1. 1 Art 6(3) reads as follows:
2. “(a) The law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected.
3. When the market is, or is likely to be, affected in more than one country, the person seeking compensation for damage who sues in the court of the domicile of the defendant, may instead choose to base his or her claim on the law of the court seized, provided that the market in that Member State is amongst those directly and substantially affected by the restriction of competition out of which the non-contractual obligation on which the claim is based arises; where the claimant sues, in accordance with the applicable rules on jurisdiction, more than one defendant in that court, he or she can only choose to base his or her claim on the law of that court if the restriction of competition on which the claim against each of these defendants relies directly and substantially affects also the market in the Member State of that court.”
4. The Parliament rapporteur Ms Diana Wallis was particularly keen on suppressing the rule but her endeavours were not fully successful (even if, or perhaps precisely because, some of her other concerns were addressed in later versions of the Proposal). The history of this text is exhaustively narrated in her personal website, under http://www.dianawallis.org.uk/pages/rome2.html (accessed March 2009). There the reader may also find a wealth of related documentation.
5. Actually some scholars (most of whom were professors at German-speaking universities) had raised criticisms of the first version of the Rome II proposal on account of the absence of rules on liability arising out of breaches of competition law. See B Buchner, “Rom II und das Internationale Immaterialgüter-und Wettbewerbsrecht” [2005] Gewerblicher Rechtsschutz und Urheberrecht Internationaler Teil 1004, 1011; D Zimmer and A Leopold, “Private Durchsetzung des Kartellrechts und der Vorschlag zur ‘Rom II-VO’” (2005) 16 Europäisches Wirtschafts-und Steuerrecht Betrieb-Berater für Europarecht 149–54. And even more specifically, J Adolphsen, “The Conflict of Laws in Cartel Matters in a Globalised World: Alternatives to the Effects Doctrine” (2005) 1 Journal of Private International Law 151, 174.