Committeri v Club Mediterranee SA Generali Assurances Iard SA

For European choice-of-law purposes, whether an obligation is contractual is an autonomous question. A statutory obligation remains contractual where it enforces the proper performance of obligations freely undertaken under an existing contract, including where the claimant is a third-party beneficiary. A contractual choice-of-law clause covering booking conditions may govern the contract as a whole where those conditions regulate all material aspects of performance. A non-contractual characterisation would not automatically lead to a different result: displacement of the place-of-damage rule under article 4(3) of Rome II requires a manifestly closer connection and a high threshold.

The claimant was injured while taking part in a climbing activity during a team-building trip arranged by his employer, BNP Paribas Bank, with Club Mediterranee SA. He pursued a strict-liability claim against Club Med under article L211-16 of the French Code de Tourisme, with a consequential claim against its insurer, Generali Assurances Iard SA.

The central issues were whether the claim was contractual under Rome I or non-contractual under Rome II, whether the booking contract contained a choice of English law binding on the claimant, and, alternatively, whether the Rome II place-of-damage rule was displaced in favour of English law.

1. Characterisation. The claim under article L211-16 of the Code de Tourisme was contractual for the purposes of Rome I and Rome II. The issue was an autonomous European-law question, not one determined by the domestic classification of the obligation.
2. Mr Committeri was enforcing the proper performance of obligations arising from the BNP Club Med contract. That contract freely required Club Med to provide travel, accommodation and activities for BNP’s employees, including the claimant. The statutory obligation to compensate therefore derived from a contractual obligation and not from tort, unjust enrichment, negotiorum gestio or culpa in contrahendo.
3. The booking conditions and brochure contained a valid choice of English law. Although parties may select different laws for different contractual parts, the conditions addressed payment, modification, cancellation, responsibility and performance. A reasonable contracting party would therefore understand the clause to govern the contract as a whole.
4. Rome I consequently applied, and English law governed the claim. It was common ground that the claim failed under English law. The court did not determine whether a claim could be brought in France under the mandatory provisions of the French Code.
5. Alternative observation. If Rome II had applied, article 4(1) would still have led to English law on the facts as argued. Article 4(3) sets a high hurdle: the circumstances must show that the tort or delict is manifestly more closely connected with another country. The claimant’s residence and employment in London, the London location of the rope-holder, and continuing effects in London did not establish the necessary centre of gravity.
6. The action was dismissed.