The Court of Justice of the EU makes life easier for carriers

The first day of the New Year began with the preparation of a new entry in the context of New Year's decision to increase the activity on the blog, which – sorry to admit that – the last is not too high. Ideas for New Year's posting I had a lot, but issued just before Christmas, the judgment of the Court of Justice of the EU is, in my opinion so important, other topics that can wait. The Court of Justice has for the first time in the practice of interpretation of the CMR and the issue is having a great importance for practice. I warn you in advance, it will be a long time, but I assure, it's worth 🙂

What the court recognizes the case

The blog has already touched upon the issue of jurisdiction in matters relating to international road haulage or the, What the court has the right to recognize the matter. We wpisie To which court the expense of transport I wrote, that CMR there is an independent basis for determining the jurisdiction of the courts in a broad range likely to hear the case, and none of them is non-exclusive, which means, that's the reason may choose, where to refer the matter (sometimes out of court with up to four different countries). If we add to this, that both due to the content art. 29 CMR and differences of interpretation in individual countries, to, which country the case is heard, can be crucial to the outcome of, it is easy to understand, why on the basis of the CMR Convention created the phenomenon of. forum shopping.

First come first served?

Forum shopping is on finding the plaintiff such jurisdiction within the limits permitted by the Convention, that is optimal from the point of view of its position on the. Paradoxically, this is not always the jurisdiction of the country, from which the plaintiff. May in fact be, that in another country's internal rules or case law courts are for the plaintiff on the advantage, that they lose meaning when it inconveniences related to the conduct of proceedings in another country (information for all readers complaining about the rates of Polish lawyers - the rates in other countries can be many times higher 🙂 ). Of course, each case is different, but, for example, the Netherlands and the courts are considered to be friendly carriers, and in turn, e.g.. Germany favor the interests of the holders of more cargo.

Find a favorable court itself is not enough - the key may also be relevant time. According to the art. 31 paragraph. 2 CMR if the case is pending or has already been sentenced in a court in one country, You can not initiate any case for the same reason between the same parties.

Based on this principle carriers repeatedly tried to warn the victim's action for damages in transport and performed their chosen court to determine, they are not responsible for damage, or that their liability is limited. Upon hovering such dispute, in proceedings brought by the injured party payment they could use the argument, that if one case is pending, another can not be initiated.

Is matters are for the same reason?

Unfortunately, in various countries with the interpretation of Article CMR Convention. 31 paragraph. 2 CMR is far from unanimous. In several countries, (np. Austria, Netherlands, UK. UK) courts consider, that both the action to establish the absence or limitation of liability of the carrier and a claim for compensation for damage in transport matters are instituted for the same reason. With this interpretation, however, does not agree German Supreme Court (Federal Court), which in its judgments (m.in. I ZR 102/02 i I ZR 294/02) repeatedly stated, that a claim for payment and to establish not have identical character within the meaning art. 31 paragraph. 2 CMR. What is interesting to know the German Supreme Court, the Court of Justice of the EU took the opposite position (recognizing the identity of such cases), interpreting similar provisions prohibiting concurrent proceedings under the Brussels Convention - the predecessor of the Brussels I Regulation. However, the Bundesgerichtshof held, that the interpretation of the CMR Convention is an autonomous and achievements of the Court's jurisprudence on other provisions not in this case irrelevant.

The First Avenger at the Court of Justice of the EU

As you might guess, Such differences have lead to problems. In cases involving the payment of damages actions brought before German courts by victims, carriers sued unsuccessfully invoked the fact that earlier initiation of the investigation to establish in another country. German courts, referring to the position of his Supreme Court, such allegations simply omitted.

One of these cases came before the Court of Justice of the EU, what I wrote in an entry Enforcement of foreign judgments in matters relating to the CMR Convention. In that decision, however, it was primarily about the relationship between the Convention and CMR Regulation 44/2001 known as the Brussels I Regulation fundraiser governing jurisdiction and the recognition and enforcement of judgments between the EU countries. In particular, the Court resolved the issue, or ruling on the execution of a judgment of a foreign court (in this case is the German court, who recognized its jurisdiction despite earlier opening of the case for the establishment by the Dutch court) court (In this case, a Dutch) has the right to examine, whether the foreign court had jurisdiction to give a ruling, which would be enforceable. CMR Convention anything about it because she did not say, and Regulation 44/2001 as a rule forbidding such a study.

Court in judgment 04.05.2010 r. C-533/08 TNT Express gave quite enigmatic ruling, wherein the one hand refused to interpret the provisions of art. 31 paragraph. 2 i 3 CMR, Recognizing the, that there is no right to it, on the other hand adopted, that the rules for the recognition and enforcement of judgments laid down in international conventions that are specific provisions in relation to Regulation 44/2001 may be used in EU countries only in the situation, if on the basis of at least as favorable as Regulation ensure the free movement of judgments and mutual trust.

Court - by refusing to interpret a provision art. 31 paragraph. 2 CMR - But did not answer the key question (although it has been formulated by the court making the preliminary ruling), whether the procedure to establish the absence or limitation of liability of the carrier is the treatment for the same reasons as the procedure for adjudication of the carrier compensation.

