Regulation of the European Parliament and Council (WE) no 593/2008
of 17 June 2008 r.
on the law applicable to contractual obligations (Rome I)
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, in particular. 61 lit. c) i art. 67 paragraph. 5 dash drugie,
thereof,
Having regard to the opinion of the European Economic and Social Committee [1],
Acting in accordance with the procedure laid down in Article. 251 Treaty [2],
and bearing in mind, The following:
(1) The Community has set itself the objective of maintaining and developing an area of freedom, security and justice. For the gradual establishment of such an area, the Community is to adopt measures relating to judicial cooperation in civil matters having cross to the extent necessary for the proper functioning of the internal market.
(2) In accordance with Article. 65 lit. b) Treaty, these measures are to include measures to encourage the compatibility of the rules applicable in the Member States concerning the applicable law and jurisdiction.
(3) The European Council meeting in Tampere on 15 - 16 October 1999 r. approved the principle of mutual recognition of judgments and other decisions of judicial authorities as the 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 r. Council adopted a joint Commission and Council program of measures to implement the principle of mutual recognition of judgments in civil and commercial matters [3]. The program identifies measures relating to harmonization of conflict rules as those facilitating the mutual recognition of judgments.
(5) The Hague Programme [4] adopted by the European Council on 5 November 2004 r. called upon to actively continue its work on conflict rules relating to contractual obligations (“Rome I”).
(6) In order to increase the predictability of the outcome of litigation, certainty on applicable law and free movement of judgments proper functioning of the internal market requires, to force in the Member States of the conflict rules designate the same national law irrespective of, the court in which state action is brought.
(7) The substantive scope and provisions of this Regulation should be consistent with Council Regulation (WE) no 44/2001 of 22 December 2000 r. on jurisdiction and recognition and enforcement of judgments in civil and commercial [5] (“Bruksela I”) and Regulation (WE) no 864/2007 European Parliament and the Council of 11 July 2007 r. on the law applicable to non- (“Rome II”) [6].
(8) Family relationships should cover parentage in a straight line, marriage, affinity and consanguinity in the collateral line. The reference in Article. 1 paragraph. 2 to relationships having effects similar to marriage and other family relationships should be interpreted in accordance with the law of the Member State, to settle the matter.
(9) Liabilities on bills, checks, promissory notes and other negotiable securities must also cover the bills of lading, in which the obligations of the bill of lading due to its marketability.
(10) Liabilities arising out of dealings prior to entering into a contract covered by Article. 12 Regulation (WE) no 864/2007. For this reason, such obligations should be excluded from the scope of this Regulation.
(11) Freedom of choice by the law should be one of the foundations of a system of conflict rules for contractual obligations.
(12) One of the factors taken into account in determining, or choice of law result in an unequivocal manner, should be agreement between the parties granting a court or courts of a Member State have exclusive jurisdiction to resolve disputes arising under the contract.
(13) This Regulation shall not preclude the inclusion of the parties to the contract - by way of a substantive indication - the provisions of law other than a national or international conventions.
(14) Should the Community adopt in an appropriate legal instrument regulating the substantive scope of the contractual obligations, including general terms and conditions, instrument may authorize such regulation kolizyjnoprawny choice by the parties.
(15) If the choice of law and all other elements of the situation are located in another country than, whose law was chosen, that choice of law should not prejudice the application of those provisions of that other country, which can not be derogated from by agreement. This principle should apply regardless of, or choice of law has been supplemented by a contract of a foreign tribunal. Given, it does not intend to make substantive changes in relation to Article. 3 paragraph. 3 Convention 1980 r. the law applicable to contractual obligations [7] (“Rome Convention”), wording of this regulation shall be adjusted as closely as possible to the wording of Article. 14 Regulation (WE) no 864/2007.
(16) In order to achieve the main objective of this Regulation, which is to ensure legal certainty in the European area of justice, conflict of law rules should be predictable as far as possible. The courts should, however, retain a degree of discretionary authority, far as determination of the law, which is most closely associated with the case.
(17) With regard to the law in the absence of choice, concepts “provision of services” i “Sale of Goods” be interpreted in the same way, which in the case of application of Article. 5 Regulation (WE) no 44/2001 the, in which this regulation includes the sale of goods and services. Although franchise and distribution contracts are contracts for services, subject to special rules.
(18) With regard to the law in the absence of a multilateral system of choice should be systems, in which the transaction is made, such as regulated markets and multilateral trading platforms, referred to in Article. 4 Directive 2004/39/EC of the European Parliament and the Council of 21 April 2004 r. on markets in financial instruments [8], regardless of the, whether they occur in a central.
