Case number and/or case name
C-533/08 TNT Express Nederland BV v AXA Versicherung AG (Grand Chamber) [2010] ECR I-04107
Referring court and Member State
Netherlands, Third Instance, Hoge Raad der Nederlanden
Summary
This case on Art 71 of Brussels I relates to the Convention on the Contract for the International Carriage of Goods by Road (CMR). It was referred to the CJEU in proceedings between TNT and AXA concerning the enforcement, in the Netherlands, of a German judgment ordering TNT to pay compensation for the loss of goods in the course of international carriage by road. Siemens and TNT entered into a carriage contract from the Netherlands to Germany. The goods were not delivered to their destination and TNT brought proceedings against Siemens’ insurer, AXA, in the Netherlands for a declaration that TNT was not liable for any damage resulting from the loss of the goods with the exception of an amount stated in Art 23 of CMR. After the initiation of this action, AXA brought an action against TNT in Germany for compensation for the loss suffered by Siemens. TNT contended that, under the lis pendens rule in Art 31(2) of CMR, the German courts could not hear AXA’s action. The Dutch court dismissed the action before it and TNT appealed against this judgment. The German court gave two judgments ordering TNT to pay compensation. AXA requested in the Netherlands a declaration of enforceability of the German judgments under Brussels I. After that application had been allowed, TNT requested the court to set aside the order and to refuse enforcement of the judgments or, at least, to defer a decision on the application for their enforcement until the appellate court’s ruling. It stated that recognition of the German judgments was manifestly contrary to public policy in the Netherlands because under the lis pendens rule in Art 31(2) of the CMR, the German court lacked jurisdiction to hear AXA’s action. AXA submitted that, under Art 35(3) of Brussels I, the Dutch court could not review the German court’s jurisdiction. The court dismissed TNT’s application regarding enforcement. TNT appealed on a point of law before the referring court which asked questions to the CJEU. The CJEU firstly noted that the dispute between TNT and AXA falls within the scope of both the CMR and Brussels I, and that its interpretation on the Brussels Convention should be taken into account. The first and fifth questions were on the applicability of the rules governing jurisdiction and recognition and enforcement in the CMR under Art 71 of Brussels I. The CJEU observed that it is apparent from the wording of Art 71 that the legislature provided for the application of the specialised Conventions in the event of there being concurrent rules. It recalled that it had already found in Tatry that the rules laid down in specialised Conventions have the effect of precluding the application of the provisions of the Brussels Convention relating to the same question. However, the CJEU considered Recitals and stressed that Art 71 cannot have a purport that conflicts with the principles underlying the legislation of which it is part. It ruled that the rules governing jurisdiction, recognition and enforcement that are laid down by a Convention on a particular matter, such as the lis pendens rule set out in Art 31(2) of the CMR, and the rule relating to enforceability set out in Art 31(3) therein, apply provided that they are highly predictable, facilitate the sound administration of justice and enable the risk of concurrent proceedings to be minimised and that they ensure, under conditions at least as favourable as those provided for by the Regulation, the free movement of judgments in civil and commercial matters and mutual trust in the administration of justice in the EU (favor executionis). The CJEU held that it does not have jurisdiction to interpret the provisions of the CMR. The CJEU should have respected the clear wording of Art 71 of Brussels I because the Recitals they refer to were not designed to place any limits on the operation of the specialised Conventions in intra-EU cases and indeed Recital 25 explicitly states that the “Regulation should not affect” Art 71 Conventions.