ROME II : quelle loi applicable aux actes de concurrence déloyale ?

EC Regulation no. 867/2007, also referred to as “Rome II”, became effective on January 11, 2009. The aim of this Regulation is to establish an objective and harmonized method to determine the applicable law in matter of non-contractual obligations.

Up to now, failing such harmonization, and given the differences between national laws and practices amongst the Member States of the UE, the parties to a litigation could be tempted to refer their dispute to the court that would apply the law that would be most favorable to them (this practice is called “forum shopping”).

 

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In line with the solution that is already applied in the majority of the Member States, the Regulation establishes as a general rule that the law of the location where the damage occurs will apply. The Regulation also provides for a number of specific rules for certain frequent torts, such as product liability, environmental damage, unfair competition practices, etc.

Article 6 of the Regulation establishes a rule of conflict, to determine the law to be applied to acts of unfair competition.

According to paragraph 1 of this article, “The law applicable to a non-contractual obligation arising out of an act of unfair competition shall be the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected”.

Paragraph 2 of the same article further specifies that “Where an act of unfair competition affects exclusively the interests of a specific competitor, Article 4 shall apply”. Therefore, in such case, the applicable law 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”.

Article 6 therefore makes with a distinction between the acts affecting the collective interests and those affecting the interest of a specific person. However, it should be noted that the criterion is the same in both hypotheses:

  • The law of the concerned market for acts of unfair competition affecting the collective interests. In other words, the law applicable shall be the law of the country where the market is affected by the acts of unfair competition.
  • The law of the country where the damage occurred for the acts affecting the economic interest of a single competitor.

However, the law of the affected market is equivalent in practice to the law of the “damage” country and conversely. The criterion is therefore the same in both cases considered by the EC Regulation since it is on the market where it is operating that the affected competitor will sustain the damage.

Nevertheless, two questions remain unsolved and are liable to prevent the complete harmonization of private international law the Regulation sought to achieve:

  1. Definition of the acts of unfair competition

The definition varies from Member State to Member State and could therefore imply distortions in the application of the Regulation.

In fact, the complete harmonization of the conflict rules in the field of unfair competition calls for a truly universal definition. Directive 29/2005 of May 11, 2005 relating to unfair competition practices of businesses vis-à-vis the consumers will certainly be used as a basis of assessment by the European Court of Justice.

  1. What will be the applicable law in cases where the territories of several countries are affected or where the market cannot be easily located, especially when the act of unfair competition has been committed on the Internet?

These two situations are not settled by the Regulation and therefore will have to be solved by case law.

In cases where the interest of a single competitor would be affected, article 4 gives a number of keys to decide whether to apply the law of the country where the damage occurred, irrespective of the country where the indirect consequences of that damage occur.

However, no solution has been established for cases (a frequent assumption) where collective interests are affected, and judges are expected to apply a plurality of national laws.

Consequently, we cannot but wait for the Community judges’ interpretation in order to know the exact scope of the harmonization the Rome II Regulation has achieved.

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