The Rome II Regulation governs not only the applicable law but also procedural aspects such as the distribution of the burden of proof and limitation periods in personal injury cases. Article 15 distinguishes: substantive law (liability) is determined by Rome II, while procedural law (evidence) is governed by the law of the forum.
Distribution of the Burden of Proof
The applicable substantive law determines who must provide evidence. Under Dutch law, the presumption of fault often lies with the perpetrator; French law requires a stronger statement from the victim.
Limitation Periods
These fall under substantive law (Article 15), with variations: five years in Italy, three in Germany. Exemption due to incapacity depends on the applicable law.
In the case of Diamond Services (C-292/18), the Court confirmed that limitation periods are substantive in nature. For mixed claims, the law applies per individual claim.
In practice: A Dutch victim of a Greek accident has three years under Greek law; timely legal action is essential. Lawyers advise double-checking the limitation periods.