THE LAW APPLICABLE TO TORT CLAIMS BROUGHT BY SECONDARY VICTIMS THE FLORIN LAZAR V. ALLIANZ SPA AND GERMANWINGS CASES

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Yearbook of Private International Law, Volume 17 (2015/2016), pp. 477-489
© Verlag Dr. Otto Schmidt & Swiss Institute of Comparative Law
Printed in Germany
COURT DECISIONS
________________
THE LAW APPLICABLE TO TORT CLAIMS
BROUGHT BY SECONDARY VICTIMS
THE FLORIN LAZAR V. ALLIANZ SPA
AND GERMANWINGS CASES
Thomas KADNER GRAZIANO*
I. The Florin Lazar v. Allianz SpA Case (C-350/14)
A. Facts and Question of Law
B. The Decision of the ECJ
C. Conclusions Regarding the Interpretation of Art. 4(1) and Arguably also of
Art. 4(2) of the Rome II Regulation
D. Consequences for the Interpretation of Art. 4(3) of the Rome II Regulation?
II. The Germanwings Case
A. Facts and Applicable Law According to the Montreal Convention
B. Determining which Persons Are Entitled to Compensation Pursuant to Art. 4
of the Rome II Regulation
C. A Case for Art. 4(3) of the Rome II Regulation?
1. The Law that Would Be Applicable to Any Action Brought by a
Primary Victim
2. The Law Applicable to a Claim Brought by a Secondary Victim: a
Case for the First Sentence of Art. 4(3)
III. Conclusions
I. The Florin Lazar v. Allianz SpA Case (C-350/14)
A. Facts and Question of Law
On 10 December 2015, the ECJ decided for the first time which law is to apply
according to the Rome II Regulation for a claim in damages brought by a family
member of a victim who had lost his or her life in an accident. A young woman, a
* Professor of Law at the University of Geneva, Faculty of Law
(thomas.kadner@unige.ch), Director of the Faculty’s Department of Private International
Law; Visiting Professor at the University of Leuven (KUL) and Renmin University of China
(Beijing).

Thomas Kadner Graziano
Yearbook of Private International Law, Volume 17 (2015/2016)
478
Romanian national residing in Italy (hereinafter: the primary victim), had died in a
road traffic accident in Italy. The vehicle that had caused the accident could not be
identified. The father of the young woman, Mr Florin Lazar, a Romanian national
residing in Romania (hereinafter: the secondary victim), requested compensation
for his own material and immaterial harm following the death of his daughter.
Under Italian law, in cases in which the identity of the driver that caused the acci-
dent remains unknown, any eventual award of compensation is provided by a guar-
antee fund, which is to designate an insurer, in the present case Allianz SpA. Mr
Lazar thus brought a claim in damages against Allianz SpA before the district court
in Trieste, Italy.
In the majority of European jurisdictions, in cases such as these, close
family members are entitled to recover certain pecuniary loss (in particular loss of
financial support or maintenance) and damages relating to non-pecuniary harm
which they suffer following the death or, as we are witnessing now in more and
more jurisdictions, severe injury of a loved one (in case of death referred to as
bereavement damages).1 Bereavement damages, however, remain unrecognised,
for example in German and Dutch law. In the past, divergences between national
laws with regard to liability for bereavement damages often led secondary victims
to bring their case to the highest courts to seek the application of their desired lia-
bility law.2
In the Florin Lazar v. Allianz SpA case, when it comes to determining the
applicable law, the first approach to consider was that claims brought by secondary
victims ought to be assessed under Italian law, since the accident occurred in Italy
and the primary victim lost her life there. A second, alternative approach was to
apply Romanian law instead, given that the secondary victim had his domicile, or
habitual residence, there and had to live with the consequences of the accident in
1 For a comparative overview see e.g. Hoge Raad, Judgment of 22 February 2002 –
On compensation for psychiatric injury and emotional distress suffered by close relatives,
ERPL 2003, 412, case notes H. ZINNEN, A. PRETTO, A. JANSSEN, G. MEILHAC-REDON,
B. PASA; K.H. DANZL, Der Ersatz ideeller Schäden in Europa und im AGBG am Beispiel
des Angehörigenschmerzensgeldes, in Festschrift 200 Jahre ABGB, Wien 2011, 1633;
Th. KADNER GRAZIANO, Angehörigen- oder Trauerschmerzensgeld – Die Würfel fallen, RIW
2015, 549; all making reference to the law of numerous jurisdictions.
2 Which then led to a number of seminal cases in the European Private International
Law of torts, see e.g. the Scottish cases MacElroy v. MacAllister, 1949 S.C. 110 and
Naftalin v. London, Midland and Scottish Ry. Co., 1933 S.C. 259; the Belgian case Bologne
c. Sainte, Hof van Cassatie 17.5.1957, Pas. 1957, I, 1111; the French cases Kieger c.
