CELEX: C1997/212/18
Language: en
Date: 1997-07-12 00:00:00
Title: Reference for a preliminary ruling by the Corte Suprema di Cassazione by order of that court of 24 October 1996 in the case of Società Trasporti Castelletti Spedizioni Internazionali SpA against Hugo Trumpy SpA (Case C-159/97)

12 . 7 . 97             EN                       Official Journal of the European Communities                                    No C 212/9
Action brought on 23 April 1997 by the Commission                                  the jurisdiction clause by means of the requirements
of the European Communities against Van Balkom                                     laid down by that provision in respect of the validity
                     Non-Ferro Scheiding BV                                        of such clauses; that is also the case where the clause
                          ( Case C-156/97)                                         is adjudged valid, when the bill of lading containing
                                                                                   the    clause   comes  within    the   framework      of  a
                              ( 97/C 212/17)                                       continuing business relationship between the parties,
                                                                                   and it is thereby established that the relationship is
An action against Van Balkom Non-Ferro Scheiding BV                                governed by the general terms and conditions ( drawn
was brought before the Court of Justice of the European                            up by one of the parties, namely the carrier )
Communities on 23 April 1997 by the Commission of the                              containing that clause ( see the judgment in Case 71 /
European Communities, represented by H. Van Lier and                               83 (2 ) which cites earlier judgments underscoring the
G. zur Hausen, acting as Agents, with an address for                               need for the consent of the parties to be clearly and
service in Luxembourg at the office of C. Gomez de la                              precisely demonstrated ).
Cruz, of the Commission's Legal Service, Wagner Centre,
Kirchberg.                                                                         However, in the light of the insertion into the new
                                                                                   wording of the provision of the reference to usage,
The applicant claims that the Court should :                                       which is prescriptive ( and thus unconnected to the
                                                                                   will of the parties, at least so far as specifically
1 . order the defendant to pay to the Commission of the                            concerns a particular contract), the question arises
       European Communities the amount of ECU 251 649 ,                            whether the requirement of ( actual ) knowledge, or of
       plus interest due from 1 July 1991 at the percentage                        lack of awareness arising out of negligent and
       rates, published on the first working day of each                           inexcusable ignorance, is sufficient in view of the
       month, which the European Monetary Cooperation                              consistent incorporation ( in all agreements similar to
       Fund charges in respect of its ecu transactions, along                      that in issue ) of the jurisdiction clause . The question
       with the 4% default interest on ECU 251 649 owing                           arises, in other words, whether it is any longer
       since 1 May 1995 ;                                                          necessary to ascertain the will of the parties, despite
                                                                                   the fact that Article 17 uses the word 'concluded' ( in
2 . order the defendant to pay the costs of the                                    the Italian version ), which implies an expression of
       proceedings .                                                               will and thus 'commercial' usage (customary clauses ).
Pleas in law and main arguments adduced in support:                         ( b ) The second question concerns the meaning of the
The action is based on contract BM 488/88 DE-NL,
                                                                                    expression 'form which accords'. The first aspect
                                                                                   concerns the appearance of the clause , that is whether
signed by the parties on 4 December 1990. Under
                                                                                    it must necessarily be in writing signed by the party
Article 13 of that contract, the parties agreed that
                                                                                    who has drawn it up and who has therefore expressed
all disputes regarding the validity, interpretation and
                                                                                    the intention of relying upon it — for example — by
application of the contract should be referred to the Court
                                                                                    signing the bill of lading referring to a clause which
of Justice of the European Communities. The Commission
decided, in accordance with German law, to terminate the
                                                                                    in turn refers to an agreement conferring exclusive
                                                                                    jurisdiction, even in the absence of the signature of
contract by reason of the defendant's failure to implement
it .
                                                                                    the other party (the shipper ).
                                                                                    The second aspect consists in establishing whether it
                                                                                    is necessary for the jurisdiction clause to stand out
                                                                                    prominently on it own within the contract as a
                                                                                    whole, or whether it is sufficient ( and therefore of no
Reference for a preliminary ruling by the Corte Suprema                             consequence as regards the validity of the clause ) for
 di Cassazione by order of that court of 24 October 1996                            it to be inserted amongst numerous other clauses
 in the case of Societa Trasporti Castelletti Spedizioni                            drawn up in order to regulate the contract of carriage
           Internazionali SpA against Hugo Trumpy SpA                               in every respect.
                            ( Case C-159/97 )
                                                                                    The third aspect relates to the language in which the
                                ( 97/C 212/ 18 )                                    clause is drawn up, that is to say, whether it must be
                                                                                     in some way related to the nationality of the parties
 Reference has been made to the Court of Justice of the                              to the contract or whether it is sufficient for it to be a
 European Communities by order of the Corte Suprema di                               language regularly used in international trade or
 Cassazione ( Supreme Court of Cassation ) of 24 October                             commerce .
  1996, received at the Court Registry on 25 April 1997, for
 a preliminary ruling in the case of Societa Trasporti                        (c ) The third question is concerned with whether the
  Castelletti Spedizioni Internazionali SpA against Hugo                             court chosen must be in some way related to the
 Trumpy SpA on the following questions:                                              nationality and/or the residence of the parties to the
                                                                                     contract or to the place of performance and/or
  ( a ) First question: In the case-law of the Court of Justice                      conclusion of the contract, provided that it is a court
         relating to the original wording of Article 17 ( ] )                        of a Contracting State, or whether the latter condition
         reference has been made to the need to ascertain and                        is sufficient without there being any other link with
         protect the actual will of the parties with regard to                       the substance of the relationship .
