Last week (14 March 2024), Advocate General Szpunar delivered his opinion on the case No C-86/23, E.N.I., Y.K.I. v. HUK-COBURG-Allgemeine Versicherung AG.
The request for a preliminary ruling – lodged on 15 February 2023 by the Supreme Court of Cassation of Bulgaria (Varhoven kasatsionen sad) – seeks the interpretation of Art 16 of Regulation (EC) No 864/2007.
The applicants in the main proceedings, E.N.I and Y.K.I., are Bulgarian nationals, whose daughter died in a road traffic accident in Germany. They brought a claim against HUK-COBURG-Allgemeine Versicherung AG, the insurer of the person responsible for the accident, before the competent Bulgarian Court for non-material damage suffered as a result of the death of their daughter. The dispute concerns the applicable material rules. Although it is not disputed that, as per Art 4 of Rome II Regulation, German law applies in this case, the referring court asks whether a rule of Bulgarian law, “which provides for the application of a fundamental principle of the law of the Member State, such as the principle of fairness, in the determination of compensation for non-material damage in cases where the death of a close person has occurred as a result of a tort or delict”, may be regarded as an overriding mandatory provision within the meaning of that Art 16 of Rome II Regulation.
In the Advocate General’s views, Art 16 of Regulation No 864/2007 must be interpreted “as precluding a national provision, such as that at issue in the main proceedings, which provides for the application of a fundamental principle of the law of a Member State, such as the principle of fairness, in the determination of compensation for non-material damage suffered by close family members of a person who died in a road traffic accident, from being regarded as an overriding mandatory provision within the meaning of that article, unless the court seised finds, on the basis of the existence of sufficiently close links with the country of the forum and a detailed analysis of the terms, general scheme, objective and context of the adoption of that directive, that it is of such importance in the national legal order that it justifies a departure from the applicable law designated” pursuant to Art 4 of Rome II Regulation
On Rome II Regulation, the readers of RDIPP may refer to:
Gabriella Carella, 2005, No 1, 25 ff.; Russell J. Weintraub, 2005, No 3, 561 ff.; Alberto Malatesta, 2006, No 1, 47 ff.; Luís de Lima Pinheiro, 2008, No 1, 5 ff.; Cristina M. Mariottini, 2012, No 3, 647 ff.; Lidia Sandrini, 2013, No 3, 677 ff.; Paola Ivaldi, 2013, No 4, 869 ff.; Filippo Marchetti, 2017, No 4, 883 ff.