When a carriage convention and an EU Regulation both offer provisions on the recognition and enforcement of foreign judgments, which of the two prevails over the other? In this case, the Advocate General swayed in favour of the Brussels Regulation.
Earlier this year, the European Court of Justice was consulted by a Dutch court which sought a preliminary ruling on the issue of whether the CMR Convention took precedence over Council Regulation (EC) No 44/2001 of 22 December 2000 on Jurisdiciton and the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters ("the Brussels Regulation").
The question arose out of an international road carriage incident. TNT, the road carrier of goods which failed to arrive at their destination, was keen to limit its liability in respect of this loss and sought a declaration before the courts in Rotterdam that its liability towards the insurers of the goods, AXA, did not extend beyond the limits set out under the convention governing the international carriage of goods by road, CMR1.
In parallel proceedings before the courts in Munich, AXA sought compensation from TNT, beyond the CMR limits, for the loss suffered by the assured of the goods.
TNT objected to the Munich proceedings on the basis that there was already a pending law suit in Rotterdam ("lis pendens"). However, the Munich court rejected TNT's argument, stating that the claim for compensation in Munich, and the application for a declaration on the limitation of liability in Rotterdam, were two separate issues.
AXA then obtained from the Dutch court an order for the enforcement of the German court judgment under Council Regulation (EC) No 44/2001, which TNT contested, arguing that the CMR provisions on the recognition and enforcement of foreign judgments overrode the Brussels Regulation.
To help clarify the point, the Dutch court approached Advocate General Kokott for guidance on the question of precedence between CMR and Council Regulation (EC) No 44/2001.
Having reviewed the matter, the Advocate General indicated that, although she was not competent to interpret the CMR Convention, she must nevertheless provide guidance to the Dutch court by interpreting the Brussels Regulation2 and taking note of the relevant CMR provisions3. She concluded that the CMR Convention did not set out rules on the recognition and enforcement of foreign judgments which were designed to be exclusive, and to preclude the application of the Brussels Regulation. The provisions of the Brussels Regulation on the Recognition and Enforcement of Foreign Judgments therefore prevailed.
It remains to be seen how the Dutch court will decide on the matter although, by current trends, the opinions of the Advocate General are usually followed by the European courts.
Footnotes
1. The Convention on the Contract for the International Carriage of Goods by Road
2. Article 71(2)(b)
3. Articles 31(3) and (4)
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