X v Y (parental responsibility). Vlas AG (of the Supreme Court of The Netherlands) ia on the evidence and procedure carve-out and Article 22 Rome II.

I am much annoyed one has to refer to cases like these yet again as X v Y (see also here, also on Article 22 Rome II). I understand the need for anonymisation in this particular case, ECLI:NL:PHR:2023:1114, which concerns the liability of a Dutch mother, guardian of a (young) adult son with mild autism and ADHD and a number of mental health challenges, who stabbed and otherwise attacked a Russian (immaterial to the attack) boy living in Germany but holidaying with his family in Crete. Yet some kind of acronym might be helpful.

At any rate, the interest of this tragic case for the blog lies in Advocate General Vlas discussing Rome II particularly the evidence and procedure carve-out as qualified by Article 22 Rome II’s inclusion of the burden of proof in the lex causae:

Article 22 Rome II

Burden of proof

1.   The law governing a non-contractual obligation under this Regulation shall apply to the extent that, in matters of non-contractual obligations, it contains rules which raise presumptions of law or determine the burden of proof.

2.   Acts intended to have legal effect may be proved by any mode of proof recognised by the law of the forum or by any of the laws referred to in Article 21 under which that act is formally valid, provided that such mode of proof can be administered by the forum.

Parties agree Greek law is the lex causae. Dutch law applies procedurally as the lex fori, with the A22 Rome II caveat. (3.25) the AG cites the relevant burden of proof issue in the Greek Civil Code: Article 923:

 “Whoever has the supervision of a person under age or of a person placed under judicial assistance is liable for the damage that such persons unlawfully cause to a third party, unless he proves that he has exercised properly the duty of supervision or that the damage could not have been avoided. (…)”. (…)’

(3.26) the AG summarises the implications of A22 as follows (translated by me, and omitting his references (ia to prof Peters, Magnus/Mankowski/Queirolo, Kramer, and Bart-Jan van het Kaar) 

In brief, it follows from A22(1) Rome II that the lex causae applies to the burden of proof. A22 concerns substantive issues of the law of evidence, such as the distribution of the burden of proof. It does not concern issues relating to the formal elements of the burden of proof, such as admissibility and the appreciation of evidence. These issues are subject (see A10:3 Dutch Civil Code) to Dutch law as the lex fori.

A relevant consideration, one will have to wait and see whether the Supreme Court itself will engage with the A22 issue, which is only a small part of the appeal.

Geert.

EU Private International Law, 4th ed 2024, 4.79 ff.