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OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 6 September 2011 (1)

Case C-�412/10

Deo Antoine Homawoo

GMF Assurances SA

(Reference for a preliminary ruling from the High Court of Justice (England and Wales), Queen’s Bench Division (United Kingdom))

(Judicial cooperation in civil matters – Law applicable to non-�contractual obligations (‘Rome II’) – Scope ratione temporis)

1. By the present reference for a preliminary ruling, the High Court of Justice (England and Wales), Queen’s Bench Division (United Kingdom) raises the first question to be asked about the interpretation of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (2) (‘Rome II’). The question referred concerns the scope of that regulation ratione temporis.

I – Legal context

A – Rome II

2. Recitals 6, 13, 14 and 16 in the preamble to Rome II read as follows:

‘(6) The proper functioning of the internal market creates a need, in order to improve the predictability of the outcome of litigation, certainty as to the law applicable and the free movement of judgments, for the conflict-of-law rules in the Member States to designate the same national law irrespective of the country of the court in which an action is brought.

…

(13) Uniform rules applied irrespective of the law they designate may avert the risk of distortions of competition between Community litigants.

(14) The requirement of legal certainty and the need to do justice in individual cases are essential elements of an area of justice. ...

…

(16) Uniform rules should enhance the foreseeability of court decisions and ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage. ...’

3. In so far as concerns the applicable law, Article 4(1) of Rome II lays down that ‘unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur’.

4. Article 15 of Rome II defines the scope of the law thus designated. That article is worded as follows:

‘The law applicable to non-contractual obligations under this Regulation shall govern in particular:

(a) the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;

(b) the grounds for exemption from liability, any limitation of liability and any division of liability;

…’

5. Article 28(1) of Rome II clarifies that the regulation ‘shall not prejudice the application of international conventions to which one or more Member States are parties at the time when [the] Regulation is adopted and which lay down conflict-of-law rules relating to non-contractual obligations’.

6. Article 29 states, inter alia, that ‘by 11 July 2008, Member States shall notify the Commission of the conventions referred to in Article 28(1). ... The Commission shall publish in the Official Journal of the European Union within six months of receipt … a list of the conventions ...’.

7. Article 30 lays down a review clause, which provides that the Commission must submit a report on the application of Rome II ‘not later than 20 August 2011’.

8. Articles 31 and 32 of Rome II are worded as follows:

‘Article 31 – Application in time

This Regulation shall apply to events giving rise to damage which occur after its entry into force.

Article 32 – Date of application

This Regulation shall apply from 11 January 2009, except for Article 29, which shall apply from 11 July 2008.’

B – National law

9. The United Kingdom’s conflict-of-law rules for tort, prior to the application of Rome II, are contained in Part III of the Private International Law (Miscellaneous Provisions) Act 1995. The courts of the United Kingdom have interpreted this 1995 Act as specifying the law applicable to the substance of a dispute. Matters which are characterised by English law as procedural are governed by English law as the lex fori.

10. As regards the assessment of damages, the case-law, in particular the decision of the House of Lords in Harding v Wealands, (3) establishes that:

(a) the law applicable to the substance of the dispute will determine what ‘heads’ of loss are recoverable as damages, that is to say, the categories of loss which may, in principle, be the subject of an award of damages;

(b) the assessment of damages in respect of each eligible ‘head’ of loss is a procedural matter, governed by English law as the lex fori.

II – The dispute in the main proceedings and the questions referred for a preliminary ruling

11. On 29 August 2007, Mr Homawoo was struck by a motor vehicle while crossing a road in France. He sustained injury in the collision. The vehicle was registered in France and was being driven at the time of the accident by a person insured by GMF Assurances SA (‘GMF’).

12. On 8 January 2009, the applicant in the main proceedings, who is domiciled in the United Kingdom, brought proceedings for personal injury and indirect damages before the High Court against, among others, GMF, in accordance with Article 9(1)(b) and Article 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (4). While GMF does not dispute its liability to compensate the applicant in the main proceedings, the parties are in dispute as to the determination of the law which is applicable to the assessment of his damages.