Amigues, Cour de Cassation 30.5.1967, Rev. crit. dr. int. pr. 1967, 728, and X c. Société Axa
courtage et Y c. Compagnie Axa courtage, Cour de Cassation (1e ch. civ.) 28.10.2003,
available at <www.courdecassation.fr> and <www.legifrance.gouv.fr>; the Austrian case
Oberster Gerichtshof 4.12.1967, IPRE 1/14 = ZfRV 1969, 304; the Italian case Platzer c.
Pichler e Kapferer, Corte di Cassazione 26.5.1980, Riv. dir. int. priv. proc. 1982, 79; see
also the German cases KG 24.2.1983, VersR 1983, 495 and OLG Köln 27.5.1993, VersR
1993, 977. The Italian Corte di Cassazione recently held that the refusal of a foreign law to
award bereavement damages is not only contrary to the Italian Constitution, but also to the
European Convention of Human Rights (Art. 8) and the Charter of Fundamental Rights of
the European Union (Art. 7), 22.8.2013, n. 19405, Foro it., fasc. 10, 2014, col. 2809 with
case note by M. CASORIA.

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Yearbook of Private International Law, Volume 17 (2015/2016) 479
Romania. Both jurisdictions provide damages for bereavement. Those granted in
Italy are arguably the most generous in Europe.3
In favour of the first approach one can argue that the injury of the primary
victim is simultaneously the source of the harm suffered by the secondary victim.
The view of this approach is that the place of injury suffered by secondary victims
should be the same as that applied to primary victims. Actions of both primary and
secondary victims are thus to be governed by the same law.4
On the other hand, in favour of the second, alternative approach, it could be
argued that in cases such as the one argued before the ECJ, the loss of a loved one
represents an injury to a personality right (i.e. a subjective right) of the secondary
victim. In some jurisdictions (such as Italian and Swiss), bereavement damages are
granted on the grounds that the loss of a loved one (i.e. of the primary victim) may
entirely change the life of close family members and consequently have the effect
of injuring the secondary victims in their personality rights.5 The accident would
then at the same time injure the primary victim in his or her life and the secondary
victim in his or her personality rights. For the secondary victim, the place of injury
may then be determined autonomously, with the result being that the place of inju-
ry will be located at his or her domicile or habitual residence.6
3 Comp. M. WENTER, Die Ansprüche naher Angehöriger von Unfallopfern im
italienischen Schadensrecht, zfs 2012, 1; G. CHRISTANDL/ D. HINGHOFER-SZALKAY,
Ersatzansprüche für immaterielle Schäden aus Tötung naher Angehöriger – eine
rechtsvergleichende Untersuchung, ZfRV 2007, 44, 58 ff.; see for Romania Art. 1391(1) and
(2) of the Romanian Civil Code (Codul civil).
4 G. LÉGIER, Note, Clunet 2004, 499, 510; JCP 2004, II 10006, 86, case note
G. LARDEUX; Th. KADNER GRAZIANO, Tödliche Flussfahrt auf dem Mekong – Anknüpfung
der Ansprüche von Angehörigen im europäischen Deliktskoordinationsrecht, IPRax 2006,
307, 311, at 312.
5 See e.g. the case of the Swiss Federal Supreme Court of Justice 22.4.1986, BGE
112 II 220: “Der Unfall hat die bisherigen Lebensverhältnisse des Klägers geradezu
umgestürzt. Die eheliche Gemeinschaft ist weitgehend zerstört […]. Der Kläger, der an der
Pflege seiner Ehefrau intensiv Anteil nimmt, hat ausserhalb seiner Berufstätigkeit im
Krankenheim kaum mehr Zeit für sich. Eine zusätzliche Belastung ergibt sich daraus, dass
Frau X. ihren Zustand wenigstens teilweise realisiert.” [The accident has entirely destroyed
the previous lifelong relationship enjoyed by the plaintiff. The companionship of marriage
has been largely eliminated […]. The plaintiff, who devotes his time intensively to caring
for his wife, has hardly any time to himself apart from his work in the nursing-home. The
fact that Mrs X is at least partly aware of her condition merely adds to the burden he has to
bear]. The Swiss Federal Court held that under such circumstances the secondary victim in
suffers injury in his personality rights which are explicitly protected under Arts. 28 and 28a
of the Swiss Civil Code and Art. 49 of the Swiss Code of Obligations.