(19) If no choice of law, this right should be determined in accordance with the principle of the particular type of contract. If agreement can not be assigned to any of the listed types, or the components of the contract belong to more than one of the specified types of contracts, applicable law should be the law of the state, which the party required to meet the characteristic performance of the contract has his habitual residence. In the case of, which consists of a set of rights and responsibilities, attributable to more than one of the specified types of contracts, the characteristic performance of the contract must be determined, given its essence.
(20) If the contract is manifestly more closely connected with a country other than that indicated in Article. 4 paragraph. 1 or 2, Corrective rule in these regulations should provide for application of the law of that country. In order to determine the state, among other things to take into account the, whether the contract does not have very close links with another contract or other agreement.
(21) In the absence of choice, the law can not be determined on the basis of allocation or contract for one of the specified types of contracts, or on the basis of the place of habitual residence of the party obliged to meet the characteristic performance of the contract, the law of the State, with which it is most closely related. In order to determine the state, among other things to take into account the, whether the contract does not have very close links with another contract or other agreement.
(22) With regard to the interpretation of contracts of carriage of goods is not expected to introduce any substantive change in relation to Article. 4 paragraph. 4 The third sentence of the Rome Convention. Consistently, the contract of carriage of goods shall be treated as an agreement on a voyage charter parties and other contracts, which are used primarily for the carriage of goods. For the purposes of this Regulation, “sender” should refer to each person, which includes a contract of carriage with the carrier, a concept “carrier” should refer to the parties to the contract, who undertakes to transport goods, regardless of the, if it makes the transport.
(23) In relation to contracts concluded with parties regarded as the weaker side must be protected by rules of conflict, which are more favorable than the general rules.
(24) Particularly in relation to consumer contracts law rule should allow a reduction in the cost of settling cases, where the amount in dispute is usually small, and the evolution of the distance-selling techniques. Ensure consistency with Regulation (WE) no 44/2001 requires both a reference to the concept of directed activity as a condition for applying the standards of consumer protection, and uniform interpretation of the term in Regulation (WE) no 44/2001 and in this Regulation, taking into account, that the Joint Council and Commission declaration on Article. 15 Regulation (WE) no 44/2001 was, that “aby art. 15 paragraph. 1 lit. c) apply, not enough, undertaking to target its activities at the Member State of residence of the consumer or in the direction of a group of Member States including the State; it is also necessary, that the contract was concluded in the framework of its activities”. The Declaration also reminded, that “sam fakt, that the website is available, not sufficient for the application of Article. 15; it is also necessary to, This allowed the party to conclude distance contracts and that such agreement was actually signed by any means. At the same language or currency which a website is not a relevant factor”.
(25) Consumers should be protected by these regulations in force in their country of habitual residence, which can not be derogated from by agreement, provided that the contract was concluded with a consumer following the exercise by the entrepreneur in this country of the trade or business. The same protection should be guaranteed, if the entrepreneur, despite having no business or profession in the country of habitual residence of the consumer, any means, directs its activities to that country or to several countries including that country, a contract has been concluded as a result of such activities.
(26) For the purposes of this regulation to financial services such as investment services and investment activities and ancillary services provided by the trader to the consumer, referred to in Section A and B of Annex I to Directive 2004/39/EC, and to contracts for the sale of units in collective investment undertakings, no matter, whether they are covered by Council Directive 85/611/EEC of 20 December 1985 r. on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) [9], Articles should be applied. 6 this Regulation. As a consequence, made reference to the terms of issue or public offer of transferable securities or subscription and redemption of units in collective investment undertakings, shall include all elements binding the issuer or offeror to the consumer, excluding these items, which relate to the provision of financial services.
(27) The general rule provided for the collision of consumer contracts, there should be exceptions. One such exception is that, that the general rule should not apply to contracts, relating to a right in rem in immovable property or right to use property, unless such agreement covers use of the timeshare within the meaning of Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 r. the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare [10].
(28) It is important to ensure, to the general rule applicable to consumer contracts are not subject to the rights and obligations constitute financial instrument, as this could lead to a situation, where different laws would be appropriate for each of the instruments issued, and thus change their character and prevent their emissions and to make the offer. Similarly, in case of issue or produce such instruments on offer, the contractual relationship established between the issuer or provider and the consumer should not necessarily be governed by the State of habitual residence of the consumer, because there is a need to ensure uniformity of conditions of issue or offer. The same rule should apply to the multilateral systems covered by Article. 4 paragraph. 1 lit. h), which should be provided, that the law of the State of habitual residence of the consumer did not come into conflict with the rules applicable to contracts entered into under these schemes, or entered into with the operator of such systems.
