A literature review: Enforcement of foreign judgments in matters relating to the CMR Convention

Inspired by the great a blog for almost a tourist I decided to introduce a new category of alert: “A literature review”. I'll be in the ring or discuss emerging (not so often) scientific publications devoted to the law of a transport (both books and in scientific journals). Some readers of this series might seem too theoretical, but contrary to appearances, the views delivered by representatives of science often have a great impact on the practice. This fact is not often referred to by the courts in their rulings, which in turn directly affects the transport industry. Hence, you should know, what are the latest trends in the doctrine. Today, the first entry in this category, the enforcement of foreign judgments in relation to the CMR Convention.

Introductory remarks

Transportation Law is a subject not often show the publication in scientific journals. Even more rarely can meet such publications by Polish authors in prestigious international scientific journals devoted to the law of a transport. With the more pleasure I have read the recent article by Dr.. Fri Krzysztof Wesolowski. “The unclear relations between CMR and European Union law in respect of jurisdiction and enforcement of foreign judgements” (Unclear relationship between CMR and European Union law concerning jurisdiction and the enforcement of foreign judgments) published in this issue 2/2011 European Transport Law. Article refers to a very important issue of enforcement of foreign judgments handed down in matters relating to the CMR Convention in the context of last year's ruling by the Court of Justice of the European Union (Poland is still commonly called ETS).

The case before the Dutch court

In the event of disputes arising from the implementation of road transport based on the CMR Convention, it is not uncommon, that a judgment given in one country must be enforced in another country. There is then a question, on what basis the decision of the courts of one country may be recognized and enforced in another country. Convention itself regulates the issue in art. 31 paragraph. 3 forming, that the judgments of the courts of one country after completion of necessary formalities shall be enforceable in another country, and formalities may not include the revision of the case. The problem is that, that in addition to the CMR Convention in all countries of the European Union, the provisions of Regulation 44/2001 in matters of jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, that the rules on which a decision issued in one EU country can be recognized and enforced in another EU country. In one case examined by the Dutch court (Rechtbank te Utrecht w sprawie TNT Express Nederland BV about AXA Insurance Ltd) was doubt as to, What is the relationship between the EU Regulation and the CMR Convention. Dutch court because he was not sure, and recognizing the request for enforcement of the judgment of the German court, has the right to examine, whether the German court had jurisdiction to hear the case. CMR Convention is not clear on this issue – there is no explicit provision, This would entail the possibility, but also the lack of a clear prohibition of such a study. Such a ban is based on Article. 45 the Regulation No. 44/2001, but the Dutch court had doubts, or it can be found on the application, because according to Article. 71 regulation does not conflict with the provisions of the Convention, which Member States are parties and which, in specific matters.

Question to the ECJ and the judgment of the Court

Not being able to independently resolve its doubts, Dutch court asked the Court of Justice with a number of questions m.in. of applicability for the CMR Convention of Regulation No 44/2001, and the, whether the Court has the power to make a binding interpretation of the CMR. Tribunal judgment of 04.05.2010 r. Case No. C-533/08 answered questions and said the Dutch court, that the specific provisions of the Convention such as the CMR Convention on jurisdiction and enforcement of judgments shall apply only if they are highly predictable, facilitate the proper administration of justice in order to avoid as far as possible the risk of parallel proceedings and provide the conditions as favorable as Regulation No 44/2001 the free movement of judgments in civil and commercial matters and mutual trust in the administration of justice in the Union. Moreover, the Court found, that has no authority to interpret the CMR Convention.

The sentence was somewhat surprising, not only because the Court has generally not responded specifically to the questions except one relating to the possible interpretations of the CMR Convention, but also ruled contrary to the Advocate General. Meanwhile, the vast majority of the Court's decisions coincide with the suggestion of the Advocate General in preparation for a specific legal opinion of the Court on the question, the diagnosis. From the judgment it is difficult to infer, or in cases concerning the conditions of the CMR Convention recognition of judgments from another EU country stem from the Convention or Regulation. It can be concluded, that may work only if the Convention, if the provisions of regulation are more liberal, when it comes to recognition of judgments. This would lead to the conclusion, that the court deciding on the recognition of foreign judgment has no right to examine, whether the court, that issued the order had jurisdiction under the Convention. Thus they are shaped for the recognition of judgments in Regulation, and recognition of judgments under the Convention in light of the judgment can not be less favorable than under Regulation.

Critical commentary

In the aforementioned article, the author criticizes the judgment of the Court. On one hand, draws attention to the ambiguity of the judgment – its actual content, you can only guess, but lacked a clear answer to the questions the Dutch court. On the other stresses, that if the judgment were to be understood in this way, that even in matters of recognition of judgments rendered on the basis of the CMR Convention, which are explicitly dealt with in the Convention, should examine, whether the provisions of regulation should not be applicable due to a number of factors described by the Court, This judgment would be a significant departure from existing case-law, stressing the autonomy of the special convention and represent, Regulation No 44/2001 can be applied only in cases not in the Conventions, and not in any case.

Personally, I agree with the author, that the Court has not stood in this case to the occasion and gave judgment, which is more complicated than explained things. Because the Court used the concepts of strongly unspecified, which can cause considerable practical difficulties. The criticism of the alleged position of the Court, that the regulation will apply in every situation, also described in the Convention, if only it will be advantageous from the viewpoint of the flow of decisions, I would be cautious, While I understand the author's view, that hinder the application of the Convention.

Regardless of personal views in his voice should appreciate excellent analysis of the decision of the Court especially in the context of his previous convictions. The only shortcoming of the article remains a poor English translation of the text, which are very difficult to read, but this does not change my overall positive assessment of the publication.

At the end of a curiosity for those readers, who persevered to the end of the text 🙂 The described case is an example of this, be sure that the declared value of the shipment of particular value. The cause of the dispute was in fact the loss of computer equipment weighing 12 kg and the 50.000 Euro. The carrier has declared the payment of damages in the amount of 99,96 SDR means a few hundred gold. Fortunately for the victim the court ultimately found the behavior of the carrier for gross negligence and awarded full compensation. Not always successfully, however, demonstrate such circumstances and it may be, that for the missing goods entitled to receive only a fraction of its value.