6 For the localisation of personality rights (for the purpose of international
jurisdiction) at the place of the victim’s habitual residence, see the cases ECJ 25.10.2011,
C-509/09 (eDate Advertising GmbH v. X) and C-161/10 (Olivier Martinez and Robert
Martinez v. MGN Limited), paras. 48 and 49: “the impact […] on an individual’s personality
rights might best be assessed by the court of the place where the alleged victim has his
centre of interests […] The place where a person has the centre of his interests corresponds
in general to his habitual residence”. – Secondary victims might expect that the law of their
habitual residence apply to their claim for bereavement damage, see Th. KADNER GRAZIANO
(note 4), at 311 with reference to the case of the tragic accident in the Mont Blanc Tunnel.

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B. The Decision of the ECJ
The ECJ opted for the first approach, submitting all damage (i.e. initial damage and
damage suffered by secondary victims) to the law of the place where the event of
their common cause of action had taken place (in this case Italy). The Court
thereby refused to localise the injury suffered by the secondary victim autono-
mously, so as to afford different treatment of primary and secondary victims. In its
reasoning, the ECJ relied upon three central arguments.
Firstly, the ECJ refers to the wording of Art. 4(1) of the Rome II
Regulation. This provision states that the applicable law is generally the law of the
country in which the damage occurs, provided that this place can be localised; in
the case of traffic accidents, localisation of the damage is usually without any
major difficulties. This law then applies “irrespective of the country or countries in
which the indirect consequences of that event occur”, including – according to the
ECJ – damage suffered by a secondary victim. The Court held that “[t]he damage
sustained by the close relatives of the deceased, must be regarded as indirect conse-
quences of the accident […], within the meaning of Art. 4(1) of the Rome II
Regulation.”
Here, the reasoning of the ECJ remains rather formal. As we have seen, it
would also have been conceivable to localise the direct damage from the perspec-
tive of the secondary victim – namely at his domicile. By way of an example,
according to the Swiss Federal Supreme Court, a secondary victim who suffers an
injury to one of his or her subjective rights (such as the right to one’s health or
bodily integrity, or any other personality right or property right) suffers direct
damage (as opposed to a victim who suffers pure economic loss as a result of inju-
ry to a primary victim). This is so regardless of the length of the chain of causation
between the damaging act and the injury suffered by the secondary victim.7 The
Swiss Federal Supreme Court hereby avoids difficult distinctions between direct
and indirect damage and instead focuses on the violation of subjective rights.
Secondly, the ECJ refers to Art. 15(f) of the Rome II Regulation. According
to this provision, “[t]he law applicable to non-contractual obligations under this
Regulation shall govern in particular […] persons entitled to compensation for
damage sustained personally.” Indeed, it may very well be inferred from this
For an opinion in favour of the application of the law at the domicile of the secondary victim
in the Lazar case, see P. MANKOWSKI, Anmerkung zu EuGH, Urteil vom 10.12.2015, JZ
2016, 310 at 311 f.
7 See e.g. BG 11.3.1986 (G. c. Confédération Suisse), BGE 112 II 118, consid. 5.e:
“La personne qui est elle-même victime d’une atteinte à un droit absolu […] est donc
directement lésée et peut demander réparation de son dommage à celui qui l’a causé. Peu
importe à cet égard que la chaîne causale soit plus ou moins brève, que l’atteinte soit
immédiate ou qu’elle frappe par contrecoup une personne qui était en relation avec la
victime immédiate.” [The person who is himself the victim of an infringement of an
absolute right […] is thus directly harmed and can demand that his harm be compensated by
the person who caused it. It does not matter for these purposes whether the chain of
causation is long or short, or whether the damage is caused to someone directly or rebounds
from the immediate victim so as to hurt someone in relation with the immediate victim]. See
also P. MANKOWSKI (note 6), at 311.

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Yearbook of Private International Law, Volume 17 (2015/2016) 481
provision that the law applicable to claims by primary victims needs to first be
determined and that only once this determination is made this same law
subsequently applies in order to determine who, and in particular which secondary
victims, may be deemed to be “entitled to compensation”.
The same reasoning has previously been applied when interpreting Art. 8(6)
of the Hague Convention on the Law Applicable to Traffic Accidents and Art. 8(6)
of the Hague Convention on the Law Applicable to Products Liability, both of
which have similar wording to that of Art. 15(f) of the Rome II Regulation.8
Thirdly, the ECJ refers to recital 16 of the Rome II Regulation, according to
which the applicable law shall be foreseeable to both parties. The Court stresses
that it should avoid a situation in which “the tort or delict is broken up into several
elements, each subject to a different law according to the places or the persons
other than the direct victim who sustain damage” (at No. 29).
