THE ODENBREIT TRAP Door Herman Naeyaert, NAEYAERT, CARSAU & DE ROECK www.ncd‐law.be Before the Odenbreit‐decision the matter of jurisdiction was governed exclusively by the EC Council Regulation nr. 44/2001. The victims/claimants had various options. 1. According to article 2 of the Council Regulation (CR), persons domiciled in a contact state can , whatever their nationality, be sued in the courts of that state. This option is currently known as the defendant’s domicile court. 2. According to article 5 of the CR, a person domiciled in a member state may be sued over matters of tort, delict or quasi‐delict in the courts of the state where the harmful event occurred or may occur. This option is an application of the principle “lex loci delicti”. The Odenbreit‐decision (case C/463/06) rendered by the European Court of Justice, on the 13th of December 2007 , created a third option. According to this decision, a victim may bring an action before the Court of the country of his domicile, provided that a. a direct action is permitted according to the insurance legislation of the country of the tortfeasor and b. the insurer of the tortfeasor is domiciled in a member state. In that case the local judge has to apply the law of the country where the accident occurred.( lex loci delicti) At first sight this solution may be beneficial for the claimant. However bringing a case before the court of domicile of the victim (local or domestic court) has many disadvantages . Pagina 1
A. The local ( domestic) judge has , according to art. 4 §1 of Rome II, to apply the law of the place where the accident occurred . The victim runs the risk that his local (domestic) judge will not apply or interpret the foreign law appropriately. It is already a huge task for a judge to apply the rules of his own legislation . We can imagine the difficulty of the UK‐court for example, who would have to apply Belgian Swedish or Spanish law. Indeed, the local judge has not only to apply foreign law in terms of liability but also in terms of quantification of the damage. In the so called “Napoleonic legislations” the calculation of the compensation is based on medical reports. The courts in France, Belgium, the Netherlands etc. apply totally different standards, compared to the standards used by UK courts. Medical examiners in countries having the Napoleonic code, give an estimation about the nature, extent, duration and percentage of the temporary incapacity, date of consolidation, percentage of permanent incapacity and inability, impact of the injuries on the effective reduction in working capacity , etc. These parameters are used to determine the final compensation. The medical reports, issued by UK‐doctors are therefore useless for the evaluation of injuries according to Belgian, French and Dutch law as these courts do not use those standards. B. It is clear that these proceedings are a waste of time and money. The client will not only have to pay medical examiners in England but also in the place where the accident occurred. The victim or his/ her legal protection insurer will have to pay fees to the domestic lawyer and to the lawyer of the country where the accident occurred, for delivering an opinion about the liability or/and the quantification of the compensation. Translations of all relevant documents will have to be made which causes extra expenses, which are not recoverable. Pagina 2
C. In all accidents where victims are injured (80% of all accidents) the Public Prosecutor in the countries based on Napoleonic Code, will start a criminal enquiry which mostly leads to a prosecution of the tortfeasor/wrongdoer. It is very easy for a victim to join the criminal procedure and to claim compensation without starting separate proceedings in a civil court. No extra courtfees are due. There is an extra trap in that regard. A criminal prosecution does not lead automatically to a conviction of the prosecuted tortfeasor as he/she can deny his/her liability before the criminal Court. The outcome of a criminal procedure might be an acquittal of the tort feasor. In the event that the victim joins the criminal procedure, he/she has the possibility to bring forward all measures and arguments in order to avoid an acquittal. It is clear that if a tort feasor is acquitted, the decision will have its consequences in the local procedure. The domestic Judge indeed is bound by the decision already taken by the criminal court of the “loci delicti “ . An eventual acquittal by the lex delicti court has indeed a binding force “erga omnes” . The Odenbreit‐case has opened a new option with regard to jurisdiction. However this option has complicated, in many ways, the rights of the victim to receive a fair compensation in a short time. It is in the intrest of the victim to bring the action in claiming compensation for damages in the shortest , cheapest and most efficient way , wich means without any doubt : before the Court of the place where the accident occurred. Pagina 3