(29) For the purposes of this Regulation, references to rights and obligations constituting the terms of issue, public offering or a public bid marketable securities and references to the subscription and redemption of units in collective investment undertakings should address these conditions, which relate, inter alia, the allocation of shares or units, rights in case of oversubscription, the right of withdrawal and related issues in the context of the Offer, as well as issues, referred to in Article. 10, 11, 12 i 13, thus providing, that all elements of the contractual obligations of the issuer offers for the consumer or the supplier are subject to one law.
(30) For the purposes of this regulation in the financial instruments and transferable securities instrument should be understood, referred to in Article. 4 Directive 2004/39/EC.
(31) The provisions of this Regulation should not affect the operation of a formal agreement designated as a system based on Article. 2 lit. a) Directive 98/26/EC of the European Parliament and the Council of 19 May 1998 r. on settlement finality in payment and securities settlement [11].
(32) In connection with the particular nature of contracts of carriage and insurance contracts, specific provisions should ensure an adequate level of protection for passengers and policyholders. Therefore, Article. 6 should not apply in the case of specific agreements.
(33) Where a contract of insurance not covering a large risk covers more than one risk, of which at least one is located in a Member State, and at least one is located in a third country, Special rules for insurance contracts contained in this Regulation shall apply only to insurance risk or risks situated in a Member State or States.
(34) The rule for individual contracts of employment should not exclude the application of mandatory provisions state, to which the worker is posted in accordance with Directive 96/71/EC of the European Parliament and the Council of 16 December 1996 r. concerning the posting of workers in the provision of services [12].
(35) Should not be deprived of the protection afforded employees under the provisions of, which can not be derogated from by contract or from which derogation is possible only for the benefit of employees.
(36) With respect to individual contracts of employment - providing work in another country should be regarded as a temporary, if the employee in carrying out his tasks abroad is back to work in the country of origin. The conclusion of a new employment contract with the original employer or an employer belonging to the same group of companies, as the original employer, should not preclude recognition of, that the employee carries out his work in another country temporarily.
(37) Considerations of public interest justify giving the courts of the Member States to appeal, in exceptional circumstances, the use of exceptions based on public policy and overriding mandatory provisions. Concept “mandatory provisions” be distinguished from the formulation “rules, which can not be derogated from by agreement”, and interpretation of this concept should be more restrictive.
(38) In the context of the assignment deadline “ratio” should clearly express, że art. 14 paragraph. 1 also applies to the effects dispositive assignment between the vendor and the purchaser, in these jurisdictions, where such effects are considered separately from the effects of bond. The term “ratio” should not be construed as referring to any relationship that may exist between the vendor and purchaser. In particular, it should not include the preliminary issues relating to assignment or contractual subrogation. This term should be strictly limited to aspects, which are of direct relevance to the assignment or contractual subrogation.
(39) Legal certainty requires a clear definition of habitual residence, especially for companies and other entities, legal personality or not having. Unlike Article. 60 paragraph. 1 Regulation (WE) no 44/2001, which establishes three criteria, conflict rule should be limited to a single criterion; otherwise the parties would not be able to foresee the law applicable in their case.
(40) Avoid dispersion of choice of law rules among several instruments and differences between those rules. This Regulation should not exclude the possibility of inclusion of law rules relating to contractual obligations to the provisions of Community law in relation to particular matters.
This Regulation should not prejudice the application of other instruments laying down rules to support the proper functioning of the internal market, if they can not be applied in conjunction with the law designated by this Regulation. Application of the law designated by this Regulation should not restrict the free movement of goods and services regulated by Community instruments, such as Directive 2000/31/EC of the European Parliament and the Council of 8 June 2000 r. on certain legal aspects of information society services, in particular electronic commerce in the Internal Market (“Directive on electronic commerce”) [13].
(41) Respect for international commitments of Member States, this Regulation should not affect international conventions, a party, at the time of adoption of this Regulation, one or more Member States. In order to increase the availability of rules in this area, the Commission shall publish in the Official Journal of the European Union the list of the relevant conventions established on the basis of information provided by Member States.
(42) Commission to the European Parliament and the Council concerning the procedures and conditions, according to which Member States would be authorized to negotiate and conclude on their own behalf agreements with third countries in individual and exceptional cases, concerning sectoral matters, which, containing provisions on the law applicable to contractual obligations.
(43) Therefore, the, the objective of this Regulation can not be sufficiently achieved by Member States, by reason of its scale and effects of this Regulation, be better achieved at Community level, Community may adopt measures in accordance with the principle of subsidiarity as set. 5 Treaty. According to the principle of proportionality set out in that Article, this Regulation does not go beyond, what is necessary to achieve this goal.
