CYIL vol. 14 (2023)

CYIL 14 (2023) UNRAVELING THE ENIGMA OF THE INTERPLAY BETWEEN THE VIENNA CONVENTION … v Waidmann , and Lechouritou v Germany ) 16 has tended to favour a broader interpretation of the concept of a contractual relationship of civil and commercial law as regards the question of substantive scope. The notion of non-contractual obligations may give rise to some difficulties in view of the different civil law terminology and some substantive differences in the legal institutions in the various Member States. For the purposes of the Regulation, the term should therefore, be understood as an autonomous concept despite the absence of a definition in the Regulation and, as such, should be interpreted uniformly in all Member States as an autonomous concept of EU law. The category of non-contractual obligations typically includes tort law (law of damages) unjustified enrichment and benevolent intervention in another’s affairs ( negotiorum gestio ). However, the doctrinal categorisation of non-contractual obligations 17 into obligations in tort and other non-contractual obligations is of little relevance to the scope of the Regulation, since the Regulation covers explicitly, in addition to torts, the area of so called quasi-contracts or quasi delicts – unjustified enrichment, benevolent intervention in another’s affairs, and precontractual liability ( culpa in contrahendo) 18 – as “grey area” categories which are not covered by the Rome I Regulation. In relation to non-contractual obligations, for which the existence of damage in the traditional sense is not a prerequisite, it should be stressed that, for the purposes of the Rome II Regulation, the term “damage” refers to any consequence of a tort, unjustified enrichment, benevolent intervention in another’s affairs, or precontractual liability, i.e., also to consequences which, in other circumstances, could not be subsumed under the concept of damage by applying an interpretation of the national doctrines. The Regulation does not distinguish between subjective liability and strict liability in the context of the regulation of torts, with the result that the conflict-of-laws rules of the Regulation also apply to non-contractual obligations in which the element of fault is absent. 2.2 Core dilemmas explored After these preliminary reflections and more general introduction to the scope of Rome II, let us now ask the question, what, then, is the nature of the legal relationships governed by the Vienna Convention, and do these relationships fall within the scope of the Rome II Regulation as defined earlier? The legal framework of the Vienna Convention nuclear liability regulation is not primarily based on public liability of the State but on the private liability of the nuclear facility 16 CJEU 16 December 1980, Case Netherlands v Ruffer 814/79, [1980] ECR 3807; ECJ 14 October 1976, Case LTU v Eurocontrol 29/76, [1976] ECR 1541; CJEU 21 April 1993, Case Sonntag v Waidmann C-172/91, [1993] ECR I-1963, NIPR 1995, 395; CJEU 1 October 2002, Case VKI v Henkel C-16700, [2002] ECR I-8111, NIPR 2002, 261; CJEU 15 February 2007, Case Lechouritou v Germany C-292/05, [2007] ECR I-01519, NIPR 2007, 126. 17 See JANSEN, N. The Concept of Non-Contractual Obligations: Rethinking the Division of Tort, Unjustified Enrichment, and Contract Law (2010) 1 Journal of European Tort Law , pp. 16–47. 18 For a more detailed analysis see HAGE-CHAHINE, N. Culpa in Contrahendo in European Private International Law: Another Look at Article 12 of the Rome II Regulation (2012) 3 Northwestern Journal of International Law and Business , pp. 451–540, HENK, A. Die Haftung fur culpa in contrahendo im IPR und IZVR (Duncker and Humblot 2007), pp. 1–387.

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