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To the extent that such agreements are not compatible with the Treaties, the member state or states concerned shall take all appropriate steps to eliminate the incompatibilities established. Ratio |
Member states shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude. Ratio |
In applying the agreements referred to in the first paragraph, member states shall take into account the fact that the advantages accorded under the Treaties by each member state form an integral part of the establishment of the Union and are thereby inseparably linked with the creation of common institutions, the conf... |
Reflecting article 351 TFEU, article 71 of the Brussels Regulation provides: 1. STA |
This Regulation shall not affect any conventions to which the member states are parties and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. STA |
2 STA |
With a view to its uniform interpretation, paragraph 1 shall be applied in the following manner: (a) this Regulation shall not prevent a court of a member 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 ... |
The court hearing the action shall, in any event, apply article 26 of this Regulation; (b) judgments given in a member 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 member states in accordance with this Regulation. STA |
Where a convention on a particular matter to which both the member state of origin and the member state addressed are parties lays down conditions for the recognition or enforcement of judgments, those conditions shall apply. STA |
In any event, the provisions of this Regulation which concern the procedure for recognition and enforcement of judgments may be applied. STA |
On the face of it, article 351 establishes a clear position. Ratio |
The Court of Justice has, however, interpreted article 315. Ratio |
In its famous decision in Kadi v Council of the European Union (Joined Cases C-402/05P and C-415/05P) [2009] AC 1225, the court in considering the relationship between a European sanctions measure and the obligations imposed on member states under the United Nations Charter and general international law to give effect ... |
What is more, such immunity from jurisdiction for a Community measure like the contested regulation, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Cou... |
301 Ratio |
Admittedly, the court has previously recognised that article 234 of the EC Treaty (now, after amendment, article 307EC) could, if the conditions for application have been satisfied, allow derogations even from primary law, for example from article 113 of the EC Treaty on the common commercial policy: see, to that effec... |
302 Ratio |
It is true also that article 297EC implicitly permits obstacles to the operation of the common market when they are caused by measures taken by a member state to carry out the international obligations it has accepted for the purpose of maintaining international peace and security. Ratio |
303 Ratio |
Those provisions cannot, however, be understood to authorise any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in article 6(1) EU as a foundation of the Union. Ratio |
304 Ratio |
Article 307EC may in no circumstances permit any challenge to the principles that form part of the very foundations of the Community legal order, one of which is the protection of fundamental rights, including the review by the Community judicature of the lawfulness of Community measures as regards their consistency wi... |
Article 351 TFEU is the successor to article 307EC. Ratio |
Kadi was a decision at a high level of importance for individual freedoms. Ratio |
It is, in one sense, a surprise to find its thinking extended to the tarmacadam of the worlds roads. Ratio |
But in TNT Express para 51, and Nipponkoa, para 37, referred to in para 18 above, the court stated that: Article 71 of Regulation 44/2001 cannot have a purport that conflicts with the principles underlying the legislation of which it is part. Ratio |
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 Regula... |
The court did not refer to article 307EC or article 351 TFEU, and the courts reasoning is essentially circular. Ratio |
It is the purpose of article 307EC, now 351 TFEU, to derogate from not only Regulations such as (EC) 44/2001, but also from the Treaties themselves. Ratio |
As Judge Allan Rosas, not a member of the court in TNT or Nipponkoa, explained extra-judicially in The Status in EU Law of International Agreements Concluded by EU member states (Fordham International Law Journal vol 34, Issue 5 (2011) article 7), at p 1321: Article 351(1) TFEU allows a derogation from the principle of... |
According to settled case law, the purpose of the provision is to establish that the application of EU law does not affect the duty of the member state concerned to respect the rights of non-member countries under a prior agreement and to perform its obligations thereunder. PRE |
The court has also recognized that article 351(1) TFEU may allow derogations from not only Unions secondary law but also its primary law, such as provisions of the TEU and the TFEU. PRE |
The court has added that the provision would not achieve its purpose if it did not imply a duty on the part of the Union institutions not to impede the performance of the obligations of member states that stem from a prior agreement. PRE |
