CELEX: 62003CJ0148
Language: en
Date: 2004-10-28
Title: Judgment of the Court (Third Chamber) of 28 October 2004.#Nürnberger Allgemeine Versicherungs AG v Portbridge Transport International BV.#Reference for a preliminary ruling: Oberlandesgericht München - Germany.#Brussels Convention - Articles 20 and 57(2) - Failure by the defendant to enter an appearance - Defendant domiciled in another Contracting State - Geneva Convention on the Contract for the International Carriage of Goods by Road - Conflict between conventions.#Case C-148/03.

Case C-148/03
      Nürnberger Allgemeine Versicherungs AG
      v
      Portbridge Transport International BV
      (Reference for a preliminary ruling from the Oberlandesgericht München)
      (Brussels Convention – Articles 20 and 57(2) – Failure by the defendant to enter an appearance – Defendant domiciled in another Contracting State – Geneva Convention on the Contract for the International Carriage of Goods by Road – Conflict between conventions)
      Summary of the Judgment
      Convention on Jurisdiction and the Enforcement of Judgments – Relationship with other conventions – Conventions relating to
            a particular field – Convention containing rules on jurisdiction – Jurisidiction of the court seised challenged by the defendant
            on the basis of such a convention – Compliance by the court seised, in accordance with Article 57 of the Brussels Convention,
            with the rules of jurisdiction of the specialised convention
      (Brussels Convention of 27 September 1968, Arts 20 and 57(2)(a))
      Article 57(2)(a) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
         Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United
         Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic,
         by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic and by the Convention
         of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, should
         be interpreted as meaning that the court of a Contracting State in which a defendant domiciled in another Contracting State
         is sued may derive its jurisdiction from a specialised convention to which the first State is a party as well and which contains
         specific rules on jurisdiction, even where the defendant, in the course of the proceedings in question, submits no pleas on
         the merits and formally contests the jurisdiction of the court seised.
      
      In that connection, although it is true that according to Article 20 of the Convention of 27 September 1968, applicable by
         virtue of the second sentence of Article 57(2)(a), the court in question is required to declare of its own motion that it
         has no jurisdiction unless its jurisdiction was derived from the terms of that convention, the jurisdiction of that court
         must, however, be regarded as derived from the Convention, because Article 57 thereof specifically states that the rules of
         jurisdiction laid down by specialised conventions are not affected by that convention.
      
      In those circumstances, when verifying of its own motion whether it has jurisdiction with respect to that convention, the
         court of a Contracting State in which a defendant domiciled in another Contracting State is sued and fails to enter an appearance
         must take account of the rules of jurisdiction laid down by specialised conventions to which the first Contracting State is
         also a party.
      
       (see paras 16-20, operative part)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Third Chamber)28 October 2004(1)
         
         
            
         
               (Brussels Convention  –  Articles 20 and 57(2)  –  Failure by the defendant to enter an appearance  –  Defendant domiciled in another Contracting State  –  Geneva Convention on the Contract for the International Carriage of Goods by Road  –  Conflict between conventions)
               
             In Case C-148/03,REFERENCE for a preliminary ruling pursuant to the Protocol of 3 June 1971 on the interpretation by the Court of Justice of
            the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters from
            the Oberlandesgericht München (Germany), made by decision of 27 March 2003, registered at the Court on 31 March 2003, in the
            proceedings
            
            
            Nürnberger Allgemeine Versicherungs AG
            
            v
            
            Portbridge Transport International BV,
            
            
            
            THE COURT (Third Chamber),,
            
             composed of: A. Rosas, President of the Chamber, R. Schintgen (Rapporteur) and N. Colneric, Judges,
            
             Advocate General: A. Tizzano,Registrar: R. Grass,
             having regard to the written procedure,after considering the observations submitted on behalf of:
            
            –
             Nürnberger Allgemeine Versicherungs AG, by K. Demuth, Rechtsanwalt,
            
            –
             Portbridge Transport International BV, by  J. Kienzle, Rechtsanwalt,
            
            –
             the German Government, by R. Wagner, acting as Agent,
            
            –
             the United Kingdom Government, by K. Manji, acting as Agent, and by D. Beard, Barrister,
            
            –
             the Commission of the European Communities, by A.-M. Rouchaud and W. Bogensberger, acting as Agents,
            
            
            
            having decided, after hearing the Advocate General, to proceed to judgment without a hearing or an Opinion,
         gives the following
         
         
         Judgment
         1
            
          This reference for a preliminary ruling concerns the interpretation of Articles 20 and 57(2)(a) of the Convention of 27 September
         1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36, ‘the Brussels
         Convention’), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United
         Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and – amended version – p. 77), by the Convention of 25
         October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on the Accession
         of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention of 29 November 1996 on the
         Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1).
         
