CYIL vol. 14 (2023)

MARIANNA NOVOTNÁ CYIL 14 (2023) excludes specific areas from its application, such as revenue, customs, administrative matters, or the liability of the State for acts and omissions in the exercise of State authority ( acta iure imperii ). 12 The prerequisites for the application of the Rome II Regulation can be therefore outlined as follows: (a) conflict of laws The substantive scope of the Rome II Regulation is limited to situations involving a conflict of laws. A conflict of laws occurs when the international nature of one or more elements of a legal relationship leads to its interconnection with several legal systems. This conflict typically arises when parties involved in a non-contractual obligation have different habitual residences or when a tort occurs in a jurisdiction other than the parties’ habitual residence. It is important to note that the Rome II Regulation applies not only to conflicts of laws within Member States, but also to conflicts between any other laws when a court of a Member State determines the applicable law for non-contractual obligations. The Rome II Regulation does not define precisely which relationships fall within the scope of civil and commercial matters, and it will therefore probably be necessary to adopt a wide interpretation to define them precisely and to include all relationships relating to civil and commercial matters in the ratione materiae , excluding only those obligations expressly excluded by the Regulation. According to Recital 7 of the Rome II Regulation, the substantive scope and provisions of the Regulation should be consistent with the Brussels I Regulation and with the instruments governing the law applicable to contractual obligations (in particular the Rome I Regulation). From the above, it can be concluded that the Brussels I bis, Rome I, and Rome II Regulations constitute a coherent set of instruments 14 covering the general area of private international law in matters of civil law obligations. 15 Therefore, the interpretation by the CJEU of one of the instruments could be applicable in a relevant manner for the purposes of the interpretation of the other instruments. For this reason, the case law defining the concept of “civil and commercial matters” for the purposes of the Brussels Convention and the Brussels I Regulation, as predecessors of the Brussels I bis Regulation, can also be applied for the purposes of the Rome II Regulation. Previous case law (in particular cases Netherlands v Rüffer , LTU v Eurocontrol , VKI v Henkel, Volker Sonntag 12 To the potential restrictions to Rome II Regulation’s application deriving from the very nature of environmental damage to common resources see GOMEZ, K., F. Environmental Liability (2016) European Encyclopedia of Private International Law , p. 11, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2787334. 13 Comp. KRAMER, X. E. The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: The European private international law tradition continued. Introductory observations, scope, system, and general rules (2008) 4 Nederlands Internationaal Privaatrecht , p. 417. 14 To the conflict of regulations between the Brussels I bis and Rome II regulations see MITCHELL, S. The Conflict of Regulations between the Brussels I(Bis) and Rome II Regulation: Europeanisation of the “ Fumus Boni Iuris Rule ” (17 June 2014), available at http://dx.doi.org/10.2139/ssrn.2455976. 15 Commission of the European Communities: Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-contractual Obligations (Rome II). Explanatory Memorandum, COM (2003) 427 final, p. 8. (b) civil and commercial matters (c) non-contractual obligations (d) a matter which is not excluded from the scope of the Regulation. 13

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