Browsing by Author "Hirsto, Jenni"

This thesis explores EU Member States competence to conclude an international convention governing multimodal transport liability, namely the Rotterdam Rules, which has been drafted by UNCITRAL and has been opened for signatures in 2009. There are several international maritime conventions currently in force and therefore possibly applicable for a contract of carriage, and this has been considered as one of the obstacles for boosting multimodal transport including a sea leg. If the Rotterdam Rules will enter into force it will be the first binding universal regime governing multimodal transport liability. 25 ratifications are required in order to the convention to enter into force. At the time of writing only 3 states have ratified the Rules, Spain being the only EU Member State so far. The main concern is whether the Member States ratifying the Rotterdam Rules would risk a treaty conflict stemming from EU law. This will be elaborated through the EU Treaties and from the position of an EU Member State. In order to have an understanding on the topic and the related problems, the thesis begins with an introductory part on the background, context and objectives of the Rotterdam Rules as well as some general remarks on the current state of affairs in Europe. The theoretical perspectives will cover international law considerations based on the Vienna Convention on the Law of Treaties as well as international maritime conventions from The Hague Rules to the pending Rotterdam Rules. Treaties on the European Union will be elaborated on the parts relevant for exercising competence in the area of transport. The possibility that EU would join the Rotterdam Rules along with the Member States is also discussed. While the Treaties may not provide comprehensive answer to the competence questions, relevant case-law of the Court of Justice of the European Union will be elaborated also. The Union is becoming increasingly active in transport matters. The Commission has already issued several White Papers in the field of transport. Strategic plans have been made and expert groups established for planning a regional transport regime. It will be argued that the competence of the EU has considerably expanded through the judicial activism of the Union institutions and the Court of Justice. Although the Lisbon Treaty was aimed to clarify the competence questions, the attempt was not very successful. Many ambiguities are left and these would require further clarification. The Commission and the Court have often taken a rather protective stand. The EU law shall prevail over anything else. The Union values such as unity and coherence have been used as a recourse to concerted action. Also based on the case-law it seems evident that the principles of EU law such as the duty of loyal cooperation have at times been interpreted so as to render shared competence meaningless. As the case-law suggests there are obvious risks for the Member States autonomous action. Even if the Member States possess competence they may be pre-empted to act. Under the shared competence the Member States may only exercise their competence to the extent that the Union has not exercised its competence or has ceased exercising its competence. At the moment the Union has not exercised its competence on the area of multimodal transport liability, it is therefore contended that for the time being the competence lies with the Member States. The main argument of the thesis is that there is no treaty conflict foreseeable between the Rotterdam Rules and the Treaties. But there is a risk of conflict anyway. The conflict would stem from diverging interests and thus be a clash of values. If the Union would choose not to conclude the Rotterdam Rules but rather continue developing its own regime, this may be a problem for those Member States who have concluded the Rotterdam Rules. Of course on the condition that the Rotterdam Rules eventually enter into force. The poor record of signatures may imply that the Member States are not confident on their competence but it may also imply dissatisfaction with the substance of the Rotterdam Rules. It is recommended that the Member States cooperate with the Union institutions in order to avoid conflicts. A mixed agreement would be one option but that may entail practical problems as it leaves the competence questions intact. Lastly it will be elaborated whether a universal regime on the multimodal transport is achievable at all.