These propositions are borne out by the prior authorities which Judge Rosas cited in their support, particularly Attorney General v Burgoa (Case C-812/79) [1980] ECR 2787, para 8 et seq. PRE |
At a high level, preservation of the internal market is of course fundamental to the Union. Ratio |
But the court in both TNT para 49 and Nipponkoa para 36 endorsed the more detailed statements that, although article 71 of Regulation 44/2001 provides, in relation to matters governed by specialised conventions such as CMR, for the application of those conventions: the fact remains that their application cannot comprom... |
In TNT the court added: 50. PRE |
Observance of each of those principles is necessary for the sound operation of the internal market, which, as is apparent from recital 1 in the preamble, constitutes the raison dtre of Regulation 44/2001. PRE |
The context in which these statements were made and applied is however important. Ratio |
Both cases concerned competing proceedings between the same parties in different member states. Ratio |
Both concerned the free movement of judgments and mutual trust in the administration of justice. Ratio |
In TNT, AXA as cargo-insurer was seeking to enforce in the Netherlands a German judgment obtained against TNT, the CMR carriers, who were seeking in the Netherlands to contest the German courts jurisdiction to give the German judgment on the basis that there existed prior Netherlands proceedings in which TNT were seeki... |
The Hoge Raad referred the matter to the Court of Justice, which, after citing its familiar case law on mutual trust (including West Tankers Inc v Allianz SpA (formerly RAS Riunione Adriatica di Sicurt SpA) (Case C-185/07) EU:C:2009:69; [2009] AC 1138, para 24) held: PRE |
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. PRE |
Accordingly, Regulation 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 SpA, at para 29 and the case law cited). PRE |
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 resultin... |
Nipponkoa also concerned competing sets of proceedings. PRE |
These were Dutch proceedings in which the carriers had successfully limited their liability to the CMR limit and German proceedings in which cargo insurers were seeking to establish wilful misconduct. PRE |
On a reference by the Landgericht Krefeld, the Court of Justice held that article 71 of the Brussels Regulation precluded an interpretation of article 31(2) of CMR whereby an action for a declaration of non- or limited liability did not involve the same cause of action as a positive claim for damages in respect of the ... |
This slightly surprising way of putting the matter (in terms of the proper interpretation of CMR) contrasts with the courts confirmation in TNT, paras 58-63, that it has no jurisdiction under article 267 TFEU to interpret international agreements concluded between member states and non-member countries or, specifically... |
It is however possible to understand the decision in Nipponkoa on the basis that what the court was really doing was treating Union law in the relevant area, particularly that covered by article 29.1 of the Brussels Regulation and Owners of cargo lately laden on board the ship Tatry v Owners of the ship Maciej Rataj (C... |
How close such reasoning and decisions may be to the thinking of the European legislators when they agreed article 351 TFEU and article 71 of the Brussels Regulation is a different matter. PRE |
The present case does not concern or present any risk of competing judgments involving the same parties. Ratio |
BAT is under CMR unquestionably entitled to look to Exel for the whole of any loss which BAT can prove. Ratio |
At highest, BAT may have to pursue Essers and Kazemier in different jurisdictions, if they continue to wish to expand their target beyond Exel. Ratio |
In so far as BATs wish to do this is based on a belief that their evidential position, in seeking to show wilful misconduct, may be improved if they can join Essers and Kazemier, I cannot associate an evidential aim of this nature with any fundamental principle of Union law in the field of jurisdiction or justice. Rati... |
I add that, in so far as BAT suggest that it may not be possible to sue Essers and Kazemier elsewhere on the same basis as here, since the courts in the Netherlands would decline to recognise Exel as first carrier (since it did not actually carry the goods anywhere), the point cuts both ways, as well as leaving open bo... |
More fundamentally, as discussed in paras 44-47 above, CMR represents a balanced jurisdictional rgime adopted across a wide-range of some 55 states, only half of which are Union member states. Ratio |
I cannot regard its tailored balance as impinging on any of the principles of Union law which have been explained by the Court of Justice in the authorities discussed above, and which it is for us to apply. Ratio |
I conclude that nothing in Union law prevents effect being given to article 31.1 of CMR, under which it is clear that neither Essers nor Kazemier can be sued here. Ratio |
I add, though it is unnecessary for my decision, that I cannot believe that it is wholly inadmissible under Union law to bear in mind the interests of those third party states in a rgime which operates with some certain degree of consistency across all member states. Ratio |
