Case C-533/08: 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
Date: 2008-12-03
Institutions: Court of Justice
Subjects: Court of Justice of the European Union, case-law (EU), civil proceedings, interpretation of the law, literature, power of implementation

C 44/32

EN

Official Journal of the European Union

21.2.2009

Reference for a preliminary ruling from the Bundes-
gerichtshof (Germany) lodged on 2 December 2008 —
Jochen Kolenda, Helmar Rendenz v
Friedrich Schulze,

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

Deutsche Lufthansa AG

(Case C-529/08)

(2009/C 44/52)

Language of the case: German

(Case C-533/08)

(2009/C 44/53)

Language of the case: Dutch

Referring court

Bundesgerichtshof

Parties to the main proceedings

Claimants: Friedrich Schulze, Jochen Kolenda, Helmar Rendenz

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: TNT Express Nederland BV

Respondent: AXA Versicherung AG

Defendant: Deutsche Lufthansa AG

Questions referred

Questions referred

1. Can a technical defect which causes a cancellation be an
extraordinary
the meaning
circumstance within
of
Article 5(3) of Regulation (EC) No 261/2004 of
the
the Council of 11 February
European Parliament and of
2004 establishing common rules on compensation and assis-
tance to passengers in the event of denied boarding and of
cancellation or long delay of flights, and repealing Regulation
(EEC) No 295/91 (1)?

2. If so, does the concept of an extraordinary circumstance in
the form of a technical defect include also those faults which
affect the airworthiness of the aircraft or the safe completion
of the flight?

3. Has the operating air carrier taken all reasonable measures
where it has complied with the manufacturer's servicing and
maintenance programme for the aircraft in question and
with the safety standards and instructions of the competent
authority or manufacturer, or where the fault could not have
been avoided even if the carrier had complied with that
programme or those directions?

4. If the answer to question 3 is in the affirmative, is that suffi-
cient to release the air carrier from its obligation to pay
compensation, or is further evidence required that the cancel-
lation, that is to say, the fact of the relevant aircraft being
taken out of operation and the cancelling of the flight owing
to the lack of a replacement aircraft, would also not have
been avoided by the taking of all reasonable measures?

(1) OJ 2004 L 46, p. 1.

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 judg-
ments 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 enforce-
ment 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 exclu-
sive effect vis-à-vis other international rules on recognition
and enforcement?

2. Does the Court of Justice have jurisdiction, with a view to
forestalling divergent judgments in respect of the concur-
rence 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 ques-
tion in the affirmative and likewise answer the second ques-
tion in the affirmative,
the Hoge Raad also refers the
following three questions for the further appraisal of the
appeal in cassation:

21.2.2009

EN

Official Journal of the European Union

C 44/33

4. In the event of an application for a declaration of enforce-
ability, 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 Regu-
lation No 44/2001, the lis pendens rules of the CMR Conven-
tion take precedence over those of Regulation No 44/2001?

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

(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).

2. If the answer to the first question is that the term ‘the same
parties’
is intended to give to the subjective scope of the
operation of the competing judgments a more precise inter-
pretation in isolation from Regulation No 44/2001:

(i) must, in the interpretation of that term in Article 34(3)
of Regulation No 44/2001, support be sought in the
interpretation which the Court of Justice of the European
Communities gave to the term ‘between the same parties’
in Article 21 of the Brussels Convention (now Article 27
of Regulation No 44/2001)
in Case
C-351/96 Drouot assurances v CMI and Others [1998] ECR
I-3075; and

in its judgment

(ii) must K-Line, which was a party to the Rotterdam
proceedings, but not to the Düsseldorf proceedings, be
deemed, because of the assignment and mandate, to be
‘the same party’ as Zeuner, which was a party to the
Düsseldorf proceedings, but not
to the Rotterdam
proceedings?

3. If

reliance on the ground for

refusal

laid down in

Article 34(3) of Regulation No 44/2001 is to succeed,

(i) must the judgment given in the Member State in which
recognition is sought have acquired the force of res judi-
cata?

Reference for a preliminary ruling from the Hoge Raad der
Nederlanden (Netherlands) lodged on 3 December 2008 —
KLG Europe Eersel BV v Reedereikontor Adolf Zeuner
GmbH

(ii) must the judgment given in the Member State in which
recognition is sought precede the submission of
the
application for enforcement or the granting of the order
for enforcement?

(Case C-534/08)

(2009/C 44/54)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: KLG Europe Eersel BV

Respondent: Reedereikontor Adolf Zeuner GmbH

(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).

Reference for a preliminary ruling from the Hoge Raad der
Nederlanden (Netherlands) lodged on 4 December 2008 —
Staatssecretaris van Financiën v X

(Case C-536/08)

(2009/C 44/55)

Language of the case: Dutch

Questions referred

1. Does the term ‘between the same parties’ in Article 34(3) 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 refer to the rules
on the subjective scope of the operation of judgments of the
Member States concerned, or is it intended to give to the
subjective scope of the operation of the competing judg-
ments a more precise interpretation in isolation from that
regulation?

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Applicant: Staatssecretaris van Financiën

Defendant: X