         
         
         2
            
          The reference was made in the course of a dispute between Nürnberger Allgemeine Versicherungs AG (‘Nürnberger’) and Portbridge
         Transport International BV (‘Portbridge’) concerning a claim for compensation for the harm sustained by Nürnberger as a result
         of the loss of goods which were to have been transported by Portbridge to the United Kingdom.
         
         
            
               Legal background
            
         
         3
            
          Under Article 57(1) and (2)(a) of the Brussels Convention: 
         ‘This Convention shall not affect any conventions to which the Contracting States are or will be parties and which, in relation
         to particular matters, govern jurisdiction or the recognition or enforcement of judgments.
          2.       With a view to its uniform interpretation, paragraph 1 shall be applied in the following manner:
         
         (a)
            this convention shall not prevent a court of a Contracting State which is a party to a convention on a particular matter from
               assuming jurisdiction in accordance with that Convention, even where the defendant is domiciled in another Contracting State
               which is not a party to that Convention. The court hearing the action shall, in any event, apply Article 20 of this Convention.’
            
         
         
         
         
         4
            
          The first paragraph of Article 20 of the Brussels Convention provides:
         ‘Where a defendant domiciled in one Contracting State is sued in a court of another Contracting State and does not enter an
         appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from
         the provisions of the Convention.’
         
         
         
         5
            
          The Convention on the Contract for the International Carriage of Goods by Road (‘CMR’), signed in Geneva on 19 May 1956, applies,
         in accordance with Article 1 ‘to every contract for the carriage of goods by road in vehicles for reward, when the place of
         taking over of the goods and the place designated for delivery, as specified in the contract, are situated in two different
         countries, of which at least one is a contracting country, … irrespective of the place of residence and the nationality of
         the parties’.
         
         
         
         6
            
          Under Article 31(1) of the CMR:
         ‘In legal proceedings arising out of carriage under this Convention, the plaintiff may bring an action in any court or tribunal
         of a contracting country designated by agreement between the parties and, in addition, in the courts or tribunals of a country
         within whose territory:
         
         (a)
            the defendant is ordinarily resident, or has his principal place of business, or the branch or agency through which the contract
               of carriage was made, or
            
         
         
         (b)
            the place where the goods were taken over by the carrier or the place designated for delivery is situated.’
         
         
         
         
         7
            
          Both the Federal Republic of Germany and the Kingdom of the Netherlands are parties to the CMR.
         
         The dispute in the main proceedings and the question referred for a preliminary ruling
         
         8
            
          Nürnberger is a transport‑insurance company incorporated under German law. It is claiming from Portbridge, a company incorporated
         under Netherlands law, compensation for the loss, in June 2000, of goods taken over by the latter in Vöhringen (Germany) which
         were to have been transported to the United Kingdom.
         
         
         
         9
            
          The carriage of goods at issue in the main proceedings is subject to the provisions of the CMR. In accordance with Article
         31(1)(b) of that convention, the court seised, namely the Landgericht Memmingen (Germany), has jurisdiction since the place
         where the goods to be transported were taken over is situated within its jurisdiction. Portbridge nevertheless contested the
         jurisdiction of that court and did not submit any pleas on the merits.
         
         
         
         10
            
          In an interlocutory judgment, the Landgericht Memmingen declined jurisdiction and dismissed Nürnberger’s action on the ground
         that it was inadmissible. It considered that, notwithstanding the rules on jurisdiction laid down in Article 31 of the CMR,
         pursuant to the second sentence of Article 57(2)(a) of the Brussels Convention Article 20 of that convention must be applied
         where a defendant does not enter an appearance or refuses to submit any pleas on the merits of the case. In such circumstances
         that provision requires the court seised to declare of its own motion that it has no jurisdiction unless its jurisdiction
         is derived from the provisions of the Convention.
         
