The Law Applicable to Unfair Competition

The present contribution deals with the law applicable to unfair competition according to the EC Proposal for an EC Regulation on the Law Applicable to Non-Contractual Obligations (so called Rome II Regulation). The 2002 and 2003 EC Commission Draft Proposal had included a special rule for unfair competition torts, derogating from the general rule provided for under Article 2 and giving competence to the . In 2005 the European Parliament – in light of achieving better flexibility – radically reverted the Commission’s Draft, inserted a more complex and many-folded general rule and accordingly suppressed a number of special rules, among these the one for unfair competition. The contribution will insofar evaluate the need for a special in the face of the EP Draft. Even in the absence of a special rule however – indeed even more in such a case – the interpreter should be guided to search for the proper law of this special tort. After having evaluated the policies underlying the law of unfair competition, emphasis is given to their role as as a market-oriented body of rules, realizing the essential goal of granting order and protection to the market. Insofar, the author maintains that the ideal criteria for unfair competition torts is the one connecting to the affected market. i.e to the place where the unfair competition act produces its effects. The meaning and the scope of the ‘market’ notion is then shortly examined. In light of such conclusions, the rule suggested in the former Commission’s Draft envisaging the law of the State where competitive relations or the collective interests of consumers are directly and substantially affected is considered and founded substantially parallel to the criterion of the effect on the market. Perplexity is raised however for the need of a different wording, departing from the accepted rule and no way fostering better or easier understanding. Finally the traditional derogations to the criteria of the affected market for acts affecting exclusively the interest of a single competitor (so called Nuβbaum rule) is examined and criticised.