(44) In accordance with Article. 3 Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and the Treaty establishing the European Community, Ireland has notified its wish to participate in the adoption and application of this Regulation.
(45) In accordance with Article. 1 i 2 Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and the Treaty establishing the European Community, and without prejudice to Article. 4 this protocol, The United Kingdom does not participate in the adoption of this Regulation, is not bound by it and does not apply.
(46) In accordance with Article. 1 i 2 Protocol on the position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark does not participate in the adoption of this Regulation, not bound by it and not apply it,
ADOPTED THIS REGULATION:
CHAPTER I
SCOPE
Article 1
The scope of
1. Shall apply to contractual obligations in civil and commercial matters related to laws of different countries.
This Regulation shall not apply in particular to revenue, customs and administrative.
2. The scope of this Regulation shall be excluded:
a) the status or legal capacity and legal capacity of natural persons, subject to Article. 13;
b) obligations arising from family relationships and relationships deemed by the law for them right for having similar effects, including maintenance obligations;
c) obligations arising out of matrimonial property, of property regimes in the relationship recognized under the law for them right for having comparable effects to marriage and inheritance law, including wills;
d) obligations arising under bills of exchange, checks, promissory notes and other negotiable securities on, in which the obligations under such other negotiable instruments arise out of their marketability;
and) provisions for arbitration and jurisdiction agreements;
f) issues of company law and other legal persons or non-, such as the creation, by registration or otherwise, legal capacity and legal capacity, internal organization or winding up of companies and other entities with legal personality or not having, and personal liability of officers and authorities for the liabilities of such company or entity;
g) question, whether the agent is able to assume liabilities of third parties on behalf of persons represented by them or whether the board or other entity with legal personality or a non-third parties may incur obligations on behalf of that company or entity;
h) formation “Trusts” and the legal relations between the founders, trustees and beneficiaries;
i) obligations arising out of dealings prior to the conclusion;
j) insurance contract resulting from operations carried out by organizations other than undertakings, referred to in Article. 2 Directive 2002/83/EC of the European Parliament and the Council of 5 November 2002 r. concerning life assurance [14], whose object is to provide employees or persons working on own account, belonging to the plant or group of undertakings, or to a specific group or groups of occupations, benefits in the event of death or survival, interruption or curtailment of activity, occupational disease or an accident at work.
3. This Regulation shall not apply to evidence and procedure, without prejudice to Article. 18.
4. In this Regulation, the term “Member State” mean Member States, to which this regulation applies. W art. 3 paragraph. 4 i art. 7 However, this term means all Member States.
Article 2
The widespread use of
Any law specified by this Regulation shall apply regardless of, whether it is the law of the Member State.
CHAPTER II
UNIFORM RULES
Article 3
Freedom of choice
1. Agreement shall be governed by the law chosen. The choice shall be made expressly or clearly apparent from the provisions of the contract or the circumstances of the case. Parties may choose the law applicable to the whole contract or a part only.
2. The parties may at any time agree to, that the contract shall be governed by other than a, which for this contract was previously appropriate based on previous selections made in accordance with this Article or under other provisions of this Regulation. Changing the law made after the conclusion of the contract does not affect the validity of the contract because of the form within the meaning of. 11 nor the rights of third parties.
3. Where all other elements of fact at the time of choice are located in a country other than, whose law was chosen, choice of the parties does not affect the application of those provisions of that other country, which can not be derogated from by agreement.
4. Where all other elements of fact at the time of choice are located in one or more Member States, the parties' choice of applicable law other than the law of the Member State does not affect the application of Community law, where appropriate, in the shape of, in which they were implemented in the Member State of the forum, which can not be derogated from by agreement.
5. The existence and validity of the agreement of the parties on the law applicable to the provisions of Article. 10, 11 i 13.
Article 4
Law in the absence of choice
1. In terms of, in which no choice was made to the contract in accordance with Article. 3 and without prejudice to Article. 5–8, law governing the contract shall be as follows:
a) contract for the sale of goods is governed by the State, in which the seller has his habitual residence;
b) service contract shall be governed, in which the provider has his habitual residence;
c) agreement, the subject is right in immovable property or right to use property, shall be governed, where the property is located;
d) regardless of the point. c), agreement for temporary use of property for personal use, concluded for a period not exceeding six consecutive months, shall be governed, in which the reviewers to use the property has his habitual residence, provided that the taking is to use a natural person and has his habitual residence in the same country;
and) franchise agreement shall be governed, in which the franchisee has his habitual residence;
f) distribution contract shall be governed, where the distributor has his habitual residence;
g) contract for the sale of goods by auction shall be governed, in which you are bidding, if that place can be determined;
h) agreement in the multilateral system, which brings together or facilitates the bringing together of multiple third-party buying and selling financial instruments within the definition of art. 4 paragraph. 1 Item 17 Directive 2004/39/EC, under non-discretionary rules, and which is subject to one law, subject to this particular law.
