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Higher Regional Court of Dresden: Preliminary Ruling of December 1, 2025 – 17 U 1017/25

Applicability of Polish law and scope of damages in traffic accidents in Poland under Article 4(1) of the Rome II Regulation  

 

- Key Legal Issue and Court’s Finding

In its preliminary ruling of 1 December 2025, the Higher Regional Court (OLG) of Dresden clarified the applicable law and scope of damages in a cross‑border traffic accident occurring in Poland.

The court held that, pursuant to Article 4(1) of the Rome II Regulation, Polish law applies. Under Polish law, the liability insurer is responsible for full compensation, including:

• replacement costs in cases of total loss,

• private expert fees,

• pre‑trial attorney’s fees, and

• statutory default interest.

 

- Applicable Law and Basis of Liability

The court confirmed the application of Polish substantive law, as the damage occurred in Poland (lex loci damni).

Liability is based on:

• Articles 415, 435, and 436 of the Polish Civil Code, and

• the Polish Act on Compulsory Insurance.

A direct claim against the liability insurer is expressly recognized under Polish law.

 

 

- Scope of Recoverable Damages under Polish Law

Polish tort law is governed by the principle of full compensation (pełne odszkodowanie). This includes all normal and foreseeable consequences of the damaging event.

In particular, compensable damages include:

• the replacement value of the vehicle in the event of a total loss,

• the costs of a private expert opinion, and

• pre‑trial legal fees incurred to enforce the claim.

The court further confirmed that Polish law allows for the difference method when calculating property damage. In the case at hand, the necessity and appropriateness of each individual damage item were affirmed.

 

- Recoverability of Pre‑Trial Attorney’s Fees

The OLG Dresden emphasized that retaining legal counsel is generally necessary in cross‑border cases.

Under Polish law, pre‑trial attorney’s fees are recoverable, particularly where:

• a foreign legal system is involved, and

• language barriers complicate the enforcement of claims.

Accordingly, such costs qualify as recoverable damages.

 

- Interest on Late Payment

Default interest was awarded in accordance with Polish law at a rate of:

• 5.5 percentage points above the reference rate of the National Bank of Poland,

• calculated from the date of the formal demand for payment.

 

- Procedural Notes

The court found that the appeal clearly lacked any prospect of success and should therefore be dismissed without an oral hearing pursuant to § 522(2) of the German Code of Civil Procedure (ZPO).

The defendant was expressly advised to withdraw the appeal in order to avoid unnecessary additional costs.

 

- Practical Relevance

This decision confirms the consistent application of foreign substantive law in cross‑border traffic accident claims within the EU and provides important clarification regarding the scope of recoverable damages under Polish law.

It is of particular practical relevance for insurers, lawyers, and claimants involved in traffic accidents in other EU Member States, especially Poland.