Today in Poland, will enter into force the Additional Protocol to the CMR Convention 2008 r. of electronic waybill. At first glance, this is great news for the industry TSL, because transport documents digitization brings great opportunities. Unfortunately, there are serious doubts, whether the new rules will cause in Poland any legal consequences due to the wrong mode of ratification of the Protocol.
27 April 2019 r. President of the Republic ratified the protocol, a 13 June 2019 r. instrument of ratification was complex the Secretary General of the UN, What began a 90-day waiting period for entry into force of the document. However raises objections mode due ratification, which affects the protocol ratified place in the hierarchy of legislation in the Polish legal system.
Constitution It provides two ways to ratification of international agreements: with the consent of the Sejm expressed by law (art. 89 paragraph. 1) - the so-called. large ratification – and without such consent (art. 89 paragraph. 2) - the so-called. small ratification. Parliament consent is required m.in. in a situation, where an international agreement relates to matters regulated by statute (art. 89 paragraph. 1 Item 5).
Is the ratification of the additional protocol to the CMR Convention falls into this category? In my opinion yes. Regulations concerning the rules for the operation of road transport are contained in the Act - Transport Law, which according to Article. 1 paragraph. 3 also applies to international transport, if an international agreement provides otherwise. CMR Convention interfere with national law and therefore the matter already regulated in the Polish transport law. The original text of the Convention was not, Although, ratified with the consent of the Sejm, because it was not required by the regulations in force at the time of ratification (27 April 1962 r.). However, according to Article. 241 Constitution Convention should be treated as an international agreement ratified with the consent of the Sejm expressed by law, since it concerns the matter of the statutory. In consequence, the additional protocol to the Convention required the so-called. large ratification.
Meanwhile - as a result of parliamentary documents – the government has decided in this case to use the easier way and not asked for consent to the ratification of the Sejm only made a request for ratification to the President of the Republic of Poland, that has been included.
What are the legal consequences of choosing the wrong mode of ratification? An international agreement takes place in the hierarchy of different sources of Polish law, depending on, whether its ratification has taken place with the consent of the Sejm or without such consent. Agreements with the first category subside only to the Constitution and take precedence over laws, They have agreements with other rank lower than laws. At present, therefore, the CMR Convention as an agreement ratified with the consent of the Sejm takes precedence over the regulations of transport law and the Civil Code (which is applicable to the extent not in transport law).
What this means for the provisions of Additional Protocol to the CMR Convention? In the absence of consent of the Parliament for ratification provisions of the Protocol, the hierarchy of legal acts regulating international road transport will be like this:
- Convention CMR
- Right Transportation
- Code civil
- Protocol additional on electronic waybills
Because both the same CMR Convention and transport law provide, that the consignment should be issued in the form of a physical document, and not in electronic format, the provisions of the Additional Protocol must be regarded as contrary to that legislation,. However, since these are the acts of a higher order, provisions of the Protocol must give them priority, which in practice will result in a lack of use.
Of course there is a chance for it, that the jurisprudence of the courts, including the Supreme Court considers, that there is no reason to question the effectiveness of the Protocol. But as long as this does not happen, the use of electronic bills of lading will be associated with the risk of finding, that these lists have not been properly issued and with all the consequences on the basis of the CMR Convention.
Mr. Counselor question about e-cmr in practice – which fill, where, what electronic signatures? How do I actually use e-cmr?
Good morning , or in this case , class systems provider TMS , ERP , WILL eventually obliged to adapt the documents offered to the existing provisions , whether it will be more a matter of voluntary, contractual … as it is known for the documents in practice corresponds to the shipper.
Transport Law in Article 47 point. 3 It provides waybill in electronic form and is used for example in domestic. by courier.
Art. 47.
(….)
3. Evidence of a contract of carriage shall be confirmed by the carrier bill of lading, which can also be electronic transmission, computer printout or other document containing the information specified in Article. 38. One copy of the document is given to the sender.
Sir Paul, perhaps a little hastily approached the Lord to topic.