2. Agreement, which is not covered by paragraph. 1 or the components of which would fall under more than one of the cases referred to in paragraph. 1 lit. a) h), shall be governed, which the party required to meet the characteristic performance of the contract has his habitual residence.
3. If all the circumstances of the case is clear, that the contract is manifestly more closely connected with a country other than that indicated in paragraph. 1 or 2, the law of that country.
4. If you can not determine the law applicable in accordance with paragraph. 1 or 2, Agreement shall be governed, which is most closely connected.
Article 5
Contract of carriage
1. In terms of, in which there is the choice of law applicable to the contract of carriage of goods in accordance with Article. 3, law applicable to such a contract is the law of, in which the carrier has his habitual residence, provided that in the same country is a place of taking over of the goods or the place of delivery, or habitual residence of the sender. If these conditions are not met, the law of the State, in which the parties agreed place of delivery.
2. In terms of, what has not been chosen the law applicable to the contract of carriage of persons in accordance with the second paragraph, contract of carriage shall be governed, in which the passenger has his habitual residence, provided that in the same country the place of departure or destination. If these conditions are not met, the law of the State, in which the habitual residence of the carrier.
As the law governing the contract of carriage of persons in accordance with Article. 3 parties may choose only the law of the State, in which:
a) passenger has his habitual residence; or
b) the carrier has his habitual residence; or
c) the seat of central administration of the carrier; or
d) the place of departure; or
and) the place of destination.
3. If all the circumstances of the case is clear, that the contract - in the absence of choice - is manifestly more closely connected with a country other than that indicated in paragraph. 1 or 2, the law of that country.
Article 6
Consumer contracts
1. Without prejudice to Article. 5 i 7 agreement signed by an individual in order to, which can be regarded as being outside his trade or profession (“consumer”), with another person engaged in commercial or professional activities (“entrepreneur”) shall be governed, in which the consumer has his habitual residence, provided that the trader:
a) pursues his commercial or professional activities in the country, in which the consumer has his habitual residence; or
b) by any means, directs such activities to that country or to several countries including that country;
and the contract falls within the scope of this activity.
2. Notwithstanding paragraphs. 1, for the contract, which satisfies the conditions in paragraph. 1, parties may choose the law applicable in accordance with Article. 3. Such a choice may not result in depriving the consumer of the protection granted under the provisions of, which can not be derogated from by agreement, under the law, that in accordance with paragraph. 1 would be appropriate in the absence of choice.
3. If you are not satisfied the conditions set out in paragraph. 1 lit. a) i b), law governing the contract between the consumer and the entrepreneur is determined in accordance with Article. 3 i 4.
4. Paragraphs 1 i 2 does not apply to:
a) service contracts, if services are to be provided to the consumer exclusively in a country other than that, in which the consumer has his habitual residence;
b) contract of carriage other than contracts relating to package travel within the meaning of Council Directive 90/314/EEC of 13 June 1990 r. on package travel, holidays and package tours [15];
c) contracts, relating to a right in rem in immovable property or right to use property, other than contracts, relating to a right to use immovable properties on a timeshare basis within the meaning of Directive 94/47/EC;
d) rights and obligations constituting a financial instrument and rights and obligations which are the conditions governing the issue and public offer, public takeover offer of transferable securities, as well as subscription and redemption of units in collective investment undertakings, provided that such activities do not constitute the provision of financial services;
and) contracts falling under the scope of Article. 4 paragraph. 1 lit. h).
Article 7
Contracts of insurance
1. This Article applies to contracts, referred to in paragraph. 2, regardless of the, whether insurance risk is situated in a Member State, and to all insurance contracts covering risks situated in the territory of the Member States. This Article does not apply to reinsurance contracts.
2. An insurance contract covering a large risk as defined in Article. 5 lit. d) First Council Directive 73/239/EEC of 24 July 1973 r. on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of direct insurance (other than life insurance) [16] subject to the law chosen by the parties in accordance with Article. 3 this Regulation.
In terms of, in which the parties have not choice of law, insurance contract shall be governed, in which the insurer has his habitual residence. If all the circumstances of the case is clear, that the contract is manifestly more closely connected with another country, the law of that country.
