised by the parties, the individual employment contract shall be governed by the law of the country in which or, failing that, from which the worker, in execution of the contract, habitually carries out his work. The country in which the work is usually performed is not deemed to change when the worker performs his work temporarily in another country.

3. If the applicable law cannot be determined on the basis of paragraph 2, the contract shall be governed by the law of the country in which the establishment which hired the worker is located.

4. If it results from all the circumstances that the contract has closer links with another country than that referred to in paragraph 2 or 3, the law of that other country shall apply.

Article 9

Police laws

1. A mandatory law is a mandatory provision whose respect is considered crucial by a country for the protection of its public interests, such as its political, social or economic organization, to the point of requiring its application to any situation arising within its scope, regardless of the law applicable to the contract according to these regulations.

2. The provisions of these regulations may not affect the enforcement of the mandatory laws of the court seised.

3. The police laws of the country in which the obligations arising from the contract are to be or have been carried out may also be given effect, insofar as the said police laws render the execution of the contract illegal. In deciding whether effect should be given to these mandatory statutes, account shall be taken of their nature and purpose, as well as the consequences of their application or non-application.

Article 10

Consent and substantive validity

1. The existence and validity of the contract or of a provision thereof are subject to the law which would be applicable under this Regulation if the contract or provision were valid.

2. However, in order to establish that he has not consented, a party may refer to the law of the country in which he has his habitual residence if it appears from the circumstances that it would be unreasonable to determine the effect. the behavior of this party according to the law provided for in paragraph 1.

Article 11

Formal validity

1. A contract concluded between persons or their representatives, who are in the same country at the time of its conclusion, is valid as to form if it satisfies the formal conditions of the law which governs it in substance by virtue of the this Regulation or the law of the country in which it was concluded.

2. A contract concluded between persons or their representatives, who are in different countries at the time of its conclusion, is valid as to form if it satisfies the formal conditions of the law which governs it in substance by virtue of the this Regulation or the law of one of the countries in which one or the other of the parties or its representative is located at the time of its conclusion or the law of the country in which one or the other of the parties had his habitual residence at that time.

3. A unilateral legal act relating to a contract concluded or to be concluded is valid as to form if it satisfies the formal conditions of the law which governs or would govern in substance the contract by virtue of these regulations or of the law of the country. in which this act took place or the law of the country in which the person who performed it had his habitual residence at that time.

4. The provisions of paragraphs 1, 2 and 3 of this article do not apply to contracts which fall within the scope of article 6. The form of such contracts is governed by the law of the country in which the consumer has his habitual residence.

5. Notwithstanding the provisions of paragraphs 1 to 4, any contract having as its object a real estate right or a building lease is subject to the formal rules of the law of the country where the building is located, provided that, according to this law:

a) these rules apply regardless of the place where the contract is concluded and the law governing it, and

b) cannot be deviated from these rules by agreement.

Article 12

Area of ​​contract law

1. The law applicable to the contract by virtue of these regulations governs in particular:

a) its interpretation;

b) the fulfillment of the obligations that it creates;

c) within the limits of the powers attributed to the court seised by its procedural law, the consequences of the total or partial non-fulfillment of these obligations, including the assessment of the damage to the extent that the rules of law govern it;

(d) the various modes of termination of obligations, as well as the prescriptions and forfeitures based on the expiration of a period;

e) the consequences of the nullity of the contract.

2. With regard to the modalities of execution and the measures to be taken by the obligee in the event of default in execution, consideration shall be given to the law of the country where the execution takes place.

Article 13

Inability

In a contract concluded between persons in the same country, a natural person who would be capable according to the law of that country can only invoke his incapacity resulting from the law of another country if, at the time of the conclusion of the contract, the co-contracting party was aware of this incapacity or ignored it only because of imprudence on his part.

Article 14

Assignment of receivables and contractual subrogation

1. The relations between the assignor and the assignee or between the subrogator and the subrogee relating to a claim owed to a third party (“the debtor”) are governed by the law which, by virtue of this Regulation, applies to the contract. that binds them.

2. The law governing the claim that is the subject of the assignment or subrogation determines the assignable nature of the latter, the relationship between the assignee or subrogated person and the debtor, the conditions of enforceability of the assignment or subrogation to the debtor and the discharge nature of the service provided by the debtor.

3. The notion of assignment within the meaning of this article includes transfers of claims outright or by way of guarantee, as well as pledges or other sureties on claims.

Article 15

Legal subrogation

When by virtue of a contract a person (“the obligee”) has rights with regard to another person (“the obligor”) and a third party has the obligation to pay off the obligee or that the third party has paid off the creditor in performance of this obligation, the law applicable to this obligation of the third party determines whether and to what extent the latter can exercise the rights held by the creditor against the debtor according to the law governing their relations.

Article 16

Multiple debtors

When a creditor has rights with regard to several debtors who are bound by the same obligation and one of them has already paid off it in whole or in part, the law applicable to the obligation of this debtor to creditor also governs the debtor’s right to bring recourse action against other debtors. The other debtors may assert the rights they had against the creditor to the extent provided by the law governing their obligations towards the creditor.

Article 17

Legal compensation

In the absence of agreement between the parties on the possibility of proceeding to set-off, set-off is governed by the law applicable to the obligation against which it is invoked.

Article 18

Burden of proof

1. The law governing the contractual obligation under this Regulation shall apply insofar as, in matters of contractual obligations, it establishes legal presumptions or distributes the burden of proof.

2. Legal acts may be proved by any method of proof admitted either by the law of the forum or by one of the laws referred to in Article 11, according to which the act is valid as to form, provided that the evidence can be given in this way before the court seised.