It is indeed true that, were the place of injury suffered by secondary victims
to be determined autonomously (i.e. based on their domicile), then the law appli-
cable to their claims would hardly be foreseeable, neither before nor shortly after
the accident. Accidents that, at first sight, appear to be purely internal events could
then present a wide variety of surprises and uncertainty with respect to which is the
applicable law. A car accident in Geneva, Brussels or London between two cars
registered in Switzerland, Belgium or London respectively, with drivers and pas-
sengers all domiciled in the same country, could nevertheless have worldwide
implications regarding the applicable law, depending on the secondary victims’
domicile(s). The solution chosen by the ECJ leads, on the contrary, to the applica-
tion of the same law to damage claims brought by both primary (should they have
survived the accident) and secondary victims, hereby avoiding such a predicament.
Arguments relating to foreseeability of the applicable law, simplicity and con-
sistency thus all favour the application of the same law for both primary and sec-
ondary victims, which is indeed the solution favoured by the ECJ.9
C. Conclusions Regarding the Interpretation of Art. 4(1) and Arguably
also of Art. 4(2) of the Rome II Regulation
The Lazar decision thus clarifies that, under the Rome II Regulation, the law appli-
cable to actions brought by secondary victims is not to be determined inde-
pendently and autonomously. Instead, the law that would apply to a claim brought
8 E.W. ESSEN, Rapport explicatif, in Conférence de La Haye de droit international
privé, Actes et documents de la onzième session, 7 au 26 octobre 1986, Tome III, Accidents
de la circulation routière, p. 200, 213 on Art. 8(6); see also Proposition du Règlement du
Parlement européen et du Conseil sur la loi applicable aux obligations non-contractuelles
(Rome II), Bruxelles 22.7.2002, COM(2003) 427 final, Exposé des motifs, Art. 11 g), p. 25
f.; comp. Th. KADNER GRAZIANO (note 4), at 312 with further references. For the opposite
point of view, see P. MANKOWSKI (note 6), at 311.
9 Compare W. WURMNEST, EuGH: Bestimmung des anwendbaren Rechts für
mittelbare Schäden aus Verkehrsunfällen, Anmerkung zu EuGH, Urteil vom 10.12.2015,
LMK 2016, 376926; Th. KADNER GRAZIANO (note 4); for a critical appreciation, see
P. MANKOWSKI (note 6), at 312.

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by the primary victim also applies to actions brought by secondary victims.
Following the Lazar decision, this is clearly the case in situations where an action
brought by the primary victim is determined according to Art. 4(1) of the Rome II
Regulation and, consequently, where the law of the place of the accident applies.
Furthermore, actions brought by secondary victims should likewise be
examined under the law that would be applicable to an action brought by the pri-
mary victim if that law is determined pursuant to Art. 4(2) of the Rome II
Regulation, i.e. where the primary victim and “the person claimed to be liable […]
both have their habitual residence in the same country at the time when the damage
occurs”. Even if the secondary victims may live in a different country, their dam-
age claims should, in this manner, be governed by the law of the country in which
both the primary victim and the person alleged to be liable have their habitual resi-
dences. The second and third arguments invoked by the ECJ, and mentioned above
(B), are applicable here, as is the overriding objective of assessing primary and
secondary victim claims by the same law.10
D. Consequences for the Interpretation of Art. 4(3) of the Rome II
Regulation?
The question which may now be raised is whether the law that would be applicable
for an action by a primary victim would also be relevant for claims brought by
secondary victims when this law is not determined according to Art. 4(1) (desig-
nating the law of the place of the accident) or Art. 4(2) (designating the law of the
country of the habitual residence of the person alleged to be liable and of the pri-
mary victim), but by Art. 4(3) of the Rome II Regulation. According to this
provision:
“[w]here it is clear from all the circumstances of the case that the
tort/delict is manifestly more closely connected with a country other
than that indicated in paragraphs 1 or 2, the law of that other country
shall apply. A manifestly closer connection with another country
might be based in particular on a preexisting relationship between
the parties, such as a contract, that is closely connected with the
tort/delict in question.”
This issue can be illustrated with (and may indeed need to be resolved in) the tragic
Germanwings case, which has not yet been brought before the courts.11
10 W. WURMNEST (note 9). It would also be possible to reject the application of Art.
4(2) here because “the person claimed to be liable” and the secondary victim do not “have
their habitual residence in the same country at the time when the damage occurs”, and reach
the same conclusion through application of Art. 4(3) instead; for the reasoning regarding
Art. 4(3) see below D. and II.
11 Lawyers for families of British victims have recently announced plans to bring an
action against the flying school based in Arizona, USA, where the co-pilot was trained,
available at <www.theguardian.com/world/2016/mar/23/germanwings-crash-flight-school-
legal-action-uk-victims>.

