Rome II – Mystery Solved

It has been said that the wheels of justice turn slowly, but it has only taken 4 years since EC Regulation No 864/2007 (Rome II) was published for the debate about when the national courts should start applying it to finally be settled.  Mrs Justice Slade hearing Homawoo v GMF Assurances SA in the High Court took action to obtain clarity by referring questions to the Court of Justice of the European Union.  In November 2011 the ECJ gave a ruling in the case of Homawoo. The decision of the ECJ was that a national court must apply Rome II to events giving rise to damage occurring after 11 January 2009.

The difficulty arose because Article 31 of Rome II stated

"This Regulation shall apply to events giving rise to damage which occur after its entry into force." 

So far, so clear.  When did the Regulation come into force?  The general rule under Article 297 of the Treaty on the Functioning of the EU is that, in the absence of a regulation containing a specific date for its entry into force, it was entered into force on the 20th day following its publication in the Official Journal.  Rome II was published on 31 July 2007, so, following the general rule it would come into force on 20 August 2007. 

However, Article 32 of Rome II then says this Regulation shall apply from 11 January 2009, except for Article 20 which shall apply from 11 July 2008.  Did that limit the application of Rome II to accidents only after 11 January 2009, or did Rome II apply to accidents after 20 August 2007 – the date when it came into force – as well?  Did it matter when proceedings were issued?

In Homawoo, the UK claimant was injured in an RTA in France on 29 August 2007.  If liability had been in issue then it would likely have been determined under French law whether under Rome II or the previous governing provision  the Private International Law (Miscellaneous Provisions) Act 1995.  However, the issue in Homawoo was assessment of damages which, pre Rome II, would have been governed by English law as the law of the forum following Harding v Wealands [2007]. 

The ECJ concluded that

"Articles 31 and 32 of the Regulation, read in conjunction with Article 297 TFEU, must be interpreted as requiring a national court to apply the Regulation only to events giving rise to damage occurring after 11 January 2009 and that the date on which the proceedings seeking compensation for damage were brought or the date on which the applicable law was determined by the court seised have no bearing on determining the scope ratione temporis of the Regulation."