In cross-border traffic accidents, the Rome II Regulation determines which law governs the amount of compensation for pain and suffering and other damages. Differences between EU countries are significant: Dutch law often provides higher compensation for non-material damages than, for example, German law.
Application in Practice
The main rule (Article 4(1)) refers to the law of the place where the damage occurred. An accident in Spain involving Dutch victims leads to the application of Spanish law, with lower compensation rates for pain and suffering. An exception under Article 4(2) may activate Dutch law if the parties share a common habitual residence.
Heads of damage include medical expenses, loss of income, and domestic assistance. The burden of proof varies: in jurisdictions influenced by Anglo-Saxon law, it lies with the perpetrator, whereas continental law imposes stricter requirements on victims.
Limitation periods differ; three years in the Netherlands versus two in Belgium. Courts strictly apply the Rome II Regulation, as seen in Case C-45/13 of the CJEU, where habitual residence was decisive.
Advice: Victims should document their habitual residence and the place of the accident to optimize their claims. Insurers use this information during negotiations.