Rome II Proceedings Could Decide Venue for Suits

Efforts by the European Union to facilitate civil litigation between citizens of different member states were frustrated by proposed regulations that would require EU countries to apply the law of other member states when resolving legal claims against the press. In January 2007, the latest proposals considered by the EU’s parliamentary body drew pleas from publishers and journalists to exclude the media from the regulations.

Under existing standards, international legal disputes between citizens of member states are governed by the law of the country in which an individual incurs damages, not necessarily where the event giving rise to the litigation took place. Therefore, under current regulations, a car accident which causes personal injuries would require courts to apply the law of the victim’s country of citizenship, where a victim would presumably incur costs related to medical expenses, rather than the country where the accident took place.

The regulations were first proposed on July 22, 2003 by the European Commission of Ministers, the executive body of the European Union. The initiative, commonly referred to as the “Rome II” agreements, focused on the question of civil liability for transnational damages caused by citizens of the EU’s 27 member states. Although a Jan. 18, 2007 press release from the European Parliament reported that car accidents represent the majority of cross-border disputes, the European Commission’s initial proposal also governed legal claims arising from violations of privacy or defamation.

On June 27, 2005, the European Parliament issued the Draft European Parliament Legislative Resolution on the Commission’s earlier proposals in a report issued by Rapporteur Diana Wallis, a member of the European Parliament serving on the Committee on Legal Affairs. Included in its amendments to the Commission’s proposal, the report changed the proposed regulation’s treatment of legal disputes related to invasion of privacy and defamation.

After the Commission’s proposal was introduced in the European Parliament in July 2003, the parliamentary body of the European Union amended the Commission’s proposal to read:

“As regards the law applicable to a non-contractual obligation arising out of a violation of privacy or rights relating to the personality, the law of the country in which the most significant element or elements of the loss or damage occur or are likely to occur shall be applicable, but a manifestly closer connection with a particular country may be deemed to exist.”

Under the proposed parliamentary regulations, a court would be required to consider whether a publication or broadcast is principally directed at a country other than the country in which the damage occurred or whether the language of a publication or broadcast is a language spoken by an audience in a given country. If a “manifestly closer connection exists” with another country and its laws conflict with the law of the country in which the elements of damage occurred, the law of the country to which the publication or broadcast is directed, rather than where the harm occurs, would apply.

Following public hearings on the matter, the Commission adopted a modified proposal in light of the parliamentary report on Feb. 21, 2006. The amended proposals did not include the changes to the specific rules governing privacy and rights related to the individual but instead excluded the application of Rome II from such disputes altogether.

“It is incredibly disappointing that the Commission has decided to withdraw the provision relating to defamation from Rome II,” Wallis wrote on her Web site in 2006. “It is inconceivable that we should regulate Private International Law at European level without including the media because this is an area which is so much cross border.”

A second reading of the Rome II regulations was presented to the European Parliament on Jan. 18, 2007, and Wallis insisted on reinserting the provisions on defamation and privacy. According to a Jan. 19, 2007 article published by the European Report, European Union Justice, Freedom and Security Commissioner Franco Frattini told deputies that the Council would never agree to such terms.

The European Report also reported that members of the media had contacted members of the European Parliament before the second reading and demanded that the Rome II regulation exclude any reference to violations of privacy or defamation.

“[I]t has been recognised by academics and lawyers than an absence of a rule in the Rome II Regulation does not seem to present difficulties for practitioners,” European Publishers Council (“EPC”) Executive Director Angela Mills Wade said, referring to a letter cosigned by the EPC, the European Newspaper Publishers Association, and the European Federation of Journalists. “Indeed, in practice, media and journalists are quite familiar with their national law, which provides legal certainty for their daily work.”

Despite the media’s pleas and concerns that the inclusion of the provisions would “open the floodgates for lawsuits” across the EU, the European Parliament voted on Jan. 18, 2007 to reinsert the clause.

Under European Union procedures, because the European Parliament’s second reading of the regulation’s text differs substantially from the revised position proposed by the Council of Ministers, a conciliation committee will be convened to forge an agreement.

– Christopher Gorman, Silha Research Assistant

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This page contains a single entry by cla published on October 21, 2009 3:36 PM.

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