This project was finalised in November 2025. Click here for the follow-up project.
Principle Investigator
Dr. Benedikt Schmitz, LL.M.
Contributors
Andreas Schwartze, Cedric Vanleenhove, Ilia Lassin, Ivana Kunda, Nicholas Mouttotos, Pavel Koukal, Gea Lepik, Ilaria Pretelli, Benedikt Schmitz, Kostas A. Rokas, Ferenc Szilágyi, Máire Ní Shúilleabháin, Elisabetta Bergamini, Katarzyna Bogdziewicz, Anna Wysocka-Bar, Anabela Gonçalves, Sergiu Popovici, Dominika Moravcová, Marek Nekoranik, Karmen Lutman, Anna María Ruiz Martín, Beatriz Añoveros Terradas, Gunnar Bramstång, Ross Pey
The Rome I Regulation plays a crucial role in determining the applicable law in cross-border consumer contracts within the European Union. Article 6(2) Rome I Regulation allows parties to choose the governing law while ensuring that consumers do not lose the protection granted by mandatory provisions of the law that would apply in the absence of such a choice. Despite its significance, the interpretation of this provision varies across Member States, leading to questions about its practical coherence and effectiveness.
Existing research on Dutch and German law suggests diverging approaches in legal scholarship. In the Netherlands, academic literature strongly relies on the protection principle approach, which means that the non-derogable rules of the consumer’s habitual place of residence apply at all times – regardless of their content. German scholars, by contrast, follow the preferential law approach that requires a comparison between the chosen law and the consumer’s home law to determine the most protective outcome. The non-derogable rules of the consumer’s habitual place of residence only apply in so far as they protect the consumer better than the chosen law. However, it remains unclear whether these trends are unique to these jurisdictions or reflect broader tendencies across the EU.
This preliminary phase of a potentially larger study aims to map how Article 6(2) Rome I Regulation is understood in academic literature across all EU Member States. Through a structured review of national legal scholarship, it will identify prevailing interpretations, key theoretical arguments, and the extent to which doctrinal debates align or diverge across jurisdictions. The main research questions include:
- How do scholars across the EU interpret Article 6(2) Rome I Regulation?
- RESULT: Our study has found all Member States but Italy and the Netherlands interpret Article 6 (2) Rome I Regulation in accordance with the preferential law approach.
- Is there a dominant academic preference for the preferential law approach, the protection principle approach, or another framework?
- RESULT: The clear dominant academic preference across the EU is the preferential law approach. In addition to Italy and the Netherlands actively adhering to the protection principle approach, scholarship in the Czech Republic used to follow that approach.
If the findings indicate that Member States follow different approaches, the study will be expanded to include an in-depth examination of national case law.