13. The accident occurred on 29 August 2007 and proceedings were commenced before the High Court on 8 January 2009. As far as the applicant in the main proceedings is concerned, since those two dates are prior to 11 January 2009, the date referred to in Article 32 of Rome II, that regulation is not applicable in the case in the main proceedings and the assessment of his damages should be governed by English law as the lex fori. In the view of GMF, Rome II entered into force, in accordance with Article 254(1) EC, (5) on the twentieth day following its publication in the Official Journal of the European Union. (6) In the case in the main proceedings, however, the event giving rise to damage occurred after that date. Consequently, under Articles 4 and 15(c) of Rome II, the assessment of the applicant’s damages must, in its view, be carried out in accordance with French law.

14. In view of these divergent interpretations as to when Rome II entered into force, the High Court of Justice (England and Wales), Queen’s Bench Division, decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Are Articles 31 and 32 of [Rome II], read in conjunction with Article 297 [TFEU], (7) to be interpreted as requiring a national court to apply Rome II, and in particular Article 15(c) thereof, in a case where the event giving rise to the damage occurred on 29 August 2007?

2. Is the answer to Question 1 affected by either of the following facts:

(i) that the proceedings seeking compensation for damage were commenced on 8 January 2009;

(ii) that the national court had not made any determination of the applicable law before 11 January 2009?’

III – Procedure before the Court of Justice

15. The applicant in the main proceedings, GMF, the United Kingdom and Greek Governments and the European Commission have lodged written observations with the Court.

16. The applicant in the main proceedings, GMF and the Commission presented oral submissions at the hearing on 14 July 2011.

IV – Legal analysis

17. The present reference for a preliminary ruling concerns the scope of Rome II ratione temporis, which is determined by Articles 31 and 32 thereof. Article 31 states simply that Rome II is to apply to events giving rise to damage which occur ‘after its entry into force’. Article 32 adds that the regulation ‘shall apply from 11 January 2009, except for Article 29, which shall apply from 11 July 2008’.

18. There are two opposing views in the main proceedings. The first, supported by GMF and the Greek Government, is that Article 31 sets no date for the entry into force of Rome II, which must therefore be determined, in accordance with Article 254(1) EC, as being twenty days after its publication. Under this construction, the regulation thus applies to events giving rise to damage which occur after 20 August 2007. According to the second view, espoused by the applicant in the main proceedings, the United Kingdom Government and the Commission, the mention in Article 31 of entry into force is in fact a reference to the date of application laid down in the following article, that is to say, 11 January 2009, with Article 29 alone applying from 11 July 2008. Rome II, on this construction, thus applies to events giving rise to damage which occur after 11 January 2009.

19. A few preliminary observations will permit me to outline the more common occurrences in European Union regulations of the distinction between ‘entry into force’ and ‘date of application’ (A). I shall then address the question whether the reference to entry into force and to the date of application made by the legislature in the present regulation is such as to create a distinction of the kind that most commonly occurs. In order to answer that question, I intend, after examining the preparatory work for Rome II (B), to consider the precise wording of Articles 31 and 32 of the regulation (C), its general structure (D) and its objectives (E).

A – Preliminary observations on the distinction between ‘entry into force’ and ‘date of application’

20. Some European Union regulations do not apply immediately on their entry into force. That is so, for example, in the case of the regulations which created the first common market organisations. In those regulations, the purpose of the distinction between ‘entry into force’ and ‘date of application’ was to enable the new bodies provided for in those regulations – for example management committees – to be set up immediately and to enable the Commission to adopt implementing measures on which those new bodies had to be consulted. (8)

21. In the area of judicial cooperation in civil matters, which is the subject of Rome II, the European Union legislature has again drawn a distinction between the entry into force and the application of a number of regulations. The first of these was the regulation on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, (9) which entered into force on 1 July 2001 but became applicable only on 1 January 2004, with the exception of certain articles that applied from the date of entry into force, namely 1 July 2001. (10) The articles in question required the Member States to provide the Commission with certain information specified in the regulation. The Commission, assisted by a committee, was then to draw up and update a manual containing that information. (11) The lapse of time between the date of entry into force and the date of application was necessary to enable the Member States, and subsequently the Commission, to carry out certain tasks prior to application of the regulation.

