New regulations have come into force determining which national law governs non-contractual cross-border wrongdoings including competition and intellectual property disputes.

All courts in the EU (except in Denmark) will now adopt a uniform approach to ensure that the law governing a particular dispute is the same regardless of the nationality of the court before which it is brought.

Unfair competition cases will now be subject to the law of the country in which competition is (or is likely to be) affected. Where only a specific competitor is affected, the governing law will be:

  • that of the country in which the damage occurs, however
  • the priority is given to the law of a country in which both competitors have their habitual residence (or their branch or central administration, in the case of companies), and
  • irrespective of the above, it will be the law of a country that has a manifestly closer connection with the wrongdoing.

This retains some freedom for courts to choose which country's laws apply in a particular case.

Cases involving infringements of intellectual property rights will now be subject to the law of whichever country protects the relevant rights. For Community trade marks and designs (about issues that are not regulated by EU law), it will be the law of the country in which the infringement took place.

The regulations do not allow parties to choose a specific law to govern IP and unfair competition disputes, as they generally can in other non-contractual disputes.

Before the regulations, each country had its own rules for determining the law governing non-contractual obligations in these situations. For instance, Polish regulations applied the law of the country in which the incident causing damage occurred, which in cross-border cases could indicate both the country where the damage was suffered and that where the wrongdoing occurred.

Law: Regulation 864/2007 (Rome II)

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The original publication date for this article was 11/02/2009.