Life after Brexit

Michał Krzanowski        11 January 2019        Comments (0)

On 30 March 2019, two years will have passed since the United Kingdom launched the procedure for leaving the European Union. It is still unclear whether an agreement will be reached between the EU and the UK before that date, regarding the conditions of their much-publicised divorce. However, if the parties do not conclude such an agreement, as of 30 March 2019 the UK will become a “third country”, and the European Law will become inapplicable to the UK. Thus, it is worth considering if – and if so, then how – will this influence the injured parties’ situation in cross-border cases.

“Magical” 1215/2012

First of all, it is worth pointing to the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Pursuant to this regulation, the judicial decisions of the European Union’s Member States are enforceable in other Member States without the requirement of declaring the enforceability in separate proceedings – which is considered a significant convenience in cross-border cases.

What is all the more important, the regulation is also an act on the basis of which jurisdiction is established for cross-border civil and commercial cases. For example, persons permanently residing in the UK who have sustained damage while on a trip to Poland – usually resulting from fault on part of an entity with its registered office, or domiciled in Poland – are faced with a challenging situation: not only do they have to suffer from the consequences of the damage, but they also have a difficult dispute ahead of them, involving many doubts. Will it be necessary for an injured UK resident to start potential proceedings in Poland?

Where to sue for personal injury?

Today in such a situation, the above-mentioned regulation comes to aid. In some cases, it grants an exception to the principle that a person domiciled or with a registered office in one of Member states may be sued in the court of that Member State. In particular, this applies to insurance businesses, which – pursuant to the regulation – may also be sued in the court competent for the registered office or domicile of the person entitled under the insurance contract.

However, where the insurer is liable for damage caused by the insured person, the abovementioned option of suing the insurer is subject to one more condition – it must be possible under national law to sue the insurer directly. Going back to our example – in the event of such a dispute, how should it be assessed which law should apply to resolve this issue?

Insurer: party to the proceedings?

In this regard, that is whenever the applicable law is put into question, a key piece of EU legislation is the Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). The regulation stipulates, that for non-contractual obligations – and that is the case in the example discussed above – it is the law applicable to the non-contractual obligation that resolves whether the injured party may bring his or her claim directly against the insurer. In turn – also pursuant to this regulation – for non-contractual obligations arising out of a delict, the law applicable will usually be the law of the country in which the damage occurs.

Service of documents: may seem unimportant, however…

Finally, it is worth mentioning two further Regulations which govern the principles of the service of documents, and of taking evidence in other countries than the country where the court hearing the case is sitting, i.e. Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 and Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters . These two regulations, although of relatively less significance than the aforementioned, undoubtedly serve to accelerate and facilitate the conduct of all cross-border proceedings, including those related to personal injury.

Will the victims secure a successful exit from Brexit?

The issue of continuation of the above-mentioned legislation or its equivalents may of course be governed by the agreement between the EU and the UK regarding the conditions of the exodus mentioned in the introduction. However, its conclusion still remains a big question mark. In the absence of an agreement, as of 30 March 2019, the victims’ situation in cross-boarder disputes involving the UK will certainly be substantially worse than so far.

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