Uwagi o uregulowaniach rozporządzenia Rzym II i ich stosowaniu na tle doświadczeń polskiej judykatuty

Abstract

Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non‑contractual obligations (the Rome II Regulation) defines the conflict‑of‑law rules applicable to non‑contractual obligations in civil and commercial matters. It has been in force since 11 January 2009. Article 30 of the Regulation foresees an evaluation report on its application. The European Commission already asked the Polish Ministry of Justice for an input via a Questionnaire issued in 2012 (see M. Pazdan, M. Jagielska, W. Kurowski, M. Świerczyński, M.‑A. Zachariasiewicz, M. Zachariasiewicz, Ł. Żarnowiec: Materials: The Response to Commission’s Questionnaire to the Member States Regarding the Application of the Regulation 864/2007 on the Law. „Problemy Prawa Prywatnego Międzynarodowego” 2013, vol. 12, p. 165—197). At that stage — it was not yet possible to present a developed picture of our courts’ approach to the Regulation as no extensive case‑law was available in Poland. With the new Questionnaire dated June 2015 the Commission‑Directorate A: Civil Justice asked the Polish Ministry of Justice for new information and insights on the application of the Rome II Regulation in Poland that have been gathered in the meantime. Similarly to the original response to the Commission’s Questionnaire, this supplement was prepared jointly, by a group of authors under a lead of professor Maksymilian Pazdan. The supplement constituted the basis for the reply given to the Commission by the Polish Codification Committee on behalf of the Polish government. Since the preparation of the original response time has passed and experience has accrued. Accordingly, a number of issues concerning the application of the Regulation have surfaced. The new opinion brings additional information on Polish case law to the attention of the Commission. The authors are of the of the view that the reason why the Regulation has been finally noticed by Polish courts may be the reference to this act included in Art. 33 of Polish Private International Law. Jurisprudential analysis presented in this supplement indicates that Polish courts face many difficulties when applying the Rome II Regulation. These concern, among others, the scope of the Regulation itself, as well are of its particular provisions, the demarcation of the Regulation and the Hague Convention of 1971, the interpretation of the criterion of a„manifestly closer connection” and the criterion of a „close connection of a tort with an earlier contract”, the determination of the place of damage and admissibility of the application of Arts. 16 and 17 of the Rome II Regulation. Unfortunately there are cases when the Regulation was ignored by Polish courts. The authors of the supplement propose a number of possible amendments to the Regulation, including changes to conflict rules for traffic accidents, the protection of privacy and other personal rights, intellectual property, unfair competition and the protection of third party rights.