The Law Applicable to Product Liability in Context: Article 5 of the Rome II Regulation and its Interaction with other EU Instruments

Art. 5 of the Regulation (EC) No 864/2007 (so-called “Rome II”) provides for a special conflict-of-laws rule dealing with product liability cases. From a systematic perspective, an important point to note in relation to Art. 5 is that in EU Member States competing sources might come into play in determining the law applicable to product liability. This paper considers such a provision in the framework of the EU acquis in order to assess how the operation of the Rome II regime is affected by this interplay. In particular, after briefly recalling its underlying policies and the system for determining the law applicable to product liability laid down by this rule, it examines first the influence of the Product Liability Directive on Art. 5 Rome II. The article then goes on to consider the interaction (and more precisely the cross-fertilization) between the special head of jurisdiction in tort provided by the Brussels I system and the European regime on the law applicable to product liability. Against this background, the need for “systematic” coherence in the private international law of obligations is considered in the light of the ECJ ruling in Kainz (C-45/13), where the Court was called on to interpret Art. 5(3) of the Brussels I Regulation with the purpose of clarifying the place of the event giving rise to the damage in a product liability case.