Doubtful changes in CMR

The first entry in this blog was to cover the legal effects of entry on 21.02.2011 r. effect of changes in the CMR Convention on the Polish accession to the Protocol of 1978 r. Exploring the topic, I came to the conclusion, that it is not certain, whether these changes at all in force. This resulted in the creation of text, which proved to be in the Republic on 19.03.2011 r.:

In many places (m.in. on the website of the United Nations) is given, that on 21.02.2011 r. Poland came into force the Protocol of 05.07.1978 r. to the Convention on the Contract for International Carriage of Goods by Road CMR (hereinafter referred to as the Protocol). Unfortunately, there are serious doubts, is it really part of the protocol on that day were successfully incorporated into the Polish legal system.

Significant changes in the Convention

That protocol significantly changes the rules of the Convention. In its original version, in accordance with Article. 23 paragraph. 3 the carrier's liability for damage in the goods arising out of carriage was limited to 25 gold francs (Germinal franków) per kg weight of damaged goods. For gold franc and the Swiss franc is considered the weight 10/31 grams of gold of a fineness 0,900. The new regulations replace the existing limit on the equivalent 8,33 SDR or Special Drawing Rights - a monetary unit, exercised by the International Monetary Fund calculated at the rate of several currencies (euro, Japanese yen, pound sterling and U.S. dollar).

Change significantly affects the situation of thousands of Polish carriers and insurance. Taking into account the rates for both units based on the days 31.12.2010 r. (zloty exchange rate franc is given only once a quarter) New regulations mean digit increase in the amount of the liability limit 28,35 zł per kg to 38,26 zł per kg.

No publication

In the case of such a significant change in the rules you would expect such behavior of the legislature, will not raise doubts about the validity of the new regulation. Unfortunately, in the case described, the introduction mode of the Protocol to the CMR Convention into Polish law must raise serious concerns.

First of all, attention should be drawn, that to date (22.02.2011 r.) neither the text of the Protocol to the CMR Convention in Polish, or statement by the government for its ratification has been announced in the Official Gazette. Moreover, the information obtained at the Government Legislation Centre shows, also that in the near future you can not rely on this publication. The mere instrument of ratification of the Protocol was signed by the President on 27.10.2010 r. i deposited with the depositary of the Convention on 23.11.2010 r. (because according to the provisions of the Protocol shall enter into force on the ninetieth day after the deposit of its instrument of ratification of the depositary, is given, that the effective date is the 21.02.2011 r.). Competent authorities therefore had almost three months to make any publication in the Official Gazette, which according to Article. 18 paragraph. 1 Act of 14.04.2000 r. international agreements should be promptly.

Given the above, it is highly doubtful, if indeed the changes are valid CMR. Although according to Article. 88 paragraph. 1 Constitution of the notice is a condition of entry into force only acts, regulations and enactments of local law, but they can not be, that Polish citizens may be bound to act, which is not announced anywhere, especially when the act increases the duties of some entities and grants rights to other. This situation is incompatible with the constitutional principle of a democratic rule of law. Applying the new rules also prevent the prosaic fact, that few people are aware of, changes that have taken place at all. Characteristic, that the changes no way to know with any of the leading programs with a base of existing legislation as well as from Internet System of Legal Actions conducted by the Sejm.

No consent to the ratification

No announcement of the Protocol, to some extent is associated with more serious charges, How you can bet the new regulation. Ratification was in fact made without the consent granted by statute, which in my opinion was required pursuant to Article. 89 paragraph. 1 Constitution. In support request the Minister of Infrastructure for ratification of the Protocol the lack of any argument for withdrawal of permission granted by statute. Refers only to statements, that since the protocol does not meet the criteria set out in Articles. 89 paragraph. 1 Constitution, its ratification can take place without statutory consent.

Because this position can not be accepted. W myśl art. 89 paragraph. 1 Item 5 Constitution of statutory consent to ratification is necessary m.in. for the matters regulated by statute. The Polish legal system the carrier's liability for damage to road transport is regulated in the Civil Code and the Act of 15.11.1984 r. - Transport Law. The last act in the art. 1 paragraph. 3 is at the front, that it applies also for international, if an international agreement provides otherwise. There is no doubt therefore, that provisions of the CMR Convention interfere with the Polish legal regulations and exclude their application in the specified range for the international carriage of goods by road. If it were not in force CMR Convention, the same legal relationship subject to the regulations of Polish acts. So it should not raise objections a statement, that if the CMR Convention was now introduced into the Polish legal system, its ratification of the agreement would need expressed in the Act. The same requirement must apply for the amendment of the Convention contained in the described protocol. It is unacceptable because such an interpretation of the Constitution, which implies, that as a statutory matter is already regulated in the international agreement, This change in the contract no longer requires the consent granted by statute. Such an interpretation would allow the executive to interfere in the powers of the legislature.

Notwithstanding the foregoing, it should be noted, that the need to obtain consent granted by statute to ratify the Protocol also evident from Article. 89 paragraph. 1 Item 2 Constitution, because its content relates to civil rights set out in Articles. 64 Constitution, which forms, that are protected m.in. property and other property rights. By increasing the liability of carriers to shippers, Protocol, in fact interfere with the content of property claims against carriers. And insurance carriers, that insure their activities, as a result of changes in the CMR Convention will be in a completely new legal situation, which may result in loss of significant amounts of cash. This will in particular insurance, that even the financial contributions, usually assume the limit of liability provided for in the Convention.

For these reasons, a ratification of the Protocol raises serious doubts as to its compatibility with Article. 89 paragraph. 1 Constitution.

Incorrect translation

In light of these allegations completely on the margins can be reported incorrect translation of the Memorandum of. According to the original text of the Protocol conversion of the value 8,33 SDR should be in local currency at the date of the judgment (the. „date of the judgement”, frank. "Date of judgment", niem. "Day of Judgment"). In the report accompanying the proposal of the Minister of Infrastructure of Polish ratification of the text of the Protocol "the day the judgment" was translated as "the day of assessment", which significantly distorts the meaning of the text. At the moment, however, can not be held, whether this was the final content of the Polish text of the Protocol, because, as mentioned above, to date it has not been published.

Need to examine the constitutionality of the Protocol

CMR Convention is one of the cornerstones of the business of international carriers. For this reason, the situation is undesirable, when there are doubts as to whether, if properly introduced into the Polish legal amendment to the Convention under the Protocol. It therefore seems, that it would be reasonable, to any of the entities mentioned in Article. 191 Constitution (This could be eg. professional organization grouping of international carriers) asked the Constitutional Court to examine the compatibility of the Protocol to the Constitution of the mode of its ratification and publication.

See also the next entry in this case: Changes in the CMR Convention finally published