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II. The Germanwings Case
A. Facts and Applicable Law According to the Montreal Convention
In March 2015, on a flight from Barcelona to Düsseldorf, an Airbus belonging to
the German airline Germanwings crashed in the southern French Alps. 144 passen-
gers from 17 countries, four crew members, the pilot, and the co-pilot who had
intentionally caused the accident lost their lives. Close family members of the
victims are now claiming compensation for the material and immaterial harm they
have suffered following the deaths of their loved ones.12
In the European Union (and for example, Switzerland), claims by air crash
victims are governed by the “Convention for the Unification of Certain Rules for
International Carriage by Air”, concluded in Montreal on the 28th May 1999 (the
Montreal Convention).13 Art. 17(1) (Death and injury of passengers […]) provides
that:
“The carrier is liable for damage sustained in case of death or bodily
injury of a passenger upon condition only that the accident which
caused the death or injury took place on board the aircraft or in the
course of any of the operations of embarking or disembarking.”
Furthermore, according to Art. 21(2):
“The carrier shall not be liable for damages arising under paragraph
1 of Article 17 to the extent that they exceed for each passenger
113,100 Special Drawing Rights if the carrier proves that: (a) such
damage was not due to the negligence or other wrongful act or omis-
sion of the carrier or its servants or agents; or (b) such damage was
solely due to the negligence or other wrongful act or omission of a
third party.”
12 A year after the crash, the case is in the media again. See in relation to the
tremendous pain suffered by secondary victims e.g. Stern Nr. 12/2016 of 17.3.2016, cover
story: “Todesflug Germanwings: «Ich habe meinen Glauben an Gott verloren» – Zum ersten
Mal sprechen die Eltern der Schüler aus Haltern” [“Fatal flight Germanwings: «I have lost
my faith in God» – the parents of the secondary school students from Haltern speak out in
public for the first time”], p. 36-50; see in 2015: Stern Nr. 30/2015 of 16.7.2015, p. 44-51:
“Germanwings-Absturz”. “Der Schmerz ist nicht auszuhalten – ein Mann trauert um seine
Tochter, seinen Enkel und seinen Schwiegersohn” [“Germanwings crash”. “The pain is
unbearable – a man mourns his daughter, his grandson and his son-in-law”]; see
also Der Spiegel Nr. 28/2015 of 4.7.2015, p. 38-39, available at <www.zeit.de/wissen/2015-
03/airbus-a320-germanwings-absturz-frankreich-faq>: “Wie eine Ohrfeige” [“Like a slap in
the face”] and: “Schmerzensgeld für Germanwings-Opfer” [“Bereavement damages for
Germanwings victims”]; and: Spiegel-Online (July 2015), available at <www.spiegel.de
/panorama/germanwings-absturz-interview-zum-schmerzensgeld-der-lufthansa-a-1043650.h
tml>; DIE ZEIT-Online (July 2015), available at <www.zeit.de/gesellschaft/zeitgeschehen
/2015-07/schmerzensgeld-loveparade-thomas-kadner-graziano>.
13 For the EU: OJ L 194, 18 July 2001, p. 0039–0049; for Switzerland: SR
0.748.411; (in force since 5.9.2005), available at <https://www.admin.ch/opc/fr/classified-
compilation/20031862/index.html>.

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Art. 17(1), in connection with Art. 21(2) of the Montreal Convention, thus provides
a system of strict liability for the carrier up to an amount of 113,100 Special
Drawing Rights (approximately 146,000 EUR or 160,000 CHF). Beyond this
threshold, claims in compensation are to be governed by Art. 21(2) of the Montreal
Convention, under which the air carrier’s liability is fault-based with a presumption
of fault. Given that in the Germanwings case, the co-pilot of the aeroplane has
caused the crash intentionally the airline does not benefit from any of the exonerat-
ing factors outlined under Art. 21(2) letters (a) and (b).
The Montreal Convention thus, in principle, contains an autonomous, inter-
nationally unified system of liability at the substantive law level. Art. 29 of the
Convention confirms this finding by stating that:
“[i]n the carriage of passengers […], any action for damages, how-
ever founded, whether under this Convention or in contract or in tort
or otherwise, can only be brought subject to the conditions and such
limits of liability as are set out in this Convention.”
However, this is to apply:
“without prejudice to the question as to who are the persons who
have the right to bring suit and what are their respective rights. In
any such action, punitive, exemplary or any other non-compensatory
damages shall not be recoverable.”
The question of who is entitled to compensation under the Convention, and for
which damage, is therefore largely left to whichever law is applicable pursuant to
the private international law rules of the forum (except that the Convention defini-
tively excludes punitive damages).14 In EU Member States, the question of whether
secondary victims are entitled to damages, and if so to what damages, is thus left to
the law that is applicable according to the Rome II Regulation.
B. Determining which Persons Are Entitled to Compensation Pursuant to
Art. 4 of the Rome II Regulation
Assuming that the primary victim had his or her habitual residence for example in
Germany, an action for damages brought by him or her against the airline
Germanwings, with its seat in Cologne, would be governed by German law, pursu-
ant to Art. 4(2) of the Rome II Regulation.
