Hoge Raad, uitspraak van 28/11/2008 07/12652
Decision by national courts in the field of European Union law — ECLI:NL:HR:2008:BF0419
Date: 2008-11-28
Subject matter: Brussels Convention of 27 September 1968
Origin: Netherlands

82008NL1128(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The complainant X lost cargo in a delivery from the Netherlands to Germany. The respondent Y bore the cost of damages as the insurer. First, X filed an action for negative declaratory relief against Y with the Rechtbank of Rotterdam (NL). Y then filed an action for performance against X demanding payment for damages with the Landgericht of Munich (DE). The German judgment was declared enforceable. The action for negative declaratory relief was at that time still pending. After unsuccessful appeals, X filed a petition with the Hoge Raad (NL) against the declaration of enforceability. X cited Article 34(1) Brussels I Regulation. The action for declaratory judgment should have precluded the action for performance against X as lis pendens pursuant to Article 31 CMR. According to Article 71(2)(b) Brussels I Regulation, Article 31 CMR takes priority.
The Hoge Raad (NL) disagrees with the opinion of the Bundesgerichtshof (DE) regarding Article 31(2) CMR that an action for negative declaratory relief on liability for damages has no force of lis pendens on an action for performance demanding payment on the same damages. For clarification on this question, the Hoge Raad submits a request to the ECJ. It bases the jurisdiction of the ECJ for the interpretation of Article 31 CMR on the theory that provisions of special contracts read in conjunction with Brussels I Regulation are to be applied as provisions of the same. (No. 240 Report P. Schlosser Brussels Convention). Moreover, in the Matter of Hermès (16.06.1998, C-53/96), the ECJ has already interpreted Article 50 of the TRIPS Convention. Secondly, the question remains as to how Article 31 CMR and Article 27 Brussels I Regulation relate to each other. The Hoge Raad advocates that the enforcement creditor presented with different sets of rules of international enforcement that do not claim to operate exclusively may elect to use the rules that are most in his favour (fundamental principle of favor executionis).