22. The legislature has drawn a distinction between the date of entry into force and the date of application in the regulations subsequently enacted in the same area, with varying time lapses between the two dates, thereby enabling the Member States to make any necessary changes to their national laws before communicating to the Commission the requisite information specified in the instrument in question. Such information is then made publicly available, generally by way of publication in the Official Journal of the European Union. (12) In the case of Rome II, however, interpreting Article 31 as fixing the date of the regulation’s entry into force as 20 August 2007, whereas its date of application is 11 January 2011 (except for Article 29, which applies from 11 July 2008) would have different and unusual consequences.

23. Indeed, application of Rome II from 11 January 2009 to events giving rise to damage which occurred after 20 August 2007 would leave a period of almost 17 months during which the events giving rise to damage should be subject to the legal rules instituted by Rome II without its actually being possible for that regulation to be applied to them. The application of a regulation in such a way, whereby the legal rules laid down in Rome II would in some sense be applicable but yet could not be applied, has no equivalent in the area of judicial cooperation in civil matters. (13) In particular, the counterpart to Rome II, which lays down conflict-of-law rules in contractual matters and yet draws a distinction between its dates of entry into force and of application, states that it applies to contracts concluded after its date of application. (14)

24. Given the unusual consequences of a potential distinction between ‘entry into force’ in Article 31 and ‘date of application’ in Article 32, inasmuch as this would lead to the application of Rome II from 11 January 2009 onwards to events giving rise to damage which occurred after 20 August 2007, it is appropriate to analyse the preparatory work for the regulation in order to establish whether this reveals any intention on the part of the legislature to achieve such effects.

B – The preparatory work for Rome II

25. The Commission presented a proposal for a regulation on the law applicable to non-contractual obligations on 22 July 2003. (15) It contained a single provision on the regulation’s application in time. Entitled ‘Entry into force and application in time’, this article was worded as follows: ‘This Regulation shall enter into force on 1 January 2005. It shall apply to non-contractual obligations arising out of acts occurring after its entry into force’. (16)

26. During the subsequent negotiations within the Council of the European Union, the Swedish delegation pointed out that certain amendments to its own law were necessary if it was to apply this regulation, and that it would require at least two years to make those amendments. For this reason it suggested replacing the words ‘shall enter into force on 1 January 2005’ with ‘shall enter into force at the latest two years following its adoption’. (17) That suggestion was supported by the German delegation. (18) The Netherlands delegation also suggested leaving a sufficient lapse of time to enable the necessary national provisions to be adopted before the entry into force of the regulation. (19) The observations made by those delegations thus reveal that they wished to defer the entry into force of Rome II.

27. In parallel, a suggestion was made on 22 December 2005 (20) to draft two separate articles, the first entitled ‘Application in time’ and the second ‘Entry into force’, and to split the existing wording, slightly amended, into two articles, worded as follows:

‘Article 27 – Application in time. This Regulation shall apply to damage or harm occurring after the entry into force of this Regulation.

Article 27a – Entry into force. This Regulation shall enter into force on …’

28. That suggestion was not taken up in the Commission’s amended proposal, presented on 21 February 2006. (21) The date ‘1 January 2005’ was deleted, but the rest of the wording remained the same. The article governing the regulation’s application in time consequently provided as follows: ‘This Regulation shall enter into force on ... It shall apply to non-contractual obligations arising out of acts occurring after its entry into force.’ (22)

29. The suggestion to express the application in time of Rome II in two separate articles was made afresh on 16 March 2006, (23) with slightly different drafting of the two articles. The first stated that ‘this Regulation shall apply to events giving rise to damage ... occurring after the entry into force of this Regulation’. (24) In the second article, the following wording was proposed: Rome II ‘shall enter into force [9 months after its adoption]’ and ‘shall apply from [15 months after its adoption,] except for [the present Article 29], which shall apply 9 months after the adoption of the Regulation’. (25) Rome II was thus supposed to enter into force 9 months after its adoption, on the same day as the present Article 29 became applicable.