CHAPTER III

OTHER PROVISIONS

Article 19

Habitual residence

1. For the purposes of this Regulation, the habitual residence of a company, association or legal person is the place where it has established its central administration.

The habitual residence of a natural person acting in the exercise of his professional activity is the place where this person has his principal establishment.

2. When the contract is concluded within the framework of the operation of a branch, agency or any other establishment, or if, according to the contract, the service must be provided by said branch, agency or other establishment, the place where this branch, agency or other establishment is located is treated as habitual residence.

3. Habitual residence is determined at the time of conclusion of the contract.

Article 20

Exclusion of referral

When the present regulation prescribes the application of the law of a country, it means the rules of substantive law in force in this country to the exclusion of the rules of private international law, except contrary provision of the present regulation.

Article 21

Public order of the forum

The application of a provision of the law designated by these regulations can only be ruled out if this application is manifestly incompatible with the public policy of the forum.

Article 22

Non-unified systems

1. Where a State comprises several territorial units, each of which has its own rules regarding contractual obligations, each territorial unit shall be considered as a country for the purposes of determining the applicable law under this Regulation.

2. A Member State in which different territorial units have their own legal rules relating to contractual obligations shall not be bound to apply this Regulation to disputes relating only to the laws of those units.

Article 23

Relationship with other provisions of Community law

With the exception of Article 7, this Regulation does not affect the application of provisions of Community law which, in particular fields, govern conflicts of laws relating to contractual obligations.

Article 24

Relationship with the Rome Convention

1. This Regulation replaces, as between the Member States, the Rome Convention, except as regards the territories of the Member States which fall within the territorial scope of this Convention and which are excluded from this Regulation by virtue of this Regulation. Article 299 of the Treaty.

2. In so far as this Regulation replaces the provisions of the Rome Convention between the Member States, any reference made to it shall be understood as made to this Regulation.

Article 25

Relationship with existing international conventions

1. This Regulation shall not affect the application of international conventions to which one or more Member States are parties when adopting this Regulation and which govern conflicts of laws relating to contractual obligations.

2. However, this Regulation shall prevail between the Member States over agreements concluded exclusively between two or more of them in so far as they concern matters governed by this Regulation.

Article 26

List of conventions

1. By 17 June 2009 at the latest, the Member States shall notify the Commission of the conventions referred to in Article 25 (1). After this date, the Member States shall notify the Commission of any denunciation of these conventions.

2. Within six months of receipt of the communications referred to in paragraph 1, the Commission shall publish in the Official Journal of the European Union:

(a) the list of agreements referred to in paragraph 1;

b) the denunciations referred to in paragraph 1.

Article 27

Review clause

1. By 17 June 2013 at the latest, the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation. This report shall be accompanied, where appropriate, by proposals aimed at amending this Regulation. He understands:

a) a study on the law applicable to insurance contracts and an assessment of the impact of the provisions to be introduced, if applicable, and

(b) an assessment of the application of Article 6, in particular as regards the consistency of Community law in the field of consumer protection.

2. By 17 June 2010 at the latest, the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the question of the enforceability of an assignment or subrogation to third parties, as well as the rank of the claim which is the subject of the said assignment or subrogation in relation to the rights held by other persons. This report shall be accompanied, where appropriate, by a proposal for amending this Regulation and by an assessment of the impact of the provisions to be introduced.

Article 28

Application over time

This Regulation applies to contracts concluded after December 17, 2009.

CHAPTER IV

FINAL PROVISIONS

Article 29

Entry into force and application

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

It is applicable from December 17, 2009, with the exception of article 26, which applies from June 17, 2009.

This Regulation shall be binding in its entirety and directly applicable in all Member States in accordance with the Treaty establishing the European Community.

Done in Strasbourg on June 17, 2008.

For the European Parliament

President

H.-G. Pöttering

For the Council

President

J. Lenarčič

[1] OJ C 318, 23.12.2006, p. 56.

[2] Opinion of the European Parliament of 29 November 2007 (not yet published in the Official Journal) and decision of the Council of 5 June 2008.

[3] OJ C 12, 15.1.2001, p. 1.

[4] OJ C 53, 3.3.2005, p. 1.

[5] OJ L 12, 16.1.2001, p. 1. Regulation as last amended by Regulation (EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).

[6] OJ L 199, 31.7.2007, p. 40.

[7] OJ C 334, 30.12.2005, p. 1.

[8] OJ L 145, 30.4.2004, p. 1. Directive as last amended by Directive 2008/10 / EC (OJ L 76, 19.3.2008, p. 33).

[9] OJ L 375, 12.31.1985, p. 3. Directive as last amended by Directive 2008/18 / EC of the European Parliament and of the Council (OJ L 76, 19.3.2008, p. 42).

[10] OJ L 280, 29.10.1994, p. 83.

[11] OJ L 166, 11.6.1998, p. 45.

[12] OJ L 18, 21.1.1997, p. 1.

[13] OJ L 178, 17.7.2000, p. 1.

[14] OJ L 345, 19.12.2002, p. 1. Directive as last amended by Directive 2008/19 / EC (OJ L 76, 19.3.2008, p. 44).

[15] OJ L 158, 23.6.1990, p. 59.

[16] OJ L 228, 16.8.1973, p. 3. Directive as last amended by Directive 2005/68 / EC of the European Parliament and of the Council (OJ L 323, 9.12.2005, p. 1).

[17] OJ L 172, 4.7.1988, p. 1. Directive as last amended by Directive 2005/14 / EC of the European Parliament and of the Council (OJ L 149, 11.6.2005, p. 14).

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