At the November 2001 Diplomatic Conference on the Cape Town Convention, the European Community, in order to safeguard the application of Article 31 of the Brussels I Regulation, obtained that the full or partial application of Article 13 and 43 of the Convention would depend on a declaration.

At the time of its accession to the Cape Town Convention, the European Community made indeed a declaration stating that "where the debtor is domiciled in the territory of a Member State of the Community, the Member States bound by Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters will apply Articles 13 and 43 of the Cape Town Convention for interim relief only in accordance with Article 31 of Regulation (EC) No 44/2001 as interpreted by the Court of Justice of the European Communities in the context of Article 24 of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters".

In the negotiations guidelines concerning the Aircraft, Rail and Space Protocols it was expressly mentioned that Article 55 of the Cape Town Convention should continue to be applied also to the Protocols.

Article IX of the draft MAC Protocol "Modification of provisions regarding relief pending final determination" provides for this possibility and it is virtually identical to the equivalent Articles of the Aircraft, Rail and Space Protocols (Articles X, VIII and XX respectively).

It has to be noted that, after the recast of the Brussels I Regulation, Article 31 has become Article 35 but its wording is identical.

Concerning insolvency, the negotiating directives concerning the adopted Protocols asked that the relevant provisions should be optional as they affected the application of Regulation (EC) No 1346/2000 on insolvency proceedings.

Article X of the draft MAC Protocol (Remedies on insolvency) provides indeed for the opt-in possibility and it is virtually identical to the equivalent Articles of the Aircraft Protocol (Article XI), the Rail Protocol (Article IX) and the Space Protocol (Article XXI). Also Article XI (Insolvency assistance) of the draft MAC Protocol is an opt-in provision and it is virtually identical to the equivalent Articles of the Aircraft Protocol (Article XII), the Rail Protocol (Article IX) and the Space Protocol (Article XXII).

Also in this case, the recent recast of the Insolvency Regulation has not changed the affectation of EU law by the insolvency provisions of the MAC Protocol.

b) Choice of law

Article VI of the current version of the draft MAC Protocol contains provisions on the choice of law by the parties which is to govern their contractual rights and obligations, wholly or in part.

At the time of the adoption of the previous negotiating directives, no European Union legislation in matters relating to the law applicable to contractual obligations was in force, therefore no specific negotiating directive on this matter was provided by the Council to the Commission.

Meanwhile, Regulation (EC) No 593/2008 on the law applicable to contractual obligations (known as "Rome I") was adopted on 17 June 2008 and entered into application as from 17 December 2009.

The extensive choice of law possibilities provided for in paragraph 2 of Article VI is not compatible with the system established by Regulation No 593/2008; therefore this Article should not be applied by EU Member States.

This is the solution chosen by the EU also for the other Protocols.

Council Decision of 6 April 2009, concerning the accession of the European Union to the Cape Town Convention and its Protocol on matters specific to aircraft equipment, contains specific reference to the exclusive Community competence on some matters governed by the Aircraft Protocol and, in particular, to the Rome I Regulation. Therefore, the Article of the Aircraft Protocol on choice of law was subject to a specific declaration made by the Community.

In a similar way, in relation to the Rail Protocol, the matter of the choice of law was specifically considered in the declaration pursuant to Article XXII(2) concerning the competence of the European Community over matters governed by the Rail Protocol. Point 5 of the Declaration states that the Member States of the European Community have transferred their competence to the Community as regards matters which affect (inter alia) the Rome I Regulation.

Article VIII of the Space Protocol is instead an opt-out provision, meaning that it applies unless expressly excluded in a declaration made by a Contracting State. Thus, at the time of the possible signature/ratification/approval of the Space Protocol, the EU would have to make the correspondent declaration.

The current version of Article VI in the draft MAC Protocol is an opt-in provision and this should be maintained in the final text.

II. Final provisions of EU interest

The draft final provisions (Article XXII-Regional Economic Integration Organisation) contain a REIO clause which is virtually identical to those of Article 48 of the Cape Town Convention, Article XXVII of the Aircraft Protocol, Article XXII of the Rail Protocol and Article XXXVII of the Space Protocol.