30. It is unlikely that the legislature was at that point fully aware of the fact that, through this change in the wording, the two articles, read together, in fact made Rome II applicable to events giving rise to damage occurring after the date of application of Article 29, which coincided with the entry into force of the regulation itself. This is demonstrated by the fact that no such interpretation of the scope, ratione temporis, of Rome II, according to which the regulation, in its definitive version, would be applicable from 11 January 2009 to events giving rise to damage occurring after 11 July 2008, has been put forward by any of the parties to the main proceedings. In using the words ‘entry into force’ in the first of those two articles, the legislature was in fact merely adopting the formula of words used in earlier versions, without realising the fundamental change that would result.

31. A working paper dated 3 May 2006 reveals that, following a meeting held on 27 and 28 March 2006, several delegations expressed the view that the distinction between the date of entry into force and the date of application was confusing. (26) Probably in an endeavour to simplify matters, a later version, dated 10 April 2006, (27) dispensed with the first phrase of that second article. The second article, still entitled ‘Entry into force’, stated simply that ‘[the] Regulation shall apply from [18 months after its adoption], except for [the current Article 29], which shall apply [12 months after its adoption]’. (28) In a subsequent version, dated 21 April 2006, (29) the second article took its definitive form, with its title amended to ‘Date of application’.

32. Consequently, it seems that these successive amendments should be regarded as changes in the form, rather than in the substance, of Rome II. The legislature’s intention thus appears to have remained, throughout the long process of the regulation’s adoption, that of linking the notion of entry into force in Article 31 with the date of application in Article 32 of Rome II, without concerning itself with the difficulty arising from the existence of two dates of application.

33. That interpretation is confirmed by the fact that there was almost no further discussion of the point during the negotiations which led up to the adoption of Rome II on 11 July 2007. It is clear from the documents since made public that it was only at the meeting of 27 and 28 March 2006 that there was any discussion of the confusion arising from the distinction between the date of application and the date of entry into force. (30) The Presidency confirmed on that occasion that the distinction was due to the tasks which the Member States had to carry out before Rome II could apply, and referred to the notification of conventions provided for by the present Article 29. The Presidency thus merely justified the existence of an earlier date of application for one of the regulation’s articles. In no way did it concern itself with a still earlier date of entry into force for the regulation, or the regulation’s application to facts giving rise to damage which occurred before the date of application, 11 January 2009.

34. It is thus evident from the preparatory work leading to the adoption of Articles 31 and 32 of Rome II that the legislature manifested no clear intention of applying that regulation to facts giving rise to damage that occurred before the date of application, 11 January 2009. Consequently, if the provisions in issue are to be interpreted in this way, it will be necessary to check carefully whether this is supported by a literal interpretation of the text resulting from the preparatory work, and by an examination of the general structure and objectives of Rome II.

C – The precise wording of Articles 31 and 32

35. Article 32 of Rome II states ‘this Regulation shall apply from 11 January 2009, except for Article 29, which shall apply from 11 July 2008’. Article 31 provides that Rome II applies to events giving rise to damage which occur ‘after its entry into force’.