3. In the case of insurance contracts other than contracts covered by paragraph. 2 as the applicable law the parties may choose, accordance with Article. 3, only:
a) the law of the Member State, in which insurance risk is situated when the agreement;
b) State law, in which the policyholder has his habitual residence;
c) in the case of life insurance - the law of the Member State, policyholder is a national;
d) in the case of insurance contracts covering risks limited to events occurring in one Member State other than the Member State, in which the risk is insurance - the law of that State;
and) if the policyholder with a contract of insurance under this paragraph pursues a commercial or industrial, or the liberal professions, a contract of insurance shall include at least two insurance risks associated with these activities and situated in different Member States - the right of one of those Member States or the law of the habitual residence of the policyholder.
If in the cases referred to in subparagraph. a), b) lub e) Member States, referred to, give greater freedom to choose the law applicable to the contract, parties may take advantage of this freedom.
In terms of, in which the parties have not chosen in accordance with this paragraph, This agreement shall be governed by Member State, in which insurance risk is situated when the agreement.
4. To insurance contracts, where a Member State introduces compulsory insurance, , the following additional rules:
a) the insurance contract does not satisfy the requirement of insurance, if they are not kept detailed provisions relating to the insurance accepted by the Member States, which imposes the obligation. Where the law of the Member State, in which the risk is insurance, and the law of the Member State, imposing the insurance obligation, are in conflict, the provisions of the latter;
b) By way of derogation from paragraph. 2 i 3 Member State may provide, that the insurance contract shall be governed by Member State, which calls for an insurance.
5. For the purposes of. 3 the third paragraph and paragraph. 4, where the contract covers risks situated in more than one Member State, shall be, that the contract consists of a number of contracts, each relating to only one Member State.
6. For the purposes of this Article, the State, in which the risk is insurance, determined in accordance with Article. 2 lit. d) Second Council Directive 88/357/EEC of 22 June 1988 r. on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services [17], while in the case of life insurance state, in which the risk is, State is undertaking within the meaning of. 1 paragraph. 1 lit. g) Directive 2002/83/EC.
Article 8
Individual employment contracts
1. A contract of employment subject to the law chosen by the parties in accordance with Article. 3. This choice of law can not lead to depriving the employee of the protection granted under the provisions of, which can not be derogated from by agreement, under the law, what, in the absence of choice, would be appropriate in accordance with paragraph. 2, 3 i 4 this article.
2. In terms of, what has not been chosen the law applicable to the individual employment contract, Agreement shall be governed, where, or - if none are available - from which the employee habitually carries out his work under the contract. For changing the state, in which the work is usually provided, not be considered temporary employment in another Member.
3. If you can not determine the law applicable in accordance with paragraph. 2, Agreement shall be governed, in which the establishment, through which a worker employed.
4. If all the circumstances as, that the contract is more closely connected with a country other than those specified in paragraph. 2 or 3, the law of that country.
Article 9
Mandatory rules
1. Overriding mandatory provisions are provisions, observance of which is considered by the State for such an important element in the protection of public interests, such as political organization, social or economic, that they apply to situations covered by their scope, regardless of, what law is applicable to the contract in accordance with this Regulation.
2. This Regulation shall not prejudice the application of mandatory provisions of the forum.
3. You can give effect to the provisions for enforcement for their application state, in which he has been or performance of obligations under the contract, the, in which these rules make, performance of a contract is illegal. In considering the granting of the effectiveness of such provisions, takes into account their nature and purpose and the consequences of their application or non-.
Article 10
Consent and material validity
1. The existence and validity of the contract or any of its provisions shall be assessed according to the law, in accordance with this Regulation, it would be appropriate for her, if the contract or term were valid.
2. However, if the circumstances indicate, it would not be reasonable to assess the effects of the behavior of one of the parties under the law as determined in accordance with paragraph. 1, This page can - in order to determine, that did not agree on a contract - to invoke the right of the State of their habitual residence.
Article 11
Validity because of the form
1. Contract concluded between persons, who - or whose representatives - are in the same country at the time of its conclusion, is important because of the form, if it satisfies the requirements of form specified by the law applicable to the contract in accordance with this Regulation or the law of, where the contract was concluded.
2. Contract concluded between persons, who - or whose representatives - are located in different countries at the time of its conclusion, is important because of the form, if it meets the requirements as to the form specified by the law applicable to the contract in accordance with this Regulation or the law of, which at the time the contract is any party or its representative, or state law, in which either party was at that time, the habitual residence.
