Accident abroad with compatriot: which law is applicable?
Decision of Saarbrücken Higher Regional Court (Germany) of 06.02.2020
The defendent drove in the right lane during stagnant traffic. The plaintiff wanted to drive onto the highway coming from the entrance lane. There was a collision when the plaintiff drove in front of the defendant's truck.
If the road users involved in a foreign accident - here in Luxemburg - have their permanent place of residence in Germany, liability for the traffic accident is based on German law (art. 4 para. 2 ROME II Regulation; the alternative clause of art. 4 para. 3 ROME II Regulation does not apply).
On the other hand, the fault contributions to be included in the liability evaluation are assessed according to the road traffic law applicable at the scene of the accident, in the present case the law of Luxemburg (Art. 17 ROME II Regulation).
Wether an evidence needs to be considered to the disadvantage of one participant must be decided according to the applicable substantive law. This means that only the evidence connected with the traffic rules valid at the place of accident in Luxemburg can be applied.
If foreign substantive law is not determined by the first judicial instance, this constitutes a serious procedural error and therefore a reason to refer the decision back to the first court.