Culpa in contrahendo and the Regulation 1215/2012: more questions than answers

Abstract

Pre-contractual liability lacks a specific ruling in Regulation 1215/2012. The application of the forums provided for in the European instrument, rather than offering solutions, raises doubts and questions that may have different answers. On the other hand, the problem has neither been analyzed by the ECJ in relation to any of the legal instruments applicable to PIL matters, namely, from the Brussels Convention to Regulation 1215/2012. One level more of difficulty adds the assessment of the relationship between the parties. If it is deemed to be contractual, international jurisdiction would be determined by art. 7.1 R1215/2012, but if it is non-contractual, by art. 7.2 R1215/2012. According to the ECJ case law, the claimant has two possibilities – to present the claim before the courts of the place where the harmful event occurred or before the courts of the place where the damage occurred – which in an international scenario can be difficult to determine. A third way of analysis arises from the possible analogous application of art. 12 RRII for the purposes of international jurisdiction, which bases its raison d'être on recitals 7 RRII and 7 RRI, both advocating the necessary consistency in the application of European instruments in the field of PIL – Brussels I Regulation, Rome I Regulation and Rome II Regulation.