36. As far as GMF is concerned, the concepts of entry into force and of application and the difference between them are matters well known to the European Union legislature. They are, it is submitted, explained in the Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of legislation within the Community institutions. (31) I must, at the outset, put that assertion into context. Paragraph 20.10 et seq. of the Guide do, admittedly, contemplate the possibility of the ‘deferred application of regulations’, and expressly state that ‘a distinction is sometimes drawn between the entry into force of a regulation and the application of the arrangements introduced by it, which is deferred’. The difference between the two concepts is not, however, explained. Paragraph 20.10 simply refers to regulations which set up common market organisations and explains the purpose of a distinction between the date of entry into force and the date of application for those regulations. Such a purpose, pursued in the specific context of regulations relating to specific sectors, would not be the same as that pursued by Rome II in setting the date of entry into force mentioned in Article 31 at 20 August 2007, while the regulation applies from 11 January 2009 onwards. Consequently, all that may be gleaned from the Joint Practical Guide of the European Parliament, the Council and the Commission is an illustration of the distinction between the entry into force and the application of a legal instrument which is made with a specific purpose in mind. That particular illustration is not such as to support a general assertion that the difference between the concepts of entry into force and of application is well known to the European Union legislature.

37. Moreover, and more importantly, even though Article 31 refers specifically to ‘entry into force’ and Article 32 to ‘date of application’, a combined reading of the provisions of those articles is called for, since the first is entitled ‘Application in time’ and the second ‘Date of application’. It is clear from such a reading that, in Rome II, the concepts of entry into force and of application are used in an imprecise manner and that one is confused with the other. Consequently, the argument advanced by GMF and the Greek Government, to the effect that Article 31 should be supplemented with the last sentence of Article 254(1) EC, which provides that ‘[regulations] shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication’, cannot be endorsed.

38. The absence of any clear distinction between the two concepts, and the confusion between them in Rome II, is confirmed by the fact that, in a great majority of the other instruments adopted in the area of judicial cooperation in civil matters, articles entitled ‘Entry into force’ contain the form of words ‘shall apply’. (32)

39. Furthermore, this absence of any clear distinction between the two concepts is also confirmed by the variations in the translations of Rome II. In the Spanish, Dutch and Romanian versions, Article 32 is entitled ‘Entry into force’, (33) rather than ‘Date of application’. In those three versions, there can be no doubt that the regulation’s entry into force must be on 11 January 2009, with the sole exception of Article 29, which entered into force on 11 July 2008. The Court has confirmed in clear terms that ‘to discount two language versions … would run counter to the Court’s settled case-law to the effect that the need for a uniform interpretation of Community regulations makes it impossible for the text of a provision to be considered in isolation but requires, on the contrary, that it should be interpreted and applied in the light of the versions existing in the other official languages (see, in particular, Case 9/79 Koschniske [1979] ECR 2717, paragraph 6). ... [A]ll the language versions must, in principle, be recognised as having the same weight …’. (34) What is true for two different language versions must, a fortiori, be true for three.

D – The general structure of Rome II

40. Moving on now to consider the general structure of Rome II, it is important to start with the fact that the provisions of the regulation preceding Articles 31 and 32 contain nothing which concerns the regulation’s application to events giving rise to damage occurring before 11 January 2009. An analysis of those provisions simply makes it possible to understand the legislature’s choice to defer application of the regulation until 11 January 2009 – with the exception of Article 29, applicable from 11 July 2008 – even though the regulation was adopted on 11 July 2007.

41. As GMF itself rightly explained in its written observations and during the hearing, the reason which led the legislature to stipulate two dates of application stems from Articles 28 and 29 of Rome II. Before the regulation could apply, it was necessary in fact for information to be made available concerning any international conventions laying down conflict-of-law rules relating to non-contractual obligations, binding one or more Member States. That consequence follows from Article 28, according to which the regulation is not to prejudice the application of such international conventions.

42. Article 29 provides that, by 11 July 2008, the Member States must have notified the Commission of those conventions. The Commission is required to publish a list of the conventions in the Official Journal of the European Union within six months of receipt. Since the conventions would, it might be expected, all be listed and published by 11 January 2009 at the latest, Rome II is for that reason applicable from that date onwards.