3. Unilateral act, which refers to an agreement or agreements already concluded, to be included, is important because of the form, if they meet the requirements as to the form prescribed by law, in accordance with this Regulation is or would be applicable to the contract, or by state law, in which that act was, or state law, in which the person, who made the following, had at that time, the habitual residence.
4. Paragraphs 1, 2 i 3 this Article shall not apply to contracts, which are covered by Article. 6. To the form of contracts, the law of the State, in which the consumer has his habitual residence.
5. Notwithstanding paragraphs. 1–4, contract, relating to a right in rem in immovable property or right to use property, subject to the requirements about the form prescribed by state law, where the property is located, If, under this law:
a) These requirements apply regardless of where the contract and the law governing the contract; and
b) These requirements can not be derogated from by agreement.
Article 12
Scope of law
1. Law governing the contract under this Regulation shall apply in particular to:
a) its interpretation;
b) performance of the obligations arising from;
c) within the powers conferred on the court by its procedural law, effects of total or partial failure of these commitments, including the assessment of damages, the, the extent governed by rules of law;
d) various ways of extinguishing obligations, and prescription and limitation of rights arising from the expiry of time;
and) consequences of nullity of the contract.
2. In respect of the performance and the, to be taken in the event of defective performance, takes into account the law of the State, in which performance.
Article 13
Lack of legal capacity to act
In a contract concluded between persons, which are located in the same country, an individual, which would have legal capacity to act under the laws of that State, may rely on the lack of legal capacity or incapacity under the law of another State only if, at the time of the contract the other contracting party knew of the missing or did not know about it because of the negligence.
Article 14
Assignment and contractual subrogation
1. In the event of assignment or subrogation of the contractual relationship between the vendor and the purchaser of a debt due to another person (“debtor”) subject to the law, in accordance with this Regulation is applicable to a contract between the vendor and purchaser.
2. Right, governing the transferred receivables, determine its assignability, relationship between the assignee and the debtor, assumptions the assignment or subrogation against the debtor and the effect of the provision exempting the debtor.
3. The concept of transfer for the purposes of this article includes an unconditional transfer of claims, transfer of receivables as collateral, and the establishment of a lien or other security for debts.
Article 15
Statutory Subrogation
In the event that a person (“creditor”) has a contractual claim against another person (“debtor”), and a third person has a duty to satisfy the creditor, or indeed satisfied it, discharge of that duty, law applicable to the obligation of a third party determines, whether and to what extent the third person is entitled to claim from the debtor's rights, which entitled the creditor against the debtor, under the law governing their relationship.
Article 16
Several debtors
If a creditor has a claim against several debtors liable for the same claim, a creditor has been satisfied in whole or in part by one of them, right, governing the liability of the debtor against the creditor, is appropriate also for the debtor's recourse against the other debtors. The other debtors may use allegations, which was available to them to the creditor, the extent provided by law applicable to their obligations to the creditor.
Article 17
Deduction
Deduction, that has not been agreed by the parties' agreement, subject to the law applicable to claims, from which the deduction is made.
Article 18
Evidence
1. The law applicable to contractual obligation under this Regulation shall apply to the, what it contains relating to contractual obligations presumptions of law or determine the burden of proof.
2. Evidence of a contract or legal act can be proved by any means permitted under the law of the court or by any of the rights, referred to in Article. 11, according to which the contract or act is formally valid, provided that proof can be carried out in this way by the forum.
CHAPTER III
OTHER PROVISIONS
Article 19
Habitual residence
1. For the purposes of this Regulation, the habitual residence of companies and other entities, legal personality or not having, shall be the place of central administration.
The habitual residence of the individual, acting in the course of his business, considered principal place of business.
2. In the event of contract in connection with a branch, agency or other establishment, or under a contract such an obligation is the responsibility of the branch, agency or branch, the habitual residence shall be the place of this branch, agency or branch.
3. The relevant moment for determining habitual residence shall be the contract while.
Article 20
The exclusion references
For the law of the State, indicated as appropriate under this Regulation, considered the legal standards applicable in the country, other than its rules of private international law, unless this Regulation provides otherwise.
Article 21
Public policy of the forum
Law enforcement, specified by this Regulation, may be refused only, if such application is manifestly incompatible with public policy of the forum state.
Article 22
States with more than one legal system
1. Where a State comprises several territorial units, each of which has its own rules of law concerning contractual obligations, to determine the law applicable under this Regulation, each territorial unit shall be considered state.
2. Member State, within which different territorial units have their own rules of law concerning contractual obligations, not required to apply this Regulation in the case of a conflict only to such units.
Article 23
Relationship to other provisions of Community law
With the exception of. 7, This Regulation shall not prejudice the application of Community law, which, in relation to particular matters, lay down conflict of laws relating to contractual obligations.
