The internal market and private international law regimes : a comment on Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG, judgment of the Court (Grand Chamber) of 4 May 2010

Abstract

In case C-533/08 TNT Express, the Court of Justice interpreted Article 71 of Regulation 44/2001 (the Brussels Regulation) which provides that the 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’. The Court held that the provision must be interpreted as including the implied condition that the specialised conventions referred to can only apply to the extent to which they do not undermine the ‘underlying principles’ of the Brussels Regulation, including the principles of mutual trust and free movement of judgments. The Court also found that it had no jurisdiction to interpret the specialised convention at issue in this case. The judgment is important for the development of private international law in the EU and for the EU as a locus for the development of private international law, regionally and globally. The Court has effectively decided that certain principles which underlie the policy field are constitutional in nature and non-derogable even where the legislature has chosen to limit the scope of harmonisation and thus the degree of uniformity in the Union system and to leave space to an international regime. Thus certain choices in the creation of the area of freedom, security and justice are removed from the political agenda. This paper offers a critique of the Court’s approach on a number of points, the aim being to try to tease out the implications of the ruling and to offer a different perspective.