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The Regional Court of Cologne recently dealt with a cross-border case involving two German holidaymakers who were in an accident in Austria. The accident occurred as a result of a failed overtaking manoeuvre. The driver who caused the accident had overtaken several cars in the left lane and failed to notice that a vehicle was about to move from the right-hand lane into the left-hand lane. The driver had taken the appropriate precautions: she had indicated, reduced her speed, and begun to overtake. It was therefore clear that she was preparing to overtake. Nevertheless, the person who caused the accident sued the insurance company of the overtaking driver because they believed they had a claim under Sections 7(1) and 17(1) of the Road Traffic Act, together with Section 115(1)(1) of the Insurance Contract Act.

In such cases, the first question that arises is which law applies, as this is a cross-border matter. This is an indication that German law does not apply directly. It is therefore necessary to consult the Introductory Act to the Civil Code to determine which regulation applies. In this case, the Rome II Regulation applies, as the accident constitutes a non-contractual obligation.

According to Article 17 of the Rome II Regulation, the law of the place where liability arose (i.e. where the harmful event occurred) applies (known as the principle of the place of the harmful event). However, the amount of compensation depends on where the damage ultimately occurred. In this case, that would be the home country of the persons concerned, i.e. Germany. More precisely, this is only the case because both individuals have their centre of life in the same country. This is assessed in accordance with Article 4(2) of the Rome II Regulation. This means that two different legal systems apply.

Austrian law applies to the question of liability, while German law applies to the type and extent of damages. According to the Austrian Road Traffic Regulations, because the driver had clearly indicated his intention to overtake on the right, he should have abandoned his manoeuvre and overtaken on the right, in accordance with Section 15(2)(a). Furthermore, it was no longer possible to overtake safely because overtaking was prohibited in accordance with Section 16(1)(a) of the Austrian Road Traffic Regulations. The person who caused the damage violated these standards expressly. Unlike German law, Section 12(1) of the Austrian Road Traffic Regulations stipulates that drivers only need to look back once. Therefore, once she had checked that the road was clear, she was under no further obligation to look again.

In its ruling of 26 June 2025 (file number 36 O 325/23), the Regional Court of Cologne concluded that the driver in the left lane was solely at fault, as the driver in the right lane had done everything required by the Austrian Road Traffic Regulations, and it was in fact the plaintiff who had violated them.

 

 

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