Another Dutch-German dispute

Business, which this time went to Court, again is a Dutch-German roots. Canon transport company commissioned its products from the Netherlands to Germany two Dutch companies (Nippon Express i Nippon Euro), which then commissioned the Dutch carrier transport (Inter-South Transport), who benefited from the services of subcontractors, which was not the cause of the importance of. In the course of carriage parts have been stolen goods, with the result that the Dutch company Nippon principal paid in a settlement amount 500.000 Euro lined ultimately by the insurance (English this time - Nipponkoa Insurance Co.. Ltd).

The insurance company appealed to the German court for payment of the amount paid against the Dutch carrier, seeking damages in the full amount, arguing, that the prerequisites for the abolition of the limit of compensation resulting from art. 23 paragraph. 3 CMR (8,33 SDR Sat kg). Carrier in response to a lawsuit raised, that on the same issue in other proceedings instituted at the request of its non-carrier Dutch court judgment stated limitation of liability of the carrier to the amount of 8,33 SDR per kg of stolen goods. The insurance company was aware of the judgment but claimed, that this is not the case brought for the same reason, so art. 31 paragraph. 2 CMR it not apply. On the other hand, this provision shall prevail over the provisions of Regulation 44/2001 So the German court can not refuse its jurisdiction on the basis of art. 27 the regulation - This was in fact the current line of case-law of the Bundesgerichtshof.

It is worth to note the typical example of forum shopping in the implementation of insurance. Despite the fact that the defendant was a Dutch company, and the plaintiff was in no way affiliated with Germany, he applied to the German court (what he could do, because in Germany was to be a supply of goods), because the current line of case-law of German courts gave him a chance to have a victory.

German court asks the Court

This time, however, the plaintiff's assumption proved to be unsuccessful. German court broke for the German case-law of the Supreme Court and the case-law criticizing, asked the Court of Justice of the EU with the two questions:

– whether the provisions of Regulation 44/2001 opposed to the interpretation of the Convention contains specific provisions on jurisdiction only in an autonomous manner, instead of taking into account the objectives and requirements of Regulation,

– whether the provisions of the Regulation are opposed to such an interpretation of the CMR Convention, according to which an action to establish resolved in one country does not preclude actions for fulfillment of the transferred benefits later in another Member State

It is clear, that the questions were worded much better than in the previous case before the Court. Unlike the Dutch court German court did not ask for it, how to interpret the CMR Convention, but asks how to interpret European law, ie. whether their correct interpretation precludes the application of the provisions of the CMR Convention in specific interpretation. In practice, the Court, and so answering this question, interpret the provisions of the CMR Convention, but with such a question, the, has the right to do so. When asked about the interpretation of the CMR Convention could not do (although there have been cases, the Court wrongly worded question seeing them himself przeformułowywał, stating, the court asked a different question than the one, that actually wanted to ask).

Opinion of the Court

Judgment of the Court of 19.12.2013 r. Case C-452/23 Nipponkoa Insurance did not leave any doubt. In answer to the first question, said, that in principle the answer to not included in the previous judgment of 04.05.2010 r. and confirmed, that Regulation 44/2001 opposed to such an interpretation of an international convention, which does not provide for conditions at least as favorable as those provided for by the Regulation respecting the purposes and principles of the Regulation.

On the other hand, with respect to the second question, the Court recalled its previous case law relating to the same as Article. 31 paragraph. 2 CMR of the Brussels Convention (the judgment C-406/92 Tatry) and Regulation 44/2001 (the judgment C-133/11 Fischer) stating, an action to establish that relates to the same claims, every claim for payment. Consequently, the Court held, that Regulation 44/2001 opposes this meaning of Article. 31 paragraph. 2 CMR, which allows for the initiation of the payment in one Member, when in another country has been initiated to determine the matter of the lack of obligation to pay.

The consequences of the judgment

It is difficult to overestimate the importance of this judgment of the Court.

First, the Court, this time without any doubt tipped, that the provisions of Regulation 44/2001 take precedence over the provisions of the CMR Convention on the impact of the initiation of the case and the recognition and enforcement of judgments. This means in practice, the CMR Convention priority will be given only on matters relating to the determination of jurisdiction.

In the second sentence gives the green light to all carriers, warned that the institution of an action against them for damages and performed the most favorable for themselves the court with a claim for exemption or limitation of liability. This poses a serious danger to all victims, who will not have the comfort of waiting time of submission of an application for payment until the period of limitation expired. Any delay in the initiation of the procedure can now be used by the opponent. Of course, similar actions are possible and before the judgment of the Court, but at present there is no danger, that a court interprets Article. 31 paragraph. 2 CMR at the expense of the person, who first filed a lawsuit to court, how did that to date the German courts.

For those interested in – will be more 🙂

Inevitably, the presentation of all aspects of the judgment was not possible here, because it would take a lot more space, So prepare on this issue more extensive research article. Of course, let you know, as has already been published.