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 issues the appliance of Article 16 Rome II’s lois de police aka lois d’utility immédiate aka overriding obligatory provisions.
A declare is issued for compensation submitted by non-public people, who’re Bulgarian nationals, in accordance with obligatory insurance coverage in opposition to civil legal responsibility in respect of using motor automobiles, in opposition to an insurance coverage firm for non-material injury attributable to the loss of life of their daughter in a street visitors accident in Germany.
The core concern to find out by the CJEU is the idea of overriding obligatory provisions in Article 16 Rome II and particularly the willpower of the factors for classifying guidelines safeguarding particular person rights and freedoms as ‘overriding obligatory 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 could be no query of utility 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 details in Lazar.
Opposite to German regulation (28), Bulgarian regulation (lex fori) (29) offers that compensation for non-material injury is set by the courtroom giving judgment on the premise of truthful standards. That courtroom factors out that, underneath Bulgarian regulation, compensation is payable for all psychological ache and struggling endured by mother and father on the loss of life of their baby because of an unlawfully and culpably brought on street visitors accident. It isn’t vital for the hurt to have resulted not directly in pathological injury to the well being of the sufferer.
(32) The mere indisputable fact that, by making use of the lex fori, there can be a unique end result with regard to the quantity of compensation from that which might have been reached by making use of the lex causae just isn’t ample to conclude that the Bulgarian provision at concern could also be categorized as an ‘overriding obligatory provision’ throughout the which means of Article 16 of the Rome II Regulation, offered, the AG provides, that the appliance of the lex causae is appropriate with issues of justice.
(36) Over and above CJEU Unamar, the Courtroom additionally in Da Silva Martins explored the idea and the factors. (42) ff the AG remembers the overall ideas, and (56) he factors to recital 32 Rome II’s reference to ‘‘issues 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 subject of tort regulation, the foundations {that a} Member State establishes in an effort to defend a class of individuals who’ve sustained injury, by modifying, particularly, the burden of proof or by establishing a minimal threshold for compensation, might have the principal goal to revive the steadiness between the competing pursuits of personal events. Not directly, they may due to this fact additionally contribute to safeguarding the social and financial order of the Member State by decreasing the impression of accidents on public assets.
On the premise of CJEU authority as outlined, the AG concludes that the case at concern might completely result in the courtroom seised making use of Bulgarian regulation 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 regulation designated pursuant to Article 4 [Rome II].
opinion which I hope shall be adopted by the Courtroom.
Geert.
EU Non-public Worldwide Regulation, 4th ed. 2024, 4.87 ff.
