The assessment of the nature of national law provisions which set the rules for the compensation for harm caused by the death of the closest person in the light of art. 16 of the Rome II regulation-
The assessment of the nature of national law provisions which set the rules for the compensation for harm caused by the death of the closest person in the light of art. 16 of the Rome II regulation-

comments in the context of a preliminary question submitted to the court of Justice of the eu following the decision of the Bulgarian supreme court of cassation of February 7, 2023 (case number c-86/23, HUK-COBURG-allgemeine Versicherung AG)

Summary/Abstract: Despite the fifteen-year period of validity of the “Rome II” Regulation, its application by the courts of the Member States is still, in some respects, a source of serious controversy. It manifests itself with particular intensity in Art. 16, devoted to overriding mandatory rules. This should be attributed to two factors. The first one is the resignation from including therein a legal definition of this category of norms, in contrast to Art. 9 section 1 of the “Rome I” regulation. The other is the phenomenon of a kind of “infla- tion” of the concept of overriding mandatory provisions, observed in the PIL. It manifests itself in the at- tempts to attribute such qualification to binding rules of national law, the nature of which do not indicatea conflict of laws element inherent in them, implying the need to apply them in addition to or instead of the applicable law. The case C-86/23 pending before the CJEU, as a result of a request for a prelimi- nary ruling submitted in the decision of the Bulgarian Supreme Court of Cassation of February 7, 2023, gives an excellent opportunity to bring up once again the issue of the proper way of understanding the concept of overriding mandatory rules in the context of Art. 16 of the Rome II Regulation, using as an example the norms applicable in Bulgarian substantive law, which regulate the principles of grant- ing compensation for harm caused by the death of a close relative. Looking at the matter in question from the perspective of the fifteenth anniversary of the regulation’s validity, the author recommends particular caution in applying Art. 16 and, at the same time, makes an attempt to formulate a proposal of an answer to the question referred to in a preliminary ruling.

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