Certainty for British Holidaymakers Making Claims for Accidents in the EU
The European Court of Justice (ECJ) has at last provided some much needed guidance on the scope of EC Regulation 864/2007, more commonly known as Rome II.
The Rome II Regulation is of significant practical importance to anyone that travels abroad and suffers the misfortune of being injured, because it governs the assessment of any compensation.
Prior to Rome II, the legal position was that if an English claimant was injured abroad, in certain circumstances they make their claim in the English courts.
The court would award compensation on the basis of English law, but only for loss recognised by the law of the country where the accident took place.
That position has now changed: Rome II has introduced more legal certainty in cross-border claims.
Amongst other things, Rome II states that while an injured party can bring a claim for compensation in the court in their home nation, the law to be applied is that of the country in which the “damage occurs” (in practical terms where the accident took place). So, for example, an English holidaymaker injured in a road traffic accident in Spain can bring a claim in England, but the compensation will be assessed in accordance with Spanish law.
Given that awards of compensation are generally lower in other European countries than in England, the effect of Rome II will be to the detriment of most English people injured abroad.
The intention and effect of Rome II is clear, but the mechanics of the implementation have caused no end of difficulty owing to the wording of the Regulation, allowing legal argument which has now been settled by the European Court of Justice.
Argument had arisen as to the date from which the Rome II regulation would apply because of ambiguity in the wording of Articles 31 and 32 of the regulation. Essentially it could be argued that the regulation could apply from 20th August 2007 or from 11th January 2009. The ambiguity caused many problems and was not a trivial issue to anyone pursuing a claim arising out of an accident during this period, because the argument would determine the law applicable to the assessment of their compensation.
On the 17 November 2011, the ECJ handed down its judgment in the case of Homawoo v GMF (an English victim versus a French insurer) and has ordered that Rome II will only apply to accidents occurring after 11 January 2009.
Rome II is likely to continue to attract wide criticism from claimants and those acting for them because the practical consequence is that post 11 January 2009 an English person injured in say, France, is likely to receive a lower amount of compensation than an English person injured in England suffering exactly the same injuries and consequential losses and pursuing a claim in the English courts.
Rome II is to be welcomed however because legal certainty as to its application of has now been achieved.