TNT Express Nederland BV v AXA Versicherung AG.
Date: 2010-05-04
36. A second preliminary point is that, in so far as Regulation No 44/2001 replaces the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention (‘the Brussels Convention’), interpretation provided by the Court in respect of the provisions of the Brussels Convention is also valid for those of Regulation No 44/2001 whenever the provisions of those instruments may be regarded as equivalent (Case C-180/06 Ilsinger  [2009] ECR I-0000, paragraph 41, and Case C-189/08 Zuid-Chemie  [2009] ECR I-0000, paragraph 18).
37. Article 71 of Regulation No 44/2001, whose interpretation is sought in the present case, replaces Article 57 of the Brussels Convention, which contained the following provisions in respect of conventions on particular matters (‘specialised conventions’):
‘1. 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 …;
(b) judgments given in a Contracting State by a court in the exercise of jurisdiction provided for in a convention on a particular matter shall be recognised and enforced in the other Contracting State in accordance with this Convention.
Where a convention on a particular matter to which both the State of origin and the State addressed are parties lays down conditions for the recognition or enforcement of judgments, those conditions shall apply. …
…’
38. By use of the words ‘or will be’, Article 57(1) of the Brussels Convention made it clear that the rules contained in that convention did not preclude the application of different rules to which the Contracting States would agree in the future through the conclusion of specialised conventions. Those words were not reproduced in Article 71(1) of Regulation No 44/2001. Accordingly, that provision does not enable the Member States to introduce, by concluding new specialised conventions or amending conventions already in force, rules which would prevail over those of Regulation No 44/2001. This finding is confirmed by the case-law stating that, as and when common rules come into being, the Member States no longer have the right to conclude international agreements affecting those rules (see, inter alia, Case 22/70 Commission  v Council  (ERTA) [1971] ECR 263, paragraphs 17 to 19, and Case C-467/98 Commission  v Denmark  (Open Skies) [2002] ECR I-9519, paragraph 77).
44. According to settled case-law, in interpreting a provision of European Union law it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, Case C-301/98 KVS International  [2000] ECR I-3583, paragraph 21; Case C‑298/07 Bundesverband der Verbraucherzentralen und Verbraucherverbände  [2008] ECR I-7841, paragraph 15; and Case C-403/09 PPU Detiček  [2009] ECR I‑0000, paragraph 33). Account should therefore be taken, for the purposes of answering the first and fifth questions referred for a preliminary ruling, both of the wording of Article 71 of Regulation No 44/2001 and that particular article’s objective and of the context in which Article 71 occurs and the objectives pursued by the regulation.
48. Therefore, Article 71 of Regulation No 44/2001 is intended to ensure compliance with rules in whose enactment account was taken of the specific features of a particular matter (see, with regard to Article 57 of the Brussels Convention, Case C-406/92 Tatry  [1994] ECR I-5439, paragraph 24, and Case C‑148/03 Nürnberger Allgemeine Versicherung  [2004] ECR I-10327, point 14). In the light of that objective, the Court has held that the rules laid down in specialised conventions have the effect of precluding the application of the provisions of the Brussels Convention relating to the same question (see, to this effect, Tatry , paragraph 25).
49. While it is apparent from the foregoing considerations that Article 71 of Regulation No 44/2001 provides, in relation to matters governed by specialised conventions, for the application of those conventions, the fact remains that their application cannot compromise the principles which underlie judicial cooperation in civil and commercial matters in the European Union, such as the principles, recalled in recitals 6, 11, 12 and 15 to 17 in the preamble to Regulation No 44/2001, of free movement of judgments in civil and commercial matters, predictability as to the courts having jurisdiction and therefore legal certainty for litigants, sound administration of justice, minimisation of the risk of concurrent proceedings, and mutual trust in the administration of justice in the European Union.
51. Article 71 of Regulation No 44/2001 cannot have a purport that conflicts with the principles underlying the legislation of which it is part. Accordingly, that article cannot be interpreted as meaning that, in a field covered by the regulation, such as the carriage of goods by road, a specialised convention, such as the CMR, may lead to results which are less favourable for achieving sound operation of the internal market than the results to which the regulation’s provisions lead.
