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  July 2004
 
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  Francisco Balsemão
  Chairman, EPC
  Chairman and CEO,
  Impresa S.G.P.S.
  Rua Ribeiro Sanches 65
  1200 Lisboa
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  Tel: +351 21 392 9782
  Fax: +351 21 392 9788

  Angela Mills Wade
  Executive Director
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  Belgium
  Tel: +322 231 1299

  Press Relations
  Heidi Lambert Communications
  heidilambert@tiscali.co.uk
  Tel:  +44 1245 476 265

PRESS FACT SHEET:

JURISDICTION AND APPLICABLE LAW

February 2004

LATEST DEVELOPMENTS:

The Two Romes
There have been some interesting developments in this area in February.

Ms Wallis has created a working document to help her in the production of her report. In this discussion paper she mentions the possibility of merging Rome I and II into one legal instrument to “reduce the complexity of the legal situation”. This suggestion has been met by concern by the EPC. With the proposals at different stages (no official decision on Rome I to date), merging the two would compromise the quality of the discussion and the outcome particularly as the Commission would like to see both Rome I and Rome II based on the “country of residence” principle – a principle strongly opposed by the EPC in favour of the principle of “country of origin” and “mutual recognition”.

Recent proposed amendments from the LIBE committee asking for the country of origin principle to be applied in cases of defamation (cases most pertinent to the media) were not accepted. . These amendments, which support the EPC’s case, may be re-tabled via the Legal Affairs Committee which will vote on amendments presented so far once the Wallis report is completed.

As part of the research for her report Ms Wallis is examining the real situation relating to defamation cases in the EU. She has asked media associations to provide examples of all recent defamation cases and if it can be proved that the majority of actions taken are not cross-border in their nature and do not involve the ‘small consumer’ she will consider removing defamation from the scope of the regulation.

Progress on this dossier is quite slow and it is as yet uncertain whether it will have completed first reading by the end of this Parliament.

Changes to both Rome I and II might affect law applicable to subscription contracts if they are made across borders.


The issues:

There are three key aspects of current EU legislative activity on jurisdiction see:

  • Brussels regulation (Rome I) on jurisdiction and the recognition and enforcement of judgements (for contractual agreements);
  • Revision of the Rome Convention (Rome II) on applicable law concerning non-contractual obligations (e.g. libel and defamation);
  • Hague Convention on jurisdiction in civil and commercial matters and enforcement of judgements (global application).

See the Commission website
http://europa.eu.int/information_society/topics/telecoms/international/tabd/TABD%20Progress%20Report.pdf


1. Brussels Regulation:

http://europa.eu.int/scadplus/leg/en/lvb/l33054.htm

This Regulation came into force on 1 March 2023 and is about Commercial Contracts and where (i.e. in which country) you can sue. For example, if you've bought a computer from a supplier based in Finland and it never arrives you can sue the company in a UK court (country of the consumer principle not country of origin). This makes life difficult for online companies who can be sued in all 15 countries they sell into.


2. Rome II (PROPOSAL FOR A COUNCIL REGULATION ON THE LAW APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS)

http://www.europa.eu.int/comm/justice_home/unit/civil/consultation/index_en.htm

The Commission published a working document (consultation procedure) that concerns which national laws should be applied in disputes. For instance, in terms of defamation cases the current Commission approach would permit a French citizen to claim he had been defamed by, or had his privacy invaded by an article published in a UK-based newspaper (if online so much the better). He then would be able to sue where he feels the damage has been caused – in this case probably in France, and according to French law where in the case of privacy, laws are much more strict than in the UK.

Actually under current law publishers can already be sued abroad but they can limit their exposure to damages due to small numbers of people reading the hard copies of their papers outside the country of origin and main publication. The Internet makes the potential for "damage" a lot wider.

There have been ongoing internal disagreements within the Commission about whether to exclude the existing areas covered by directives such as the TV Without Frontiers and E-commerce directives which apply the principle of Country of Origin).
The consultation period is now over and the EPC’s position has been in line with the majority of respondents in making the point that this is an unnecessary and disproportionate regulation. It would, says the EPC, make life very difficult for publishers without delivering any of the consumer protection it seeks to provide.

In its consultation paper, the EPC has highlighted the damaging and contradictory situation which may result from the application of different rules online and off-line for defamation and violations of privacy. It also criticises the Commission for failing to present any studies to demonstrate the need for such a regulation. The proposal, according to the EPC, neither eliminates nor reduces the problems raised by a potential application of various differing national laws on the same economic activity.

The EPC is calling on the Commission to produce concrete research into existing cases and the potential impact before proceeding.


3. The Hague Convention (also in draft form)

http://www.hcch.net/e/workprog/jdgm.html
http://www.europa.eu.int/comm/justice_home/unit/civil_en.htm 

This is Rome II and Brussels writ large. It tries to establish international principles on jurisdiction and applicable law. The current draft includes torts, therefore in theory allowing the most oppressive regimes in the world who sign up to sue publishers for any critical story. In April a meeting decided to continue working on the convention. A first draft is expected early 2003.


Key players:

• Commissioner Vittorino
• Diana Wallis, MEP has voiced her concern about lack of transparency in the proceedings relating to Rome II. She wishes to have an open hearing with all interested parties in the European Parliament.

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For further information FOR JOURNALISTS on this or other topics, please contact Heidi Lambert Communications on Tel: +44 1245 476 265 or heidilambert@tiscali.co.uk.

FOR EPC MEMBERS AND GENERAL ENQUIRIES please contact Angela Mills on Tel: +322 231 1299 or +44 7785 32 7878.