Opinion of the Advocate General — ECLI:EU:C:2009:319
Date: 2009-05-19
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Rome Convention of 19 June 1980
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Convention on the law applicable to contractual obligations – Applicable law in the absence of choice – Connecting criteria (Rome Convention of 19 June 1980, Art. 4(4)) 2. Convention on the law applicable to contractual obligations – Severance of the contract for the purpose of determining the law applicable (Rome Convention of 19 June 1980, Art. 4(1) and (4)) 3. Convention on the law applicable to contractual obligations – Applicable law in the absence of choice – Connecting criteria – Obligation to determine the applicable law on the basis of the presumptions set out in Article 4(2) to (4) (Rome Convention of 19 June 1980, Art. 4(2) to (5)) 1. The connecting criterion provided for in the second sentence of Article 4(4) of the Rome Convention on the law applicable to contractual obligations of 19 June 1980 applies to a charter-party, other than a single voyage charter-party, only when the main purpose of the contract is not merely to make available a means of transport, but the actual carriage of goods. In order to ascertain that purpose, it is necessary to take into consideration the objective of the contractual relationship and, consequently, all the obligations of the party who effects the performance which is characteristic of the contract. Although generally, in a charter-party, the owner undertakes as a matter of course to make a means of transport available to the charterer, it is however conceivable that, in certain cases, the owner’s obligations relate also to the carriage of goods proper and that, therefore, the contract in question comes within the scope of Article 4(4) of the Convention. (see paras 33-35, 37, operative part 1) 2. In order to maintain a high level of legal certainty in contractual relationships as required by the objectives of the Rome Convention on the law applicable to contractual obligations of 19 June 1980, the system for determining the applicable law must remain clear and that law must be capable of being predicted with some degree of certainty. Accordingly, the second sentence of Article 4(1) of the Convention must be interpreted as meaning that a part of a contract may be governed by a law other than that applied to the rest of the contract only where the object of that part is independent. Consequently, where the connecting criterion applied to a charter-party is that set out in Article 4(4) of the Convention, that criterion must be applied to the whole of the contract, unless the part of the contract relating to carriage is independent of the rest of the contract. (see paras 44-49, operative part 2) 3. Article 4(5) of the Rome Convention on the law applicable to contractual obligations of 19 June 1980 must be construed as meaning that, where it is clear from the circumstances as a whole that the contract is more closely connected with a country other than that determined on the basis of one of the criteria set out in Article 4(2) to (4) of the Convention, it is for the court to disregard those criteria and apply the law of the country with which the contract is most closely connected. The court retains that power notwithstanding its duty to always determine the applicable law on the basis of the presumptions set out in Article 4(2) to (4) of the Convention, which satisfy the general requirement of foreseeability of the law and thus of legal certainty in contractual relationships. (see paras 62-64, operative part 3)