Summary
In this case, the Polish company, filed an action for payment, known as a contractual penalty. The courts of first and second instance stated that the application is groundless, having regard to the provisions of the Convention on the Contract for the International Carriage of Goods by Road. However, the applicant stated that his claim is justified under Polish provisions. The court found that that the parties agreed that the provisions of the civil code shall be applicable, but they did not specify the civil code of which state shall be applied. Consequently, Article 3 par. 1 of the Rome I Regulation, which governs the implied choice of law, could not have been applied. The court of second instance found that, according to Art. 5 par. 1 of the Rome I Regulation, a contract of carriage shall be governed by Italian law; this is the law of the country of the place of delivery as agreed by the parties. The problem of the law applicable was irrelevant because the provisions of the CMR convention covered the issue of contractual penalty.