The Court of Justice of the European Union has handed down several preliminary rulings relating to transport law and the interaction of carriage conventions with the Brussels I Jurisdiction Regime.[1] While the general rule is clear, that the Brussels I Jurisdiction Regime is to step back to allow application of the specialised rules of specialised conventions,[2] the exact application of this principle has been fraught with difficulty. This article sets out the progress made by analysing the interaction of the regimes and argues that more European case-law is needed to clarify the boundaries and to ensure an EU-wide uniform approach.
In Case C-406/92 The Tatry,[3] the European Court of Justice, as it then was, clarified that the Brussels Regime only stood back insofar as the specialised convention provided rules on the matter. Where, as in the case of The Tatry, the specialised convention did not provide for lis pendens rules, the Brussels I Regime would not be precluded and instead would supplement the specialised convention. The interaction of a specialised convention, here the CMR, with the Brussel Regime was put to another test in Case C‑533/08 TNT Express Nederland BV v AXA Versicherung AG,[4] where the European Court suggested that, as between European Member States, core European Union principles which underlay judicial co-operation in civil and commercial matters in the European Union had to be observed nevertheless, even where a specialised convention was applicable. Guidance on how exactly this was to happen had however not been provided and left a dangerous lacuna to be exploited. This is, for example, evident from the argumentation advanced in the recent English case of BAT v Exel[5] where the claimant suggested the ruling of TNT v AXA necessitated the importation of the EU jurisdictional rules to supplement the CMR in order to comply with an alleged European Union principle of being able to sue all defendants in the same court. The case is currently pending before the Supreme Court.
The article argues that a liberal adaptation of such reasoning and development of “European Union principles” to expand or amend jurisdictional rules of specialised conventions should be avoided, due to the danger of creating unacceptable uncertainty as to which courts had international jurisdiction. Instead, the ruling of TNT v AXA should be interpreted narrowly in its specific context and before expanding and thus weakening jurisdictional rules, the tools available to enhance certainty and predictability, the seeking of preliminary references, should be used. While the European Court initially suggested that interpretation of a specialised convention was outside its mandate, the interpretation of Article 71 of the Brussels I Regulation is within its remit, thus giving scope for further guidance on the interaction.
Indeed, relevant further clarification from the European Court was successfully sought in CaseC-452/12 Nipponkoa Insurance v Inter-Zuid Transport.[6] Here, the Court of Justice provided that Article 71 of the Brussels Regime directed interpretation of the rules of the CMR in an EU-compatible manner, yet the rules of the CMR were applied. This meant in the particular case, that an action for negative relief could not be interpreted as not being the same cause of action as an action for indemnity, with the effect that a lis pendens situation arose which barred any further action. Equally Case C-157/13 Nickel & Goeldner Spedition GmbH v “Kintra” UAB[7] suggests that differences between the specialised conventions and the Brussels I Regime are to be accepted and not in themselves a reason to dis-apply convention rules which have priority. Here the Court of Justice evaluated the different rules of the CMR and the Brussels I Regime for claims arising out of the carriage of goods and found the CMR rules to be compatible with EU principles. It was acceptable that the claimant may have more choice of fora under one regime compared to the other.
Ensuring that core EU principles are met may thus not lead to much of a change after all, but may require a Member State’s court to let go of a domestic interpretation of a convention’s rules where EU principles on the relevant notion are established, such as in the case of lis pendens. Should a court nevertheless wish to depart from the provisions of a specialised convention, seeking a preliminary ruling is possible and paramount to uphold predictability and certainty for litigants in the EU.
[1]The EU Regulation 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L351, 20.12.2012, p1, which as of 10th January 2015 has replaced Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L012, 16.01.2001, p1, the latter superseding since 1 March 2002 (and until 9th January 2015) the former Brussels Convention of 27th September 1968 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
[2] See Art 71 of the EU Regulation 1215/2012 and Art 57 of the Brussels Convention of 27th September 1968.
[3] C-406/92 Owners of Cargo Lately Laden on Board the Tatry v Owners of the Maciej Rataj (The Tatry) [1994] ECR I-5439; [1999] QB 515.
[4] Case C‑533/08 TNT Express Nederland BV v AXA Versicherung AG [2010] ILPr 35.
[5]British American Tobacco Switzerland SA and others v (1) Exel Europe Ltd and (2) H Essers Security Logistics BV and others and British American Tobacco Denmark A/S and others v (1) Exel Europe Ltd and (2) Kazemier Transport BV [2013] EWCA Civ 1319; [2014] 1 Lloyd’s Rep. 503 on appeal from [2012] EWHC 694 (Comm); [2013] 1 W.L.R. 397; [2012] 2 Lloyd’s Rep. 1.
[6] Case C-452/12 Nipponkoa Insurance Co (Europe) Ltd v Inter-Zuid Transport BV [2014] ILPr 10.
[7]C-157/13 Nickel & Goeldner Spedition GmbH v “Kintra” UAB[2015] ILPr 1.