Article 24
Relationship with the Rome Convention
1. This Regulation replaces the Rome Convention in the Member States, except for the territories of Member States, which fall within the territorial scope of that convention, and who do not apply to this regulation in accordance with Article. 299 Treaty.
2. In terms of, in so far as this Regulation replaces the provisions of the Rome Convention, any reference to this Convention shall be deemed references to this Regulation.
Article 25
Relationship with existing international conventions
1. This Regulation shall not prejudice the application of international conventions, the parties - at the time of adoption of this regulation - is one or more Member States, and which lay down conflict of law rules relating to contractual obligations.
2. This Regulation is, however - in relations between Member States - take precedence over conventions concluded exclusively between two or more Member States, the, in so far as such conventions concern matters governed by this Regulation.
Article 26
List of Conventions
1. By 17 June 2009 r. notify the Commission of the Convention, referred to in Article. 25 paragraph. 1. After that date, Member States shall notify the Commission of all denunciations of such conventions.
2. Within six months of receipt of notification, referred to in paragraph. 1, The Commission shall publish in the Official Journal of the European Union:
a) of the conventions, referred to in paragraph. 1;
b) list of cases terminated, referred to in paragraph. 1.
Article 27
Review clause
1. By 17 June 2013 r. The Commission shall submit to the European Parliament, Council and the European Economic and Social Committee a report on the application of this Regulation. If necessary, the report shall be accompanied by proposals for amendments to this Regulation. The report covers:
a) study on the law applicable to insurance contracts and assess the impact of, which would be introduced; and
b) assessment of the application of Article. 6, in particular the consistency of Community law in the field of consumer protection.
2. By 17 June 2010 r. The Commission shall submit to the European Parliament, Council and the European Economic and Social Committee a report on the issue of the assignment or subrogation against third parties, and the priority of claims transmitted over the rights of others. The report is accompanied, if necessary, proposal to amend this regulation and impact assessment regulations, to be introduced.
Article 28
Application in time
This Regulation shall apply to contracts concluded after 17 December 2009 r.
CHAPTER IV
FINAL PROVISIONS
Article 29
Entry into force and application
This Regulation shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.
It shall apply from the date of 17 December 2009 r., with the exception of. 26, which shall apply from the date of 17 June 2009 r.
This Regulation shall be binding in its entirety and directly applicable in Member States in accordance with the Treaty establishing the European Community.
Done at Strasbourg 17 June 2008 r.
For the European Parliament
H.-G. Poettering
Chairman
For the Council
J. Lenarčič
Chairman
[1] Dz.U. C 318 of 23.12.2006, s. 56.
[2] Opinion of the European Parliament of 29 November 2007 r. (published in the Official Journal) and Decision of the Council of 5 June 2008 r.
[3] Dz.U. C 12 of 15.1.2001, s. 1.
[4] Dz.U. C 53 of 3.3.2005, s. 1.
[5] Dz.U. The 12 of 16.1.2001, s. 1. Regulation as last amended by Regulation (WE) no 1791/2006 (Dz.U. The 363 of 20.12.2006, s. 1).
[6] Dz.U. The 199 of 31.7.2007, s. 40.
[7] Dz.U. The 334 of 30.12.2005, s. 1.
[8] Dz.U. The 145 of 30.4.2004, s. 1. Directive as last amended by Directive 2008/10/EC (Dz.U. The 76 of 19.3.2008, s. 33).
[9] Dz.U. The 375 of 31.12.1985, s. 3. Directive as last amended by Directive 2008/18/EC of the European Parliament and Council (Dz.U. The 76 of 19.3.2008, s. 42).
[10] Dz.U. The 280 of 29.10.1994, s. 83.
[11] Dz.U. The 166 of 11.6.1998, s. 45.
[12] Dz.U. The 18 of 21.1.1997, s. 1.
[13] Dz.U. The 178 of 17.7.2000, s. 1.
[14] Dz.U. The 345 of 19.12.2002, s. 1. Directive as last amended by Directive 2008/19/EC (Dz.U. The 76 of 19.3.2008, s. 44).
[15] Dz.U. The 158 of 23.6.1990, s. 59.
[16] Dz.U. The 228 of 16.8.1973, s. 3. Directive as last amended by Directive 2005/68/EC of the European Parliament and Council (Dz.U. The 323 of 9.12.2005, s. 1).
[17] Dz.U. The 172 of 4.7.1988, s. 1. Directive as last amended by Directive 2005/14/EC of the European Parliament and Council (Dz.U. The 149 of 11.6.2005, s. 14).