If the reasoning of the ECJ in the Lazar case is also applied to Art. 4(2) – as
suggested above – the same law (i.e. German law) would also be applicable to an
action brought by secondary victims for damages. This law is then to apply irre-
spective of the latter’s habitual residence.
14 Comp. e.g. F. REUSCHLE, Montrealer Übereinkommen, 2nd edn. Berlin 2011, Art.
17, Nos. 1 ff., Art. 17, Nos. 79 ff.; M.-Ph. WELLER/ B. RENTSCH/ Ch. THOMALE,
Schmerzensgeld nach Flugzeugunglücken, NJW 2015, 1909; L. CHASSOT, Les sources de la
responsabilité du transporteur aérien international, Genève 2012, Nos. 566 ff.

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C. A Case for Art. 4(3) of the Rome II Regulation?
The next question then is: Which law would apply to damage claims brought by a
primary or a secondary victim if the primary victim did not have his or her habitual
residence in the country in which the respondent airline had its seat (i.e. Germany),
for example if the primary victim had his or her habitual residence in Spain or
Switzerland?
1. The Law that Would Be Applicable to Any Action Brought by a Primary
Victim
Regarding actions brought by primary victims, the starting point for this analysis
would be Art. 4(1) of the Rome II Regulation. This provision would lead to the law
of the place of the accident. Given that in the Germanwings case the plane crashed
in France, Art. 4(1) would lead to French law. Art. 4(2) would not apply here since
the airline had its seat in Germany and the victims had their habitual residence in
other countries. Art. 4(3) of the Rome II Regulation then provides that:
“[w]here it is clear from all the circumstances of the case that the
tort/delict is manifestly more closely connected with a country other
than that indicated in paragraphs 1 […], the law of that other country
shall apply. A manifestly closer connection with another country
might be based in particular on a preexisting relationship between
the parties, such as a contract, that is closely connected with the
tort/delict in question.”
The primary victims were in a contractual relationship with the airline. Given that
the tort that deprived the passengers of their lives was closely connected with the
contract of carriage, the law of the place of the accident would thus be displaced by
the law governing this contract (accessory connecting mechanism or rattachement
accessoire). Thus, the question becomes “which law governs the contract between
the primary victim and the airline?”
The airline and the passenger formed a contract of carriage. In the Member
States of the EU, the law applicable to this contract would be determined by the
Rome I Regulation. Even if the passengers were to have concluded the contract for
purely private purposes, this contract would not be governed by the rules on con-
sumer contracts found in the Rome I Regulation (Art. 6). The reason is that,
according to Art. 6(4)(b) of the Rome I Regulation, the rules governing consumer
contracts do not apply to a contract of carriage “other than a contract relating to
package travel”.
The law applicable to a pure contract of carriage is instead governed by Art.
5(2) of the Rome I Regulation, which reads:
“To the extent that the law applicable to a contract for the carriage of
passengers has not been chosen by the parties […], the law applica-
ble shall be the law of the country where the passenger has his habit-
ual residence, provided that either the place of departure or the place
of destination is situated in that country. If these requirements are not

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met, the law of the country where the carrier has his habitual resi-
dence shall apply.”
In the absence of a choice of law clause, a contract of carriage between the airline
and a passenger who had his or her habitual residence in Spain would thus be gov-
erned by Spanish law (first sentence of Art. 5(2) of the Rome I Regulation), bear-
ing in mind that the flight departed from Barcelona and that the victim had his
habitual residence in Spain.
A contract of carriage between the airline and a passenger living in Switzer-
land would, on the other hand, be governed by German law. The reason for this is
that neither the place of departure nor the destination of the flight related to
Switzerland and therefore, pursuant to the second sentence of Art. 5(2) of the
Rome I Regulation, “the law of the country where the carrier has its habitual resi-
dence [i.e. German law] shall apply.”
Pursuant to the second sentence of Art. 4(3) of the Rome II Regulation, the
law governing the contract of carriage between the passenger (i.e. the primary
victim) and the airline could also govern any damage claim brought by a primary
victim in tort or delict. For any claim brought by a primary victim, the law govern-
ing the contract of carriage (in this scenario: Spanish or German law respectively)
could, should, and arguably would thus replace the law of the country where the
crash had occurred (i.e. French law).
2. The Law Applicable to a Claim Brought by a Secondary Victim: a Case
for the First Sentence of Art. 4(3)
What consequences would this have for claims brought by secondary victims?