43. According to GMF, Rome II necessarily had already to be in force when Article 29 became applicable, on 11 July 2008. From this it draws the conclusion that Rome II applies to events giving rise to damage which occurred before 11 January 2009. That claim cannot, however, be upheld. It is clear from Article 32 that it was necessary for the application of Article 29 to be dissociated from that of the regulation’s other provisions. If the entry into force of Rome II on 11 July 2008 meant that the regulation applied to events giving rise to damage occurring after that date, such events would be subject to the provisions of Rome II from 11 July 2008 onwards even though the application of those very provisions would be deferred. Such a situation would be tantamount to making such provisions applicable before the date expressly laid down for that purpose by the legislature, namely 11 January 2009.

44. Moreover, as the Commission has pointed out, taking the Brussels IIa Regulation as an example, when the European Union legislature sets, in the area of judicial cooperation in civil matters, the application of certain articles of a regulation in such a way that it coincides with that regulation’s entry into force, (35) the effectiveness of those articles flows from the fact that an earlier date of application has been set, and not from the entry into force of the regulation as such. Consequently, the distinction between the very concepts of entry into force and of application becomes obscured.

45. An analysis of the provisions preceding Articles 31 and 32 reveals clearly the European Union legislature’s intention to defer application of Rome II, so as first to enable the publication of the international conventions laying down conflict-of-law rules relating to non-contractual obligations binding one or more Member States. By contrast, there is no suggestion that the regulation might apply to facts giving rise to damage occurring before 11 January 2009, or of any distinction between the date of entry into force mentioned in Article 31 and the date of application stated in Article 32.

46. That finding cannot be called into question by the presence of a review clause, contained in Article 30 of Rome II, which provides for the submission of a report on the application of the regulation ‘not later than 20 August 2011’. The stipulation of that deadline cannot be intended to imply that Rome II entered into force four years earlier, that is to say, on 20 August 2007. Indeed, there is no mention in that provision of the date of entry into force. Moreover, the last draft of the regulation in question, approved by the Conciliation Committee of 22 June 2007, specifies no date at all and simply leaves a blank to be completed. (36) The same is true of the last document prepared by the European Parliament and the Council on 11 July 2007, the day on which the regulation was adopted. (37) The precise date of ‘20 August 2011’ is thus a later addition, and there is no corroborating evidence to link that date to the reference to entry into force in Article 31.

E – The objectives of Rome II

47. In light of recitals 6, 13, 14 and 16 in the preamble to Rome II, the objectives of that regulation are, in particular, to improve the predictability of the outcome of litigation and legal certainty and to avert the risk of distortions of competition which may arise from the application of rules that are not uniform.

48. The fact of applying Rome II from 11 January 2009 to events giving rise to damage occurring after 20 August 2007 would create uncertainty as to the actual moment of application of that regulation. The fact that such uncertainty exists is evident from the observations submitted by the parties in relation to such a hypothesis. The applicant in the main proceedings takes the view that the application of Rome II should be determined by reference to the commencement of legal proceedings on or after 11 January 2009. The Greek Government, invoking the principle ‘jura novit curia’, considers that the court seised must apply to the matter the law in force at the time at which it gives its ruling: from 11 January 2009 onwards, Rome II could, consequently, apply at any stage of pending proceedings, from the bringing of the action to the handing down of final judgment. The Commission confirms this uncertainty, asserting, for its part, that if the application of Rome II does extend to earlier events, three criteria could be applied: the introduction of proceedings, the determination by the court of the applicable law, and the handing down of judgment.

49. From all of the foregoing, it emerges clearly that if Rome II were to apply to events giving rise to damage occurring after 20 August 2007, it would be impossible to establish with certainty in all the Member States the moment of application of the regulation, from 11 January 2009 onwards, and this would necessarily lead to divergent solutions within the European Union.

50. With a view to the uniform application of Rome II in all the Member States, in conformity with the requirements laid down in recitals 6, 13, 14 and 16 in the preamble to that regulation, it is therefore necessary that Rome II should apply to events giving rise to damage that occur after its date of application.

