FEB Transwide seminar Jan 21 2003 Legal

FEB – Transwide seminar Jan, 21, 2003 Legal aspects of the e-CMR n n Etienne Wéry Attorney at Law (Brussels and Paris Bars) Lecturer at Strasbourg and Paris-Sorbonne universities « Ulys » founding partner

CMR : main legal framework CMR Convention

The importance of federations minister decree, 8/5/2002, art. 33 : n Who can issue ? : FEBETRA, UPTR, SAV n To whom ? Even to enterprises that are not members of these associations. n Payable ? Yes.

Obligations of federations n n n To keep a record, during at least 5 years, including : date of issuance, name and adress of the enterprise to whom it is issued, number of CMR, a unique number for each CMR (the « B » number) ; To allow controls by qualified persons ; If required by a qualified person, to provide a photocopy of this record.

Formal requirements of the CMR The « 3 originals » (at least) rule n « trois exemplaires originaux, conformes au modèle fixé par l'annexe 8 » - « drie originele exemplaren, overeenkomstig het model bepaald in bijlage 8 » (minister decree) Which CMR ? n Only the authorized model (annex 8) When and how to fill the CMR ? n n Before transport, all fields must be filled, except 16 Fields 6, 7, 8, 9, 11 et 13 must be filled only if necessary Signature ? n « signature and stamp » (see model)

CMR : the workflow n n n #1 if for the sender #2 is for the consignee #3 is for the carrier Must be « on board » and accompany the goods – must be presented to qualified persons for control purposes # 3 must be kept at least 5 years and be presented to qualified persons for control purposes Can be stored on any other information medium if easily readable and printable in whole

E-CMR : some key-issues n n n Is the monopoly of federations in conflict with the e-commerce directive ? Can federations respect their obligations in an electronic world ? Does this monopoly prevent the e-CMR ? Is e-CMR legally possible today ? The « mobility » , « remote » and « representation » constraints ?

Monopoly and e-comm directive Art. 4 e-comm. dir. : « Member States shall ensure that the taking up and pursuit of the activity of an information society service provider may not be made subject to prior authorisation or any other requirement having equivalent effect. BUT Paragraph 1 shall be without prejudice to authorisation schemes which are not specifically and exclusively targeted at information society services (…) » Belgian law does not seem to be, as such, incompatible with e-comm. directive if the monopoly is not specifically and exclusively targeted at information society services. May be in competition law … ?

Monopoly and e-comm directive Art. 3 e-comm. dir. : « Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State » . Coordinated field : « requirements laid down in Member States' legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them » . It seems that Belgium could not prevent a foreign information service provider from making business in Belgium – Our entreprises might be in a worst position than foreign ones !

Does this monopoly prevent the issuance of a e-CMR ? n n No, provided that there is an agreement between a federation and the e-CMR provider. Cf. Transwide-FEBETRA agreement.

The obligations of federations in an electronic world n It’s all about storage n Dir. 2001/115 (20/12/2001) on e-billing

Is e-CMR legally possible ? Step 1 : re-read the signature and stamp requirement n The requirement : n The legal framework on e-signature : nondiscrimination principle (all e-sign. ) and assimilation principle (perfect e-sign. )

Is e-CMR legally possible ? Step 2 : a curiosity about the « 3 originals rule » n n n In the law : « Le Roi détermine 1° les différents modèles de lettres de voiture ainsi que les indications qui doivent y figurer ; 2° le nombre d'exemplaires des lettres de voiture ainsi que l'usage qui doit en être fait » ; in the royal decree : « Le Ministre détermine : 1° les différents modèles de lettres de voiture ; 2° le nombre d'exemplaires des lettres de voiture, à qui ils sont destinés ainsi que les indications qui doivent y figurer » ; In the minister decree : « trois exemplaires originaux, conformes au modèle fixé par l'annexe 8 » The « original » requirement is created by the minister decree despite the fact that the law only allow it to decide the number, but it’s in line with the CMR convention. This said, it can be questionned in terms of constitutional law. Other solution : it only means that the 3 versions must be identical ; in this case, it is not an obstacle to e-CMR

Is e-CMR legally possible ? Step 3 : what is an « original copy » ? The CMR legal framework : 1. n n The law does not refer explicitely to a written document #2 and #3 must be on board and accompany the goods #2 and #3 must be presented to qualified persons for control purposes #3 can be stored on any other information medium if easily readable and printable in whole The general legal framework : 2. n n In some countries, « original copy » means « signed » In other countries, « original copy » means « respect of integrity »

Is e-CMR legally possible ? In the CMR legal framework, the meaning is not clear. Nothing explicitely forbid the usage of an e-CMR, especially between the parties. The storage is not a problem. Situation is more touchy in terms of controls : will qualified persons be satisfied with an electronic device ? The question is of few interest in an electronic world : a document signed with a perfect e-sign. respect both of these requirements as well as the CMR legal framework

Intermediary conclusion n n There is no clear red-flag for e-CMR ; The parties can already arrange their legal situation through a contract ; The key-problem is mainly practical and relates to the control : will qualified persons easily accept to rely on an electronic device ? An e-CMR based on a perfect e-sign. must be accepted ; Intermediary solution : e-CMR (not especially based on a perfect e-sign. ) between parties + paper CMR for control purposes

« Mobility » , « remote » and « representation » constraints The constraints n n n Mobility : filling the CMR and electronically signing it at any place, whether or not there is a computer and an internet access available ; Remote : these operations are sometimes necessary far from the normal place of operations ; Representation : the sender, consignee and carrier are represented by a physical person

« Mobility » , « remote » and « representation » constraints The main issue : the requirements of a perfect esign. : n Qualified certificate (QC) 1. 2. 3. n To a company / to an individual acting on behalf of the company ? The issuance « on the spot » by a qualified SP The storage, the medium and the verification of the QC Secure signature-creation device The answer : n n The answer to the machine is, at least partially, in the machine Towards a remote electronic signature, may be with an electronic agent ?

General conclusion n n At that stage, it is possible to build a full-electronic system between the parties, but the paper might still be necessary for control purposes It is recommended to clarify the situation in the law If the e-CMR provider can build a system using a perfec e-sign. , the e-doc. signed with such a signature is considered just as a paper (assimilation principle) In fact, e-CMR is more liable than paper CMR (readable, integrity taking into account further annotations, storage and retrieval, lisibility, immediate control, etc. ) It’s feasable but it’s a hard job : the first one takes it all