There is no contract of carriage between the airline and secondary victims. With
respect to these parties, the result is that the second sentence of Art. 4(3) of the
Rome II Regulation (according to which the law governing a contract between the
parties also applies to tort claims between them, provided that there is a close link
between the contract and the tort) arguably does not apply here.15
Instead, in an action between these parties, the exception found in the first
sentence of Art. 4(3) of the Rome II Regulation could apply. It reads:
“Where it is clear from all the circumstances of the case that the
tort/delict is manifestly more closely connected with a country other
than that indicated in paragraphs 1 […], the law of that other country
shall apply.”
The exception found in the first sentence of Art. 4(3) has the objective of desig-
nating the law of a country that clearly has a closer link to the facts of the case than
the country whose law would be applicable under Art. 4(1), in particular if the
15 Here again, it could very well be argued that the applicable law is to be determined
by who is the primary victim, given that he or she has a contractual relationship with the
defendant, and that the law that would be applicable to a claim brought by the primary
victim also applies to the secondary victim. The proposal in this paper achieves the same
outcome through application of the first sentence of Art. 4(3) of the Rome II Regulation.

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Yearbook of Private International Law, Volume 17 (2015/2016) 487
application of the law of the place of the accident would lead to completely fortui-
tous or arbitrary results.16 The rationale behind such an exception clause is apparent
in the Germanwings case: the site where an aeroplane on an international flight
crashes is indeed often absolutely fortuitous and arbitrary, especially (but not
solely) for long-distance flights.
For primary victims, the accessory connection mechanism found in the sec-
ond sentence of Art. 4(3) avoids the application of a wholly arbitrary law to pro-
ceedings, since it is the law governing the contract of carriage which applies
(above, C.1.).
For secondary victims, the same result could be achieved if, as in the Lazar
case, the law applicable to a claim brought by a secondary victim were not deter-
mined independently and autonomously, but by applying the very same law to
(potential) actions by both primary and secondary victims. This result could be
achieved via the exception clause in the first sentence of Art. 4(3) of the Rome II
Regulation.17
In the Germanwings case, the application of the first sentence of Art. 4(3) of
the Rome II Regulation would lead to the application of Spanish law for any claims
brought by secondary victims whose loved one had his or her habitual residence in
Spain at the time of the accident, since a claim by the loved one (i.e. the primary
victim) would have, according to Art. 4(3), been governed by Spanish law (see
reasoning above). The claims of family members of victims who had lived in
Switzerland would, on the other hand, be governed by German law (given that
Switzerland, where these primary victims had their habitual residence, was neither
the country of departure of the flight nor of its destination, and given that the air-
line was established in Germany18).
The appropriateness of this solution can be illustrated by looking at a sce-
nario inspired by a case that the French Cour de Cassation had to decide some
years before the entry into force of the Rome II Regulation:19 a French travel agen-
cy had organised a tour of Cambodia. During an excursion on the Mekong, a canoe
carrying French tourists capsized. Four tourists were killed, others were injured.
The victims’ relatives brought an action against the travel agency for compensation
16 See on the rationale of the exception clause in Art. 4(3) e.g. R. PLENDER/
M. WILDERSPIN, The European Private International Law of Obligations, London 2009, Art.
4 Rome II Regulation, Nos. 18-107; J. VON HEIN, in G.-P. CALLIESS (ed.), Rome Regulations
– Commentary, 2nd edn., Alphen aan den Rijn 2015, Nos. 43 ff., 50 ff., 59 ff.
17 Several central policy arguments used by the ECJ in the Lazar case are also
relevant here: the aim of achieving a systematic interpretation of the Rome II Regulation in
harmony with Art. 15(f) of the Rome II Regulation; achieving foreseeability of the
applicable law both for prospective claimants and defendants in accordance with recital 16
of the Rome II Regulation; determining the law most adequate to decide the claims of both
first and secondary victims; and avoiding frictions and predicaments that may result if
different laws were applied to their actions.
18 See above C. 1.
19 French Cour de cassation, Pays-Fourvel c. Société Axa Courtage, Rev. crit. dr. int.
pr. 2004, 82, note D. BUREAU; Clunet 2004, 499, case note G. LÉGIER; JCP 2004, II 10006,
case note G. LARDEUX; Petites affiches 2003, 11, No. 255, case note B. ANCEL; IPRax 2006,
307, case note Th. KADNER GRAZIANO.

Thomas Kadner Graziano
Yearbook of Private International Law, Volume 17 (2015/2016)
488
of their material and immaterial harm due to the loss of their loved ones. French
law provided damages for bereavement (tort moral), but the law of Cambodia did
not.
Today, the Rome II Regulation would apply and actions of primary victims
who had survived the accident would be governed by French law pursuant to Art.
