After the opinion of Advocate Szpunar, last week (5 September 2024) the Court of Justice delivered its judgment 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 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 decision, the Court of Justice adopts a solution similar to the one suggested by the Advocate General. Indeed, the Court of Justice stated that Art 16 of Regulation No 864/2007 must be interpreted “as meaning that a national provision under which compensation for non-material damage suffered by the close family members of a person who died in a road traffic accident is determined by the court on the basis of fairness cannot be regarded as an ‘overriding mandatory provision’, within the meaning of that article, unless, where the legal situation in question has sufficiently close links with the Member State of the forum, the court before which the case has been brought finds, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that national provision was adopted, that respect for it is regarded as crucial in the legal order of the Member State, on the ground that it pursues an objective of safeguarding an essential public interest that cannot be achieved by the application of the law designated pursuant to Article 4 of that 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.