1) claim, that the provisions of the transport law required the application of physical forms of documents clearly at odds with adjustable Article. 47 paragraph. 3 pp, which, on the contrary, It seems to leave quite a large freedom in the selection of media for the bill of lading, and no right to invoke m.in. the electronic transmission, which indicates, that the term "other documents" are also documents intangible.
2) in turn, the position of the Lord, CMR regulations that require the use of physical form waybill in my opinion, you can also argue. CMR Convention defines the data minutely, which meets the objectives and offered it includes waybill, circuit determines different copies, mode of payment of additional information on the various stages of transport and provides a catalog of factual or legal transactions to the letter, However, no provision does not seem to apply rigor in written form or impose any other restrictions in this regard, So there are no obstacles to use in this regard, for example, electronic document. Is not justified position in accordance with the nature of the letter paper CMR result was typically written with the character of activities performed to this letter at various stages of transport, these activities because in the case of electronic documents have their own "digital" substitutes, and moreover, the provisions of the Act – transportation law provide for the possibility to make in relation to the bill of lading completely analogous actions, What CMR Convention, and as we already know, this does not prevent, that it took the form of electronic. Minutes matter of course considerably easier by specifying the scope of the technical requirements and additional criteria, to be met by the system, that placed in the document correspond to the traditional CMR-ce, as well as unifies these terms in the context of potential differences, that may arise from different national rules; I think, however,, that the use of electronic letter was possible under the provisions of the Convention itself, the lack of clear and consistent rules for his actions sometimes it would be extremely embarrassing – but it is possible and permissible.
3. There also seems to be, to which the Lord formulates conclusions based on fixed – believe you can, that correctly – the order of application of the acts were appropriate. Even if you set the protocol determined by the lowest in the hierarchy of the Polish Constitution of the Directives, This, after having the priority of application of the law – transportation law Article. 1 paragraph. 3 establishes a special rule of conflict, terminating its use in cases, which otherwise regulated by an international agreement, without indicating, that this agreement should be ratified in the so-called mode. "High ratification". So that same law gives priority to the use of an international agreement ratified in any manner prescribed Constitution of the Republic of Poland, and such an act is undoubtedly Protocol. Similarly, art. 775 Civil Code explicitly says, that the rules on the contract of carriage shall apply only in the absence of any contrary provisions, and thus the self-made demotion included in k.c. regulations setting them at the very bottom of the hierarchy and giving priority to any other provisions, including of course the provisions of the Protocol.
4) he requirement to use a large ratification it is not obvious from my perspective. Protocol as a matter of statutory unnecessary touches. Please notice, that no provision of the Protocol does not attempt to regulate "again" regarding any aspect. contract of carriage, even in terms of its course, procedures, relationship between the parties and participants in the principles of responsibility, on the contrary, in several places directly indicates he invariably binding nature of the provisions of the Convention. It regulates itself while the matter only electronic letter, specifying the detailed technical requirements and the application of such a formal document, he could be treated as identical to the CMR paper. This observation is indirect confirmation of the final provisions of the Protocol, for that matter covered by the Protocol shall determine the individual, separate from the convention modes of proceeding; same conventional legislator therefore gives a signal, that the scope of the two acts should be considered separable. More direct pointer is in the preamble to the Protocol, which states, that it supplements the Convention on [undefined so far] Optional rules to facilitate the issuance of an electronic bill of lading. It follows, that protocol does not apply to matters that are an integral part of the Convention, establishes for additional rules in a separate convention than the range, which is generally used only, when the parties voluntarily decide to optional, not mandatory, electronic form. In summary, the scope of the Protocol goes beyond the typical regulations on civil relations between the participants of the contract of carriage and does not seem to, that he had in any respect the statutory move matter.
Na marginesie, the preamble clearly indicates, that the intention of the parties of the Protocol was to facilitate the issuance of an electronic bill of lading, which implies the thesis, the issuing and use of an electronic bill of lading was hitherto possible and permissible under the provisions of the Convention itself, However, this could cause problems on many levels. The Protocol leaves only organizes these issues. This confirms staked by me in points 2 (previous post).