Despite the crucial role played by transports in the sound development of the internal market, the new EU Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels Ia Regulation”) does not clarify the relationship between its own rules and the provisions on jurisdiction or recognition and enforcement of judgments laid down by the international conventions in the transport sector.
Art. 71 of the Regulation (which exactly mirrors Art. 71 of the previous Regulation No 44/2001) simply states that it “shall not affect” the international conventions on particular matters to which Member States are party. But clear criteria are still missing for the purposes of establishing whether a transport convention falls within Art. 71 or not.
As a matter of fact, the EU Court of Justice (“ECJ”) has laid down a test establishing the conditions upon which – pursuant to Art. 71 – issues of jurisdiction or recognition and enforcement of judgments are to be dealt with in accordance with an international convention instead of with the Regulation. However, the said test (i) does not seem apt, as such, at ensuring that degree of predictability as to the courts having jurisdiction and therefore legal certainty for litigants, which – as remarked by the ECJ itself – should underlie judicial cooperation in civil and commercial matters; (ii) has been conceived with specific regard to the case when issues of jurisdiction or recognition and enforcement of judgments fall within the scope of application of both the regulation and the CMR convention; hence, it is actually uncertain whether the ECJ would follow the same approach in relation to other transport conventions.
On the other hand, the so called “disconnection clauses” – which can be almost invariably found in the acts whereby the EU has acceded to the various transport conventions and which serve the purpose of granting the primacy of EU law – raise problems as to how they should operate in practice vis-à-vis the Brussels Ia Regulation. Far from clear is, for example, how such clause is meant to govern the relationship between the EU rules and the COTIF.
In the light of the above still open issues, the paper is aimed at (i) ascertaining whether the ECJ, in setting out the terms whereby the Regulation should interface with the transports conventions, will either stick to the approach so far consolidated or revise it with a view to making it consistent with the principles of legal certainty and predictability as to the court having jurisdiction, (ii) clarifying the conditions that must be met for a given transport convention to be deemed falling within the scope of Art. 71 of the Regulation; (iii) assessing how to handle the relationship between the Regulation and the transport conventions not covered by Art. 71; (iv) examining whether such relationship is governed by a specific clause (disconnection clause); (v) searching for an interpretative solution which permits, even in the absence of such a specific clause, to establish with a reasonable degree of certainty which provisions – among those of Brussels Ia and those laid down in the relevant transport convention – are to be applied for the purposes of establishing jurisdiction or recognising the effects of judgements in the case at stake.