 ---pagebreak--- No C 212/ 10              EN                 Official Journal of the European Communities                                          12 . 7 . 97
( d ) The fourth question concerns the process by which                 ( m ) The 11th question concerns the circumstances in
        usage comes into being; that is, whether consistent                      which insertion of the clause in question in a form
        incorporation of the clause in bills of lading issued by                 drawn up by one party but not signed by the other
        trade associations or a significant number of maritime                   party may be considered either an excessive burden
        transport undertakings is sufficient or whether it must                  on the latter or unlawful .
        be demonstrated that since users of such transport
        (whether traders or otherwise ) have not made any               ( n ) The 12th question involves ascertaining whether the
        observations or expressed reservations regarding                         party concerned was or ought to have been aware of
        consistent incorporation of the clause, they have                        the usage, other than with regard to the condition set
        tacitly acquiesced to the conduct of the other party,                     forth in paragraph (e ), above, as regards the bill of
        so that there may no longer be considered to be a                         lading itself, which contained numerous clauses
        dispute between them.                                                     appearing on the reserve ( paragraph ( b ), above ).
 ( e ) The fifth question concerns the form in which such
                                                                        ( o ) The 13th question involves identifying the person
        consistent practice is publicized, that is, whether the                   who is or ought to have been aware of the usage;
        bill of lading in which the jurisdiction clause is
                                                                                  whether it must be the original shipper, even if he
        contained must be lodged at a particular office ( trade                   does not belong to a Contracting State ( such as, in
        association, chamber of commerce, port authorities,
                                                                                  the present case, Argentina ), or whether it is sufficient
        and so on ) for consultation or must be brought to the                    for it to be the endorsee of the bill , who does belong
        notice of the public in some other way.
                                                                                  to a Contracting State ( in the present case, Italy ).
 ( f) The sixth question concerns the validity of the clause,
        even where, by virtue of the substantive rules                   ( p ) The 14th question is concerned with whether the
        applicable in the chosen court, it takes the form of a                    phrase ' ought to have been aware' refers to the
        clause exempting the carrier from, or limiting, his                       criterion of good faith and objective lawfulness when
        liability.                                                                a particular contract was drawn up or to the criterion
                                                                                  of ordinary care on the part of individuals who must
                                                                                  be fully informed of current practices in international
 (g) The seventh question is concerned with whether the                           trade, for the purposes of paragraph ( i ), above .
        court ( other than the chosen court) which has been
        called upon to assess the validity of the clause may             (') Article 17 of the Brussels Convention of 27 September 1968 as
         examine the reasons for it, that is to say, the intention             amended by the Convention relating to the accession of the
         of the carrier in the choice of court made, as distinct               Kingdom of Denmark, of Ireland and of the United Kingdom
         from the court which would have had jurisdiction                      of Great Britain and Northern Ireland, signed at Luxembourg
         according to the usual criteria laid down in the                      on 9 October 1978 ( OJ No L 304, 30. 10 . 1978 , p. 1 ).
         Brussels Convention or by the lex fori.                         ( 2 ) [ 1984] ECR, p . 2417 .
  ( h ) The eighth question consists in ascertaining whether
         the fact that many shippers and/or endorsees of bills
         of lading have challenged the validity of the clause by
         bringing an action before a court other than that
         designated in the clause itself is indicative of the fact       Appeal brought on 25 April 1997 by Kernkraftwerke
         that usage regarding the insertion of the clause in             Lippe-Ems GmbH against the judgment delivered on
         forms has not become well established .                         25 February 1997 by the Court of First Instance of
                                                                          the European Communities (First Chamber, Extended
  (i )   The ninth question consists in ascertaining whether              Composition ) in Joined Cases T-149/94 and T-181/94
         the usage must exist in all the countries of the                           between Kernkraftwerke Lippe-Ems GmbH and
         European Community or whether the expression                                 Commission of the European Communities
         ' international trade or commerce ' is intended to meari                                   Case C-161 /97 P )
         that it is sufficient for the usage to be practised in
                                                                                                       ( 97/C 212/ 19 )
         those countries which, in the context of international
         trade or commerce, have traditionally played a
         prominent role.                                                  An appeal against the judgment delivered on 25 February
                                                                          1997 by the Court of First Instance of the European
   (1 )  The 10th question consists in ascertaining whether               Communities (First Chamber, Extended Composition )
         the usage in question may derogate from mandatory                in Joined Cases T-149/94 and T-181 /94 between
          statutory provisions of individual States, such as, in          Kernkraftwerke Lippe-Ems GmbH and Commission of the
         Italy, Article 1341 of the Civil Code which, with                European Communities was brought before the Court of
          regard    to the general contractual terms and                  Justice of the European Communities on 25 April 1997 by
          conditions drawn up by one of the parties, provides             Kernkraftwerke Lippe-Ems GmbH, represented by Bernd
          that, in order for the usage to be valid, the other             Kunth , Gerhard Wiedemann and Helmut Nicolaus,
          party must be or ought to have been aware of it and              Rechtsanwalte, of Kanzlei Bruckhaus Westrick Stegemann,
          provides that clauses laying down particular                     Diisseldorf, with an address for service in Luxembourg at
          limitations to or derogating from the jurisdiction of            the Chambers of Alex Bonn , 22 Cote d'Eich, L-1450
          the courts must be specifically approved.                        Luxembourg.