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Environmental Damage and the Rome II Regulation (Rom II - VO und Umweltschädigung – Ein Überblick)

This paper addresses Art. 7 of the recent Rome II regulation. This provision, being subject to the new regulation scheme of the EU on the law applicable to non-contractual obligations, takes an exceptional position within that regulation. Whereas the general rule of Art. 4 paragraph 1 declares the “law of the country in which the damage occurs” (Erfolgsort) applicable, Art. 7 provides for the possibility to base a claim “on the law of the country in which the event giving rise to the damage occurred” (Handlungsort). Thus the EU embodied the principle of ubiquity even though it generally deviates from this notion. The analysis of Art. 7 Rome II follows two main lines. Firstly, the scope of Rome II and the meaning of “non-contractual obligation arising out of environmental damage” are considered. This basically includes the concretion of the term “environmental damage” and the solution of “conflicts between conflict rules” i.e. of overlapping provisions within the Rome II regulation. Secondly, the applicable law is reviewed. It is dealt with questions regarding the legitimacy of the principle of ubiquity within Rome II as well as problems caused by the right of the harmed person to choose to base his or her claim on the law of the country in which the event giving rise to the damage occurred. It is argued that the construction of the similar German conflict of law rules enshrined in Art. 40 EGBGB is a proper guideline to deal with Art. 7 Rome II.