4(2) of the Rome II Regulation (if both the defendant company and the victims
were resident in France). If on the contrary the company had been established in
France and the primary victims in another country, the accessory connecting mech-
anism in the second sentence of Art. 4(3) of the Rome II Regulation could apply,
resulting in the application of the law governing the contract of carriage also to any
damage claim of these victims in tort.20
From the primary victim’s and the respondent’s point of view, applying the
law of the country of their common habitual residence – if they have their habitual
residence in the same country – or – if they have their habitual residence in differ-
ent countries – the law that governs their contract of carriage, would be more ade-
quate than applying the law of a far-away country in which the primary victims
spent only a small amount of time on holiday.
When it comes to determining the law applicable to a claim for compensa-
tion brought by a secondary victim, the starting point would be Art. 4(1) of the
Rome II Regulation, designating the law of the place of injury. According to the
ECJ’s ruling in the Lazar case, the relevant injury would be the one suffered by the
primary victims in Cambodia. Art. 4(1) would thereby lead to the application of
Cambodian law. Here again, however, the first sentence of Art. 4(3) could grant an
exception whereby the law applicable to any claim brought by a primary victim
could also be applied to claims brought by secondary victims in the same circum-
stances – a concept that would be fully in line with the rationale of the ECJ in the
Lazar case and with the arguments set out above.
It goes without saying that Art. 4(3) of the Rome II Regulation is always
applied on a case-by-case basis. Should the result under Art. 4(1) (i.e. the applica-
tion of the law of the place of the accident) be more adequate than the result pro-
duced by the exception clause found in Art. 4(3), the latter should evidently not be
applied (such a scenario may come about where the place of the accident is nearby,
but the seat of the airline in question is located in a far-away country whose law
would be applicable to the contract of carriage under the second sentence of Art.
5(2) of the Rome I Regulation).
20 If their contract had been a consumer contract in the sense of Art. 6 of the Rome I
Regulation, i.e. a contract relating to package travel within the meaning of Council Directive
90/314/EEC, and provided that the other requirements of Art. 6 of the Rome I Regulation
were also fulfilled, and had their residence not been in France, their contract would then be
governed by the law of the country where the consumers had their habitual residence.

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Yearbook of Private International Law, Volume 17 (2015/2016) 489
III. Conclusions
The decision of the ECJ in the Florin Lazar v. Allianz SpA case brings much
needed clarification regarding the law applicable to claims brought by secondary
tort victims.21
The judgment may have consequences that reach far beyond the scenario
submitted to the ECJ. In fact, the reasoning of the Court could very well be applied
not only to cases in which the rights of primary and secondary victims are deter-
mined pursuant to Art. 4(1) of the Rome II Regulation, i.e. where the law of the
country in which the accident occurred applies. This reasoning could, and arguably
should, be used – and the same conclusions be reached – where the law applicable
to a claim brought by the primary victim is to be determined by Art. 4(2) or Art.
4(3) of the Rome II Regulation, i.e. where the person alleged to be liable and the
primary victim (but not necessarily the secondary victim) have their habitual resi-
dences in the same country or where the law applicable to an action brought by the
primary victim is determined through the exception clause found in Art. 4(3).
The connecting factors in tort used in the Rome II Regulation are gaining
more and more ground worldwide: Arguably all PIL systems apply the lex loci
delicti rule in one way or another, either as a starting point in torts or as a subsidi-
ary rule. Arguably all modern systems also provide exceptions to this rule under
certain circumstances: many apply exceptions if both parties have their habitual
residence in the same country; some use an accessory connection mechanism in
torts similar to that found in the second sentence of Art. 4(3) of the Rome II Regu-
lation;22 others could achieve similar results by invocation of a general exception
clause.23 For these systems, the ECJ’s judgment (and the consequences that may be
drawn from this judgment in cases like that of Germanwings) may be an interesting
and valuable source of inspiration when it comes to determining the law applicable
to claims brought by secondary victims. The decision in the Lazar case could thus
be of interest well beyond Europe.
21 The Lazar decision does not necessarily exclude a secondary victim as “victim”
from the scope of jurisdiction under Arts. 13(2), 11(1)(b) of the Brussels I Regulation
(recast), comp. A. STAUDINGER, Indirekte Schadensfolgen aus einem Verkehrsunfall – Rom
II-Verordnung, Anmerkung zu EuGH, Urteil vom 10.12.2015, NJW 2016, 466.
22 See Art. 133(3) of the Swiss PIL Act providing: “When a tort breaches a legal
relationship existing between the tortfeasor and the injured party, claims based on such tort
are governed […] by the law applicable to such legal relationship”; similar provisions are to
be found in Art. 20 of the Japanese PIL Act and Art. 3127 of the Civil Code of Québec.
23 Comp. the Chapter on “Torts” with numerous references, in J. BASEDOW/
F. FERRARI/ P. DE MIGUEL ASENSIO/ G. RÜHL, Encyclopedia of Private International Law,
Cheltenham, Edgar Elgar Publishing, Vol. 2 (forthcoming).