EU needs to find coherent cross-border legislation

Finding the right balance to provide a general roadmap for the law applicable to cross-border tort litigation within the EU has been a long process. Other European instruments dealing with cross-border cases are more accepted now: the Brussels Regulation, which allocates jurisdiction, and the old Rome Convention on the law applicable to contract law disputes (soon to be a European regulation).

However, the missing piece in the jigsaw, the so-called ’Rome II’ proposal, which has been eluding European legislators for many years, is about to complete its second reading in the European Parliament. But that may not be the end of the story – there are rumours of a conciliation process to iron out the final difficulties between the European law-making institutions.

Why should this have been so difficult when there is clearly a perceived need to provide legal certainty? Some member states of the EU have no conflict rules at all, some have only partial rules and, of course, in other cases the rules of individual countries may themselves be in conflict with one another.

So if we are to know where we are with regards the legal diversity of Europe, we at least need an agreed set of coherent rules; a set of rules that we can all apply to determine whose national law is to be used in any given set of tortious facts that the increasingly mobile lives of EU citizens throw up.

The problem has been that Rome II has been a first in a number of areas. There hasn’t been any existing conventions or accepted starting point, as with Brussels I and Rome I.

Also, previously, given the nature of these instruments and the state of development of the EU, the European Parliament only had the right to be consulted, whereas with Rome II the European Parliament is now an equal legislative partner with the proposal, subject to the full co-decision process.

There were bound to be problems when such a technical field came into co-decision and also a reticence to let the decision-making out of the expert committees in national justice ministries. However, the European Parliament has taken its time, consulted widely, held hearings and engendered debate.

The two main issues still causing difficulty show just how political private international law is, and therefore why it should not just be left to the ’experts’.

One of the most heated debates has centred around the law applicable to defamation. This is no surprise, as even the UK Parliament famously gave up on this in a purely national context. Very simply, when someone is defamed should their law apply or that of the publication’s, ie the law of the country of editorial decision? This is a minefield. The law in some countries always points to the law of the defamed ’victim’. Often the press will take issue with this, saying the ’victims’ are inevitably well-heeled individuals and it is a matter of press freedom. In some countries, such as Sweden, this touches on their constitutions.

So difficult an issue is this that the European Commission has belatedly attempted to withdraw it entirely from the proposal. That may ultimately be the only answer, although the European Parliament did get a formulation at first reading that was supported widely and which it is currently sticking to. A blank space in the legislation will not provide legal certainty and the issue in a world of growing global and popular media will surely be back to haunt the legislator sooner rather than later.

The second area of keen debate is that of road traffic accidents. This is one of the biggest incidents of cross-border torts, as more of our citizens are on the move than ever before.

The problem is that the level of compensation for personal injury varies enormously in member states. Put simply, if a Brit has an accident in Spain the compensation would likely be a third or even a quarter of what might be awarded by an English court. The problem being that it is in the UK that the victim will probably live out their life.

This has led to a huge debate, with suggestions for solutions that certainly offend the private international law purists, even if they do deliver justice. The debate continues, but the European Parliament will not let go, as it plainly touches on the lives of many whom the European Parliament represents.

From this debate it may become clearer that private international law rules should be a subject for more public debate. After all, international law in other areas has become very topical these days.