51. In the event that the Court should take a different approach, preferring to adopt one of the criteria put forward by the parties – namely the introduction of proceedings, the determination by the court of the applicable law, or the handing down of final judgment, which would need to be clarified for purposes of the application of Rome II to proceedings already pending – so as to be able to determine with more precision the application of Rome II to earlier facts, I would mention one or two points that demonstrate that none of these criteria is capable of ensuring a satisfactory result in line with the regulation’s objectives.

52. First of all, in the case of events giving rise to damage that occur between 20 August 2007 and 10 January 2009, the applicable law would differ according to whether proceedings were initiated, the applicable law was determined or the final judgment was handed down (depending on the criterion chosen) before or after 11 January 2009. Different conflict-of-law rules would thus apply to harmful events occurring during the same span of time. A situation of this kind would be particularly problematic if several claimants were injured in the same accident. Their respective actions might be governed by different laws, depending on whether proceedings were initiated, the applicable law was determined or the final judgment was handed down before or after 11 January 2009. Moreover, the national court pointedly reminds us that the institution of legal proceedings and the setting-down of a case for trial can both be used as a tactical manoeuvre by the parties. Thus, as regards the period between 20 August 2007 and 10 January 2009, to choose one or other of the criteria would have undermined the objectives of the regulation.

53. Secondly, beyond that transitional period, were the Court to opt for one or other of those criteria and the application of Rome II were thus to become a function of legal proceedings, as the United Kingdom Government has indicated in its written observations, there would be nothing to stop the previous law from continuing to apply to cases settled by the parties without having recourse to legal proceedings, given that no court is seised of their dispute. Frequently, parties will seek to reach an agreement before having recourse to the law. That is what the national court and the United Kingdom Government say, on the view that the rules of civil procedure in England and Wales encourage this type of approach, which enables the costs of resolving disputes to be minimised and generally contributes to the sound administration of justice. (38) The prior private international law could thus govern the situation of the parties until such time as a court is involved. However, it would be contrary to the objectives of Rome II if parties who opt for mediation had to fear a possible change of the applicable law if a court were subsequently to be seised of the matter.

54. Consequently, after considering the precise wording of Articles 31 and 32 of Rome II, and the general structure or the objectives thereof, it is abundantly clear that that regulation must be interpreted as being applicable to events giving rise to damage occurring on or after 11 January 2009. There is, therefore, no need to answer the second question referred by the national court, which concerns the effect that the commencement of legal proceedings or the determination of the applicable law might have upon the application of Rome II.

V – Conclusion

55. In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the High Court of Justice (England and Wales), Queen’s Bench Division, as follows:

(1) Articles 31 and 32 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), read in conjunction with Article 254 EC, must be interpreted as meaning that a national court must not apply that regulation, and in particular Article 15(c) thereof, in a case in which the event giving rise to the damage occurred on 29 August 2007. Regulation No 864/2007 applies only to events giving rise to damage which occurred on, or after, 11 January 2009.

(2) In view of the answer to the first question referred, there is no need to answer the second question referred.

1 – Original language: French.

2 – OJ 2007 L 199, p. 40.

3 – [2007] 2 AC 1, [2006] UKHL 32.

4 – OJ 2001 L 12, p. 1. The provisions are as follows: ‘An insurer domiciled in a Member State may be sued … in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the plaintiff is domiciled’ (Article 9(1)(b)); ‘Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted’ (Article 11(2)).

5 – Article 254(1) EC provides that ‘regulations, directives and decisions adopted in accordance with the procedure referred to in Article 251 shall be … published in the Official Journal of the European [Union]. They shall enter into force on the date specified in them or, in the absence thereof, on the twentieth day following that of their publication.’

6 – Rome II was published in the Official Journal of the European Union on 31 July 2007. The twentieth day following its publication was thus 20 August 2007.

7 – As Rome II was published before 1 December 2009, that is to say, prior to the entry into force of the Lisbon Treaty, the interpretation sought by the national court in fact concerns Article 254 EC, which was not amended by the third subparagraph of Article 297(1) TFEU in so far as concerns the periods of time specified.

