Haeger & Schmidt GmbH v Mutuelles du Mans assurances IARD (MMA IARD) and Others.
Date: 2014-10-23
18. It should be borne in mind at the outset, as a preliminary point, that in the absence of a choice by the parties as to the law applicable to the contract, Article 4 of the Convention provides for connecting criteria on the basis of which the court must determine that law, which apply to all categories of contracts (see the judgment in ICF , C‑133/08, EU:C:2009:617, paragraph 25).
19. Article 4 of the Convention is based on the general principle, which is enshrined in Article 4(1), that in order to establish a contract’s connection with a national law, it is necessary to ascertain the country with which that contract is ‘most closely connected’ (see judgment in ICF , EU:C:2009:617, paragraph 26).
23. Article 4(5) of the Convention contains an exception clause which makes it possible to disregard those presumptions when the circumstances as a whole establish that the contract is more closely connected with another country (see, to that effect, ICF , EU:C:2009:617, paragraph 27).
25. It must be remembered with regard to the expression ‘shall be treated as contracts for the carriage of goods’ and the conditions under which another contract may be considered a contract for the carriage of goods that consistent and independent criteria are necessary in order to guarantee the full effectiveness of the Rome Convention in view of the objectives which it pursues (see, by way of analogy, Koelzsch C‑29/10, EU:C:2011:151, paragraph 32 and the case-law cited).
26. It should also be borne in mind that, in paragraphs 32 to 34 of the judgment in ICF (EU:C:2009:617), the Court interpreted the last sentence of Article 4(4) as meaning that it allows other contracts to be equated with contracts for the carriage of goods, since one of the purposes of that provision is to extend the application of the second sentence of Article 4(4) to contracts which, despite being categorised as charter-parties under national law, have as their principal purpose the carriage of goods. In order to ascertain that purpose, it is necessary to take into consideration the objective of the contractual relationship and, consequently, all the obligations of the party who effects the performance which is characteristic of the contract.
34. According to the Court’s case-law, the court must always determine the applicable law on the basis of the presumptions set out in Article 4(2) to (4) of the Convention, which satisfy the general requirement of foreseeability of the law and thus of legal certainty in contractual relationships (see, to that effect, judgment in ICF , EU:C:2009:617, paragraph 62).
41. As rightly observed by the French Government in its written observations, since Article 4(5) of the Convention requires the national court to apply the law of the country with which the contract is most closely connected and refrain from applying the law applicable determined on the basis of the criteria set out in Article 4(2) to (4), a fortiori that court must apply the law of the country with which the contract is most closely connected, as provided for in Article 4(1), where Article 4(4) does not enable the law applicable to a contract for the carriage of goods to be identified (see, to that effect, ICF , EU:C:2009:617, paragraphs 63 and 64).
46. Therefore, where the matter involves a contract which comes under Article 4(2) of the Rome Convention and it is possible to identify its characteristic performance, the national court must first of all determine the applicable law on the basis of the connecting criteria set out in Article 4(2), as stated in paragraph 35 above (see, to that effect, judgment in ICF , EU:C:2009:617, paragraph 62).
47. As is apparent both from the wording of Article 4(2) of the Rome Convention, which makes express provision for the application of Article 4(5), and from the Court’s case-law, that presumption may be disregarded when the requirements of Article 4(5) are met (see, to that effect, judgment in ICF , EU:C:2009:617, paragraphs 63 and 64).
49. In fact the referring court must conduct an overall assessment of all the objective factors characterising the contractual relationship and determine which of those factors are, in its view, most significant (see, by way of analogy, judgment in Schlecker , C‑64/12, EU:C:2013:551, paragraph 40). As observed by the Commission, significant connecting factors to be taken into account include the presence of a close connection between the contract in question with another contract or contracts which are, as the case may be, part of the same chain of contracts, and the place of delivery of the goods.