The law applicable to pre-contractual liability in European Union Private International Law

Jéssica Marques Ferreira

Keywords

European Union Private International Law; pre-contractual liability; contractual obligations; non-contractual obligations; Rome I Regulation; Rome II Regulation.

Abstract

Within the European Union, the Private International Law of obligations is divided into two major instruments: the Rome I Regulation, which seeks to regulate contractual obligations, and the Rome II Regulation, which seeks to regulate non-contractual obligations. In the domestic systems of the different Member States, pre-contractual liability is difficult to qualify in terms of substantive law, a difficulty which then has repercussions on the conflict of law system, raising the problem of knowing to which conflict of law rules the substantive rules concerning pre-contractual liability are subsumed. The European Union legislator, along the lines of the Court of Justice of the European Union case-law, has tried to solve the problem, submitting this liability, apparently, to the regime of non-contractual obligations. In this work, we will try to explain in which circumstances pre-contractual obligations are subject to that regime and in which cases they are regulated by the regime of contractual obligations. And, when they are subject to the conflict of law rules of non-contractual obligations, we will also try to present and solve some questions that may arise in the application of the european regime of non-contractual obligations.