First Advocate Common Szpunar Opined final week in Case C-86/23 E.N.I., Y.Ok.I. v HUK-COBURG-Allgemeine Versicherung AG – let’s name that case HUK-Coburg. The case considerations the applying of Article 16 Rome II’s lois de police aka lois d’software immédiate aka overriding necessary provisions.
A declare is issued for compensation submitted by non-public people, who’re Bulgarian nationals, in accordance with obligatory insurance coverage towards civil legal responsibility in respect of the usage of motor automobiles, towards an insurance coverage firm for non-material injury brought on by the demise of their daughter in a highway visitors accident in Germany.
The core problem to find out by the CJEU is the idea of overriding necessary provisions in Article 16 Rome II and particularly the dedication of the standards for classifying guidelines safeguarding particular person rights and freedoms as ‘overriding necessary provisions’. This echos the dialogue in Unamar, the place the Brussels Courtroom of Attraction finally held that the related Belgian provisions solely serve the pursuits of personal events, not of the Belgian public authorized order, therefore there will be no query of software of the lois de police exception (present Opinion suggests ‘solely’ as the important thing phrase within the Courtroom of Attraction’s evaluation). The present dialogue by the AG additionally echoes the info in Lazar.
Opposite to German legislation (28), Bulgarian legislation (lex fori) (29) offers that compensation for non-material injury is decided by the courtroom giving judgment on the premise of honest standards. That courtroom factors out that, beneath Bulgarian legislation, compensation is payable for all psychological ache and struggling endured by dad and mom on the demise of their baby on account of an unlawfully and culpably brought about highway visitors accident. It isn’t mandatory for the hurt to have resulted not directly in pathological injury to the well being of the sufferer.
(32) The mere incontrovertible fact that, by making use of the lex fori, there can be a special final result with regard to the quantity of compensation from that which might have been reached by making use of the lex causae is just not enough to conclude that the Bulgarian provision at problem could also be labeled as an ‘overriding necessary provision’ inside the that means of Article 16 of the Rome II Regulation, offered, the AG provides, that the applying of the lex causae is suitable with concerns of justice.
(36) Over and above CJEU Unamar, the Courtroom additionally in Da Silva Martins explored the idea and the standards. (42) ff the AG recollects the final rules, and (56) he factors to recital 32 Rome II’s reference to ‘‘concerns of public curiosity’. The AG is totally proper in opining that safeguarding particular person curiosity might completely contribute to the safety of public curiosity. His argument (60) is widespread sense and completely proper:
A primary argument is linked to the interaction of collective and particular person pursuits. Thus, within the discipline of tort legislation, the principles {that a} Member State establishes with the intention to shield a class of individuals who’ve sustained injury, by modifying, particularly, the burden of proof or by establishing a minimal threshold for compensation, may have the principal goal to revive the steadiness between the competing pursuits of personal events. Not directly, they might subsequently additionally contribute to safeguarding the social and financial order of the Member State by lowering the affect of accidents on public assets.
On the premise of CJEU authority as outlined, the AG concludes that the case at problem might completely result in the courtroom seised making use of Bulgarian legislation nonetheless provided that
it finds, on the premise of the existence of sufficiently shut hyperlinks with the nation of the discussion board and an in depth evaluation of the phrases, basic scheme, goal and context of the adoption of that directive, that it’s of such significance within the nationwide authorized order that it justifies a departure from the relevant legislation designated pursuant to Article 4 [Rome II].
A very good opinion which I hope can be adopted by the Courtroom.
Geert.
EU Personal Worldwide Regulation, 4th ed. 2024, 4.87 ff.