8 – See, inter alia, Council Regulations (EC) No 2100/94 of 27 July 1994 on Community plant variety rights ( OJ 1994 L 227, p. 1) and (EEC) No 3330/91 of 7 November 1991 on the statistics relating to the trading of goods between Member States (OJ 1991 L 316, p. 1).

9 – Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ 2001 L 174, p. 1).

10 – See Article 24 of the regulation

11 – See Article 19 of the regulation.

12 – See Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1), Article 72; Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ 2004 L 143, p. 15), Article 33; Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure (OJ 2006 L 399, p. 1), Article 33; Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (OJ 2007 L 199, p. 1), Article 29; Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79), Article 26; Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6) (‘Rome I’), Article 29; Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ 2009 L 7, p. 1), Article 76; Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ 2010 L 343, p. 10), Article 21.

13 – Regulation No 805/2004 states that it applies ‘to judgments given, to court settlements approved or concluded and to documents formally drawn up or registered as authentic instruments after [its] entry into force’ (Article 26). However, as the Commission points out in its written observations, by that provision, the legislature merely defines the judgments, settlements and authentic instruments capable of being certified as a European enforcement order and it has no bearing on the scope, ratione temporis, of that regulation, which lays down procedural rules.

14 – Rome I, Article 28.

15 – COM(2003) 427 final.

16 – Article 27.

17 – Document 9009/04 ADD 8 of 18 May 2004, JUSTCIV 71 CODEC 645, p. 34.

18 – Document 9009/04 ADD 11 of 24 May 2004 (07.06) (original German), JUSTCIV 71 CODEC 645, p. 19.

19 – Document 9009/04 ADD 16 of 28 May 2004, JUSTCIV 71 CODEC 645, p. 6.

20 – Document 16027/05 of 22 December 2005, JUSTCIV 245 CODEC 1218, p. 22.

21 – COM(2006) 83 final.

22 – Article 27.

23 – Document 7432/06 of 16 March 2006, JUSTCIV 62 CODEC 247, p. 20.

24 – Article 27.

25 – Article 27a.

26 – Document 7709/06 of 3 May 2006, JUSTCIV 79 CODEC 277, p. 6.

27 – Document 7929/06 of 10 April 2006, JUSTCIV 85 CODEC 296, p. 21.

28 – Article 27a.

29 – Document 8417/06 of 21 April 2006, JUSTCIV 104 CODEC 350, p. 21.

30 – Document 7709/06 of 3 May 2006.

31 – Official Publications Office of the European Communities, Luxembourg, 2003.

32 – Regulation No 1206/2001 (Article 24); Regulation No 2201/2003 (Article 72); Regulation No 805/2004 (Article 33); Regulation No 1896/2006 (Article 33); Regulation No 861/2007 (Article 29); Regulation No 1393/2007 (Article 26); Regulation No 4/2009 (Article 76). In these instruments, confusion is avoided in that the legislature states precisely the date of entry into force and the date of application, either by mentioning a particular date or by express reference to publication in the Official Journal of the European Union.

33 – Article 32 is given the following titles: in the Spanish version, ‘Entrada en vigor’; in the Dutch version, ‘Inwerkingtreding’; in the Romanian version, ‘Data intrării în vigoare’.

34 – Case C-296/95 EMU Tabac and Others [1998] ECR I-�1605, paragraph 36.

35 – See Regulations No 1206/2001, No 2201/2003 and No 805/2004.

36 – Document PE-�CONS 3619/07 of 22 June 2007, JUSTCIV 140 CODEC 528, p. 31.

37 – Document PE-�CONS 3619/3/07 REV 3 of 11 July 2007, JUSTCIV 140 CODEC 528, p. 31.

38 – The national court refers to the Pre-action Protocol for Personal Injury Claims, which appears in the ‘Pre-Action Protocols’ section of the Civil Procedure Rules.