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After the daughter of two Bulgarian nationals was killed in a traffic accident in Germany, the parents claimed damages for the emotional suffering caused by this. According to Article 4(1) of Rome II, the law of the country in which the damage occurred is generally applicable, so German law was deemed to apply to this case. German law only provides for compensation for non-material damage suffered by close relatives if they themselves have suffered a formally diagnosed psychological condition (Section 253 BGB). Under Bulgarian law, on the other hand, compensation is determined on the basis of equity (Article 52 ZZD) without such proof being required; significantly higher sums are usually awarded.

The claimants argued that Art. 52 ZZD should be applied as an “overriding mandatory provision” within the meaning of Art. 16 Rome II. The ECJ therefore had to clarify when national provisions are considered “overriding mandatory provisions.” The ECJ clarified that Art. 16 Rome II constitutes an exception to conflict of laws and must therefore be interpreted restrictively. The law determined in accordance with Art. 4 therefore takes precedence.

 

National provisions can only be classed as mandatory provisions if the circumstances of the claim establish sufficiently close connections to the forum state and the provision serves to protect an essential public interest that cannot be safeguarded by applying foreign law.

In its decision, the ECJ highlighted the parallels with Article 9 Rome I, according to which intervention rules are only utilised where their observance is indispensable for the protection of fundamental public interests (political, social & economic). This classification is the obligation of the national court, which must examine the wording, systematics, objectives, and context of the rule's origin.

 

The ECJ came to the following judgement:

The mere difference in the level of protection or the amount of compensation is not sufficient to trigger Article 16. Even if Bulgarian law grants higher compensation, it must be proven that the equity rule protects an essential public interest that cannot also be achieved by applying German law. In addition, there must be close links between Bulgaria and the case (e.g., the claimants’ place of residence, the location of the court), which the national court must examine.

 

Result:

Article 16 Rome II must be interpreted to mean that a national provision providing for compensation based on equity (such as Article 52 ZZD) does not automatically trigger an intervention ruling. It can only take precedence over the law determined under Article 4 (in this case German law) if the strict conditions mentioned above are met.

 

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