Summary
The applicant filed an application for payment against a tenant who rented an apartment situated in Austria. The defendant caused effusion, which damaged the property; as a result the applicant incurred repair expenses.
The court of first instance stated that under the Rome II Regulation, Polish law shall apply. The appellate court found that the application for payment does not arise out of the delict, but from the fact that the applicant had already satisfied a claim which should have been satisfied by the defendant. Consequently, the court of second instance stated that, according to Art. 20 of the Rome II Regulation, the question of the applicant’s right to demand compensation from the defendant shall be governed by the law applicable to the defendant’s non-contractual obligation towards the creditor. In this case the non-contractual obligation had arisen out of the delict i.e. effusion from the premises. Therefore, in accordance with Art. 4 par. 1 of the Rome II Regulation, Austrian law should have been applied.