# C_2009044EN.01003202.xml

| 21.2.2009 | EN | Official Journal of the European Union | C 44/32 |
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21.2.2009

EN

Official Journal of the European Union

C 44/32

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 3 December 2008 — TNT Express Nederland BV v AXA Versicherung AG

(Case C-533/08)

(2009/C 44/53)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: TNT Express Nederland BV

Appellant:

Respondent: AXA Versicherung AG

Respondent:

Questions referred

| 1. | Must the second subparagraph of Article 71(2)(b) of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning: (i) that the rules on recognition and enforcement laid down in Regulation No 44/2001 yield to those of a special convention only if the rules of the special convention claim exclusivity; or (ii) that, in the event of the simultaneous applicability of the conditions for recognition and enforcement laid down in the special convention and those laid down in Regulation No 44/2001, the conditions laid down in the special convention must always be applied and those laid down in Regulation No 44/2001 are not to be applied, even though the special convention makes no claim to exclusive effect vis-à-vis other international rules on recognition and enforcement? |
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1.

Must the second subparagraph of Article 71(2)(b) of Council Regulation (EC) No 44/2001 (1) of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning: (i) that the rules on recognition and enforcement laid down in Regulation No 44/2001 yield to those of a special convention only if the rules of the special convention claim exclusivity; or (ii) that, in the event of the simultaneous applicability of the conditions for recognition and enforcement laid down in the special convention and those laid down in Regulation No 44/2001, the conditions laid down in the special convention must always be applied and those laid down in Regulation No 44/2001 are not to be applied, even though the special convention makes no claim to exclusive effect vis-à-vis other international rules on recognition and enforcement?

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| 2. | Does the Court of Justice have jurisdiction, with a view to forestalling divergent judgments in respect of the concurrence referred to in the first question, to interpret — in a manner binding on the courts of the Member States — the Convention on the Contract for the International Carriage of Goods by Road, signed in Geneva on 19 May 1956 (the CMR Convention), in so far as the matters governed by Article 31 of that convention are concerned? |
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2.

Does the Court of Justice have jurisdiction, with a view to forestalling divergent judgments in respect of the concurrence referred to in the first question, to interpret — in a manner binding on the courts of the Member States — the Convention on the Contract for the International Carriage of Goods by Road, signed in Geneva on 19 May 1956 (the CMR Convention), in so far as the matters governed by Article 31 of that convention are concerned?

| 3. | If the answer to the second question is in the affirmative and the answer to part (i) of the first question is likewise in the affirmative, must the rules on recognition and enforcement laid down in Article 31(3) and (4) of the CMR Convention be interpreted as meaning that that convention does not claim exclusivity and leaves room for the application of other international enforcement rules making recognition or enforcement possible, such as Regulation No 44/2001?
  Should the Court of Justice answer part (ii) of the first question in the affirmative and likewise answer the second question in the affirmative, the Hoge Raad also refers the following three questions for the further appraisal of the appeal in cassation: |
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3.

If the answer to the second question is in the affirmative and the answer to part (i) of the first question is likewise in the affirmative, must the rules on recognition and enforcement laid down in Article 31(3) and (4) of the CMR Convention be interpreted as meaning that that convention does not claim exclusivity and leaves room for the application of other international enforcement rules making recognition or enforcement possible, such as Regulation No 44/2001?

Should the Court of Justice answer part (ii) of the first question in the affirmative and likewise answer the second question in the affirmative, the Hoge Raad also refers the following three questions for the further appraisal of the appeal in cassation:

| 4. | In the event of an application for a declaration of enforceability, does Article 31(3) and (4) of the CMR Convention permit the court of the State addressed to examine whether the court of the State of origin had international jurisdiction to take cognisance of the dispute? |
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4.

In the event of an application for a declaration of enforceability, does Article 31(3) and (4) of the CMR Convention permit the court of the State addressed to examine whether the court of the State of origin had international jurisdiction to take cognisance of the dispute?

| 5. | Must Article 71(1) of Regulation No 44/2001 be interpreted as meaning that, in the event of the concurrence of the lis pendens rules of the CMR Convention and those of Regulation No 44/2001, the lis pendens rules of the CMR Convention take precedence over those of Regulation No 44/2001? |
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5.

Must Article 71(1) of Regulation No 44/2001 be interpreted as meaning that, in the event of the concurrence of the lis pendens rules of the CMR Convention and those of Regulation No 44/2001, the lis pendens rules of the CMR Convention take precedence over those of Regulation No 44/2001?

lis pendens

lis pendens

| 6. | Do the declaration in law applied for in the present case in the Netherlands and the action in Germany seeking compensation in respect of damage relate to ‘the same grounds’ within the meaning of Article 31(2) of the CMR Convention? |
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6.

Do the declaration in law applied for in the present case in the Netherlands and the action in Germany seeking compensation in respect of damage relate to ‘the same grounds’ within the meaning of Article 31(2) of the CMR Convention?

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(1)  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 2001 L 12, p. 1).

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