The author of this post is Verena Wodniansky-Wildenfeld, University of Vienna.
Since the introduction of the Rome II Regulation, the question whether rules of conduct of non-governmental organisations are to be taken into account in the context of Article 17 of that Regulation has been the subject of extensive discussion.
A recent decision of the Austrian Supreme Court dealt with the impact of the FIS Rules, which are drawn up by the international ski federation (FIS) and contain guidelines to assist in the promotion of skiing and snowboarding (I.1. FIS rules), with regard to Article 17 Rome II. The court held that the FIS Rules can generally fall within the “rules of safety and conduct” defined in Article 17 Rome II. However, this is only the case if the rules at the place of the event causing the damage are not identical to the rules of safety and conduct of the applicable law. Further examination was therefore not necessary, as the FIS rules are used to determine the duty of care in both states: the state where the harmful act was committed and the state of the applicable law. Nevertheless, the ruling contributes to provide clarity on the interpretation of “rules of safety and conduct” and enrich the case law on Article 17 Rome II.
Facts of the case
The case at hand concerned the collision of two skiers domiciled in the Netherlands in an Austrian ski resort. Prior to the accident, the plaintiff was on the slope above the defendant when the defendant crossed the plaintiff’s lane without turning to see if any skiers are coming from above. In the following crash, both parties were injured.
The Austrian Supreme Court first found the application of Dutch substantive law under Article 4(2) Rome II to be undebated. Article 4(2) Rome II provides an exception to the law of the place where the damage occurred, as appointed in Article 4(1) Rome II, in favour of the law of the common habitual residence of the person claimed to be liable and the person sustaining the damage. As the place where the damage occurred and the place where the harmful act was committed normally coincide in skiing accidents, the issue of the FIS rules as foreign rules of safety and conduct arises mainly in cases governed by Article 4(2) Rome II.
The further examination was therefore limited to the assessment of the FIS Rules, as the defendant’s conduct could have constituted a breach of Rule 1. According to this rule every skier must behave in a way not to endanger or harm others. The Court holds that the question whether the conduct in question results in liability is governed exclusively by the lex causae determined in Article 4(2), and thus by Austrian law. However, the court confirms the FIS Rules can be taken into account as a rule of conduct and standard of due care. As both Austrian and Dutch law measure the conduct of skiers against the FIS Rules, the latter are in any case taken into account by the application of Dutch law. Thus, no conduct rules foreign to the applicable law needed to be taken into account and their consideration under Article 17 Rome II was superfluous.
Although ultimately the “rules of safety and conduct” at the place of the harmful event were not taken into account, the Supreme Court thus seems to have clarified that for the required standard of care, also norms established by non-state organisations are to be considered under Article 17 Rome II.
While mandatory rules, e.g. of formalised and customary law, distinguishing legal from illegal conduct, are evidently encompassed by Article 17 Rome II, it is debated whether purely private safety and conduct rules can also be considered as “rules” in the understanding of Article 17 Rome II. “Soft law”, such as the FIS Rules of Conduct, is the most prominent example of such standards.
The question of the relevance of the FIS rules to cross-border situations in the context of Rome II has been addressed by other courts before. In a similar case, the Higher Regional Court Munich had assumed that the FIS Rules were to be taken into account as customary law at the place of the harmful event (Austria). However, according to Austrian case law, the FIS Rules cannot be considered customary law in Austria. Moreover, in Austria as in the Netherlands, the FIS Rules of Conduct were never legally codified or given legal force in the form of a decree. The situation, however, differs in European countries. In Italy, for example, the conduct on the ski slopes is prescribed by special law through the third section of the law on safety in skiing (Law No. 363 of 24 December 2003). Also, in Slovenia the obligatory conduct of skiers is regulated by special law (Act No. 110/2002 of 18 December 2002).
There is also controversy in literature as to what significance rules of non-state actors have within the framework of Article 17 Rome II. The key question is whether Article 17 Rome II requires a binding nature of the rule or whether purely factual obedience of rules set by private actors is sufficient. According to the “local data theory”, a very broad approach is to be taken. As even state law is only taken into account as a matter of fact, a differentiation between the legally or factually binding nature between statutory law and “soft law” created by non-state organizations cannot be justified (Calliess/Renner/v. Hein Art 17, para. 19; Dicey/Morris/Collins CoL 34-069).
A second theory seeks to distinguish between two aspects: The question whether and to what extent non-legal standards of conduct are relevant for the liability shall be assessed exclusively in accordance with the lex causae. Insofar as the lex cause takes recourse to soft law when determining liability, the standards of conduct at the place of the event giving rise to the liability must then be taken into account on a second level (BeckOGK/Maultzsch Art 17 Rn 21; NK-BGB/Lehmann Art 17 para 34).
A third theory considers it neither possible nor necessary for the FIS Rules to be taken into account under private international law per se. Nevertheless, on the level of substantive law, they can serve as an interpretative aid for the liability if the national tort law system provides a general clause for the assessment of the conduct of the tortfeasor (Diehl IPRax 2018, 374)
With the present decision, the Austrian court has not explicitly taken a position on the controversy raised in the literature. Up until now it seemed that the Supreme Court would follow the second theory. In a purely domestic decision, the Supreme Court stated that under Austrian Civil Law, considerable importance to the FIS rules is to be attributed, but only “in applying the general principle that everyone must behave in such a way as not to endanger others.” However, the fact that the Supreme Court does not mention the Dutch sweeping clause and recourse to soft law when determining liability, which would be a necessary precondition for the applicability of the FIS Rules under the second theory, seems contradictory to this approach. The reference in the case at hand to the FIS Rules for assessing the duty of care with regard to Article 17 Rome II without further explanation is therefore rather surprising. For the final act of the ongoing debate, a decision of the CJEU will nevertheless have to be awaited. In any way, whether the FIS Rules are considered under Dutch Law cannot, contrary to the Supreme Court’s judgment, matter in their application under Article 17 Rome II.