European Commission’s Report on Rome II Published

The European Commission published on 31 January 2025 its long-awaited report (COM(2025) 20 final) on the application of Regulation No 864/2007 on the law applicable to non-contractual obligations (Rome II).

The report is based on Article 30 of the Regulation. The latter provision required the Commission to submit to the European Parliament, the Council and the European Economic and Social Committee a report focusing, among other issues, on “the effects of the way in which foreign law is treated in the different jurisdictions and on the extent to which courts in the Member States apply foreign law in practice pursuant to this Regulation”, and on the effects of Article 28 (on the relationship of the Regulation with international conventions in force for individual Member States) “with respect to the Hague Convention of 4 May 1971 on the law applicable to traffic accidents”. The Commission was equally expected to report on the “situation in the field of the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to personality”.

Soon after the Regulation entered into force, three specific studies were carried out for this purpose, namely on road traffic accidents (2009), on privacy and rights relating to personality (2009) and on the application of foreign law (2011). Additional information concerning the practical experience with Rome II came, in particular, from an external study carried out in 2021 under the scientific coordination of the British Institute of International and Comparative Law.

The published report, which builds on these and other sources, consists of a general overview of the operation of the Regulation, followed by a focus on a specific areas, such as: (1) privacy, rights relating to personality, including defamation and SLAPP; (2) artificial intelligence; (3) financial market torts and prospectus liability; and (4) collective redress and cases involving multiple parties.

The Commission’s overall conclusion is that the Regulation “generally works well and is fit for purpose”. However, “several issues” exist that “merit further in-depth analysis with a view to assessing whether targeted legislative adjustments of Rome II are desirable and what options may exist to efficiently address them”, notably as concerns: (a) the current exclusion from the scope of the Regulation for privacy and personality rights, including defamation; (b) the application of the Regulation “in cases where the damage occurs simultaneously in many jurisdictions, leading to a possible application of multiple national laws”, such as cases of collective redress and torts committed online, including infringements of IP rights online, especially of copyright; and (c) torts causing purely economic losses, including financial market torts and prospectus liability.

With a view to assessing whether legislative change is needed, the Commission plans to “carry out further analysis in order to consider and potentially prepare a proposal to amend or recast the Regulation in accordance with the Better Regulation rules”, noting that “further analysis can also be carried out to assess the merits of other conceivable modifications or, in areas where the existing rules are fully appropriate, possible textual clarifications to facilitate their application”.

The report is accompanied by a Commission Staff Working Document (SWD(2025) 9 final). The latter provides, in particular, a more detailed analysis of the practical experience of the Regulation, chapter by chapter, a summary of the studies conducted for the purposes of the report, and a table summarizing the findings of the rulings of the Court of Justice concerning (or mentioning) the Regulation.