         
         
         11
            
          Nürnberger appealed against that judgment to the Oberlandesgericht München, arguing that the provisions on jurisdiction laid
         down in Article 31(1) of the CMR override the general provisions on jurisdiction of the Brussels Convention even where the
         defendant has submitted no pleas on the merits, but has merely contested the jurisdiction of the court seised.
         
         
         
         12
            
          It was in those circumstances that the national court decided to stay the proceedings and refer the following question to
         the Court for a preliminary ruling:
         ‘Do the provisions on jurisdiction contained in other conventions take precedence over the general provisions on jurisdiction
         in the Brussels Convention even where a defendant domiciled in the territory of a State which is a party to the Brussels Convention
         and against whom an action has been brought before a court of another State which is a party to that Convention fails to submit
         pleas as to the merits of the case in the proceedings before that court?’
         
         The question referred for a preliminary ruling
         
         13
            
          By that question the national court asks, essentially, whether Article 57(2)(a) of the Brussels Convention must be interpreted
         as meaning that a court of a Contracting State in which a defendant domiciled in another Contracting State is sued may base
         its jurisdiction on a specialised convention, to which the first State is also a party and which contains specific rules on
         jurisdiction excluding the application of the Brussels Convention, even where, in the course of the proceedings in question,
         the defendant does not submit pleas on the merits.
         
         
         
         14
            
          In that regard it must be noted that Article 57 introduces an exception to the general rule that the Brussels Convention takes
         precedence over other conventions signed by the Contracting States on jurisdiction and the recognition and enforcement of
         judgments. The purpose of that exception is to ensure compliance with the rules of jurisdiction laid down by specialised conventions,
         since when those rules were enacted account was taken of the specific features of the matters to which they relate (see Case
         C-406/92 Tatry [1994] ECR I-5439, paragraph 24).
         
         
         
         15
            
          Portbridge maintains, nevertheless, that the rules of jurisdiction set out in Article 31(1) of the CMR should be disregarded
         and must make way for the application of the Brussels Convention under the second sentence of Article 57(2)(a), according
         to which ‘the court hearing the action shall, in any event, apply Article 20 of this convention’.
         
         
         
         16
            
          Article 20, it will be recalled, provides that, where a defendant is sued in a court of another Contracting State and does
         not enter an appearance, the court is to declare of its own motion that it has no jurisdiction unless its jurisdiction is
         derived from the provisions of the Brussels Convention.
         
         
         
         17
            
          In this case, the jurisdiction of the court must be regarded as derived from the Brussels Convention, because Article 57 specifically
         states that the rules of jurisdiction laid down by specialised conventions are not affected by the Brussels Convention. 
         
         
         
         18
            
          In those circumstances, when verifying of its own motion whether it has jurisdiction with respect to that convention, the
         court of a Contracting State in which a defendant domiciled in another Contracting State is sued and fails to enter an appearance
         must take account of the rules of jurisdiction laid down by specialised conventions to which the first Contracting State is
         also a party.
         
         
         
         19
            
          The same is true where, as in this case, the defendant, while submitting no pleas on the merits, formally contests the jurisdiction
         of the national court seised of the case.
         
         
         
         20
            
          Having regard to the foregoing, the answer to the question must be that Article 57(2)(a) of the Brussels Convention should
         be interpreted as meaning that the court of a Contracting State in which a defendant domiciled in another Contracting State
         is sued may derive its jurisdiction from a specialised convention to which the first State is a party as well and which contains
         specific rules on jurisdiction, even where the defendant, in the course of the proceedings in question submits no pleas on
         the merits.
         
         
         Costs
         21
            
          Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable. 
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (Third Chamber) rules as follows:
         Article 57(2)(a) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
               Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United
               Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic,
               by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic and by the Convention
               of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, should
               be interpreted as meaning that the court of a Contracting State in which a defendant domiciled in another Contracting State
               is sued may derive its jurisdiction from a specialised convention to which the first State is a party as well and which contains
               specific rules on jurisdiction, even where the defendant, in the course of the proceedings in question, submits no pleas on
               the merits. Signatures.
      
      
          1 –
            
            Language of the case: German.