52. This finding is consistent with settled case-law that conventions concluded by Member States with non-member countries cannot, in relations between the Member States, be applied to the detriment of the objectives of European Union law (see, to this effect, Case 286/86 Deserbais  [1988] ECR 4907, paragraph 18; Joined Cases C-241/91 P and C-242/91 P RTE and ITP  v Commission  [1995] ECR I-743, paragraph 84; and Case C-301/08 Bogiatzi  [2009] ECR I-0000, paragraph 19).
54. In the case of the recognition and enforcement of judgments, the relevant principles are those, specified in recital 6 and recitals 16 and 17 in the preamble to Regulation No 44/2001, of free movement of judgments and mutual trust in the administration of justice ( favor executionis ) (see, in particular, Case C-283/05 ASML  [2006] ECR I‑12041, paragraph 23; Case C-185/07 Allianz and Generali Assicurazioni Generali [2009] ECR I-663, paragraph 24; and Case C-420/07 Apostolides  [2009] ECR I-0000, paragraph 73). Rules governing recognition and enforcement laid down by specialised conventions referred to in Article 71 of Regulation No 44/2001 can be applied within the European Union only to the extent that those principles are observed.
55. Having regard to the principle of mutual trust referred to above, the Court has stated that the court of the State addressed is never in a better position than the court of the State of origin to determine whether the latter has jurisdiction. Accordingly, Regulation No 44/2001, apart from a few limited exceptions, does not authorise the jurisdiction of a court of a Member State to be reviewed by a court in another Member State ( Allianz and Generali Assicurazioni Generali , paragraph 29 and the case-law cited). Therefore, Article 31(3) of the CMR can be applied in the European Union only if it enables the objectives of the free movement of judgments in civil and commercial matters and of mutual trust in the administration of justice in the European Union to be achieved under conditions at least as favourable as those resulting from the application of Regulation No 44/2001.
58. In light of the fact that the CMR does not contain a clause under which the Court is conferred jurisdiction, the Court can interpret Article 31 of the CMR as requested only if the performance by it of such tasks is covered by Article 267 TFEU.
59. It is settled case-law that the power, as resulting from that provision, to provide interpretations by way of preliminary rulings extends only to rules which are part of European Union law (see to this effect, inter alia, Case C-130/95 Giloy  [1997] ECR I-4291, paragraph 21; Case C-222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I-289, paragraph 63; and Case C-453/04 innoventif  [2006] ECR I-4929, paragraph 29).
60. In the case of international agreements, it is settled that such agreements concluded by the European Union form an integral part of its legal order and can therefore be the subject of a request for a preliminary ruling (see to this effect, inter alia, Case 181/73 Haegeman  [1974] ECR 449, paragraphs 4 to 6; Case 12/86 Demirel  [1987] ECR 3719, paragraph 7; and Case C-431/05 Merck Genéricos – Produtos Farmacêuticos  [2006] ECR I-7001, paragraph 31).
61. On the other hand, the Court does not, in principle, have jurisdiction to interpret, in preliminary ruling proceedings, international agreements concluded between Member States and non-member countries (see, to this effect, Case 130/73 Vandeweghe and Others  [1973] ECR 1329, paragraph 2; order in Case C-162/98 Hartmann  [1998] ECR I-7083, paragraph 9; and Bogiatzi , paragraph 24).
62. It is only where and in so far as the European Union has assumed the powers previously exercised by the Member States in the field to which an international convention not concluded by the European Union applies and, therefore, the provisions of the convention have the effect of binding the European Union that the Court has jurisdiction to interpret such a convention (see, inter alia, Joined Cases 21/72 to 24/72 International Fruit Company and Others  [1972] ECR 1219, paragraph 18; Case C-308/06 Intertanko and Others [2008] ECR I-4057, paragraph 48; and Bogiatzi , paragraph 25). In the present instance, however, it cannot be asserted that the rules governing jurisdiction, recognition and enforcement laid down by the CMR bind the European Union. On the contrary, it is apparent from the interpretation of Article 71 of Regulation No 44/2001 provided in the present judgment that those rules laid down by the CMR can be applied in the European Union only if the principles underlying that regulation are observed.
63. In light of the foregoing, the answer to the second question is that the Court does not have jurisdiction to interpret Article 31 of the CMR.
The third, fourth and sixth questions