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Despite the fifteen-year period of validity of the “Rome II” Regulation, its application by the courts of the Member States is still, in some respects, a source of serious controversy. It manifests itself with particular intensity in Art. 16, devoted to overriding mandatory rules. This should be attributed to two factors. The first one is the resignation from including therein a legal definition of this category of norms, in contrast to Art. 9 section 1 of the “Rome I” regulation. The other is the phenomenon of a kind of “inflation” of the concept of overriding mandatory provisions, observed in the PIL. It manifests itself in the attempts to attribute such qualification to binding rules of national law, the nature of which do not indicate a conflict of laws element inherent in them, implying the need to apply them in addition to or instead of the applicable law. The case C-86/23 pending before the CJEU, as a result of a request for a preliminary ruling submitted in the decision of the Bulgarian Supreme Court of Cassation of February 7, 2023, gives an excellent opportunity to bring up once again the issue of the proper way of understanding the concept of overriding mandatory rules in the context of Art. 16 of the Rome II Regulation, using as an example the norms applicable in Bulgarian substantive law, which regulate the principles of granting compensation for harm caused by the death of a close relative. Looking at the matter in question from the perspective of the fifteenth anniversary of the regulation’s validity, the author recommends particular caution in applying Art. 16 and, at the same time, makes an attempt to formulate a proposal of an answer to the question referred to in a preliminary ruling.
Łukasz Żarnowiec (Thu,) studied this question.