Restrictions under Union law on the ordinary application of an international convention like CMR potentially undermine the uniformity and predictability that are the aim of such conventions. Ratio |
This tends to suggest that any over-riding interests of Union law should be relatively narrowly confined. Ratio |
Conclusion RPC |
Js order setting aside the service of the claim forms on Essers and Kazemier. RPC |
It follows from the above that I would allow this appeal, and restore Cooke RPC |
LORD SUMPTION: (with whom Lord Neuberger, Lord Clarke and Lord Reed agree) Ratio |
Article 34 of the CMR provides that where a single contract of carriage is performed by successive carriers, each of them is to be responsible for the performance of the whole operation. Ratio |
Under article 36, cargo interests are entitled to claim under the contract against the first and last carriers and the carrier in possession of the goods when the loss, damage or delay occurred. Ratio |
The commercial logic of these provisions points towards recognising a jurisdiction to receive claims against all three in one set of proceedings. Ratio |
Sir Bernard Rix makes a strong case for this outcome in the present case in his judgment in the Court of Appeal. Ratio |
Nevertheless, in agreement with Lord Mance, I think that the language of the CMR points clearly in the other direction. Ratio |
In the light of the Lord Mances very full analysis of the Convention, I can state my reasons quite shortly. Ratio |
Chapter V deals with Claims and Actions. Ratio |
Article 31.1 provides for legal proceedings arising out of carriage under this Convention to be brought 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 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, and in no other courts or tribunals. Ratio |
This provision cannot be limited to claims against the first or primary carrier. Ratio |
It is in terms directed to claims arising out of carriage under this Convention. Ratio |
It must therefore apply to any carrier whom the Convention makes potentially liable. Ratio |
I find it impossible to attach any importance to the fact that it appears earlier in the text than the provisions regulating the liability of second or subsequent carriers. Ratio |
As applied to actions arising out of carriage under the Convention, article 31.1 is in terms a complete code. Ratio |
It confers jurisdiction on the courts or tribunals of the jurisdiction (i) which has been designated by agreement between the parties, or (ii) where the defendant is present in one or other of the ways envisaged by sub- paragraph (a), or (iii) where the place of consignment or the contractual place of delivery are situ... |
The courts and tribunals of the place of consignment or the contractual place of delivery (case (iii) in my categorisation) have jurisdiction over all carriers who are potentially liable. Ratio |
This is because these are jurisdictions identified by reference to the transportation operation and not some circumstance specific to the proposed defendant. Ratio |
They are also identifiable from the consignment note. Ratio |
The Convention envisages that in these jurisdictions all such carriers may be sued together. Ratio |
So far, therefore, as there is a commercial imperative to have a jurisdiction in which all carriers potentially liable may be sued, that imperative is satisfied by the existence of jurisdiction at the place of consignment or the contractual place of delivery. Ratio |
Cases (i) and (ii) are different. Ratio |
In these cases, jurisdiction depends on something specific to the particular defendant, ie he has entered into a jurisdiction agreement with the claimant or is present within the relevant jurisdiction. Ratio |
Jurisdiction may be established under one of these two heads only against defendants who fulfil the stated criteria. Ratio |
There is no provision for jurisdiction to be exercisable against necessary or proper parties who do not fulfil them. Ratio |
Since in this case, England was neither the place of consignment nor the contractual place of delivery, BAT must rely on one or other of the heads of jurisdiction specific to defendants satisfying particular criteria, ie cases (i) or (ii). Ratio |
The only way in which they could claim to have agreed with Essers or Kazemier upon English jurisdiction is by showing that those companies acceded to the contracts between BAT and Exel which contained the relevant jurisdiction clause. Ratio |
The agreements between BAT and Exel are framework agreements containing the terms of the relevant contract of carriage. Ratio |
The consignment note is not itself the contract of carriage. Ratio |
It is only prima facie evidence of its existence and terms: see article 9. Ratio |
But under article 34, a succeeding carrier becomes a party to the contract of carriage only under the terms of the consignment note, by reason of his acceptance of the goods and the consignment note. Ratio |
It follows that the only terms to which a successive carrier accedes by accepting the goods with the consignment note are those recorded in the consignment note. Ratio |
These are terms of the Convention itself and any additional terms specified in Box 20 (Conditions Particulires Besondere Vereinbarungen). Ratio |
This is a wholly rational result. Ratio |
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