Electronic CMR Consignment Note (e-CMR)- Reality or Fiction?
The CMR Convention1 (hereafter also: the convention) has been signed in Geneva on 19 May 1956. The aim of the 9 states2 who initially signed it was to establish a stable and predictable legal framework, governing some of the most significant civil law aspects of the international carriage of goods by road- in particular, the aspects related to the documents used for such carriage and the carrier’s liability. The significance of these two aspects has been raised to such a level that the whole convention’s Preamble was dedicated solely to them even though the main convention’s text (obviously) covers many other important aspects related to the transport of the goods by road too.
By taking care of many issues related to the international transport, the CMR convention doubtlessly played a significant role in the process of getting the European economy and infrastructure rebuilt after the end of the World War II. Transports related to high risks (attributable either to the value of the goods, to the possible delivery delays or to other aspects) which were either hardly available or extremely expensive were made more feasible and accessible once the CMR convention was enforced. The latter namely not only introduced the uniform rules regulating the contents of the consignment note (which in turn simplified numerous procedures both on the business-to-business as well as on the business-to-authorities level), but it also limited the carriers’ liability (both for loss and delay) and established a legal framework dealing with many other transport related issues (e.g.: sale/disposal of non-deliverable goods, customs related procedures, burden of proof, reservations related to the quality of the transport service, statute of limitations, court jurisdiction, etc.).
By taking care of this, the CMR Convention doubtlessly made a significant contribution to the economic development of the countries who initially signed it or have acceded/succeeded it later. After 65 years of being in force (and after being amended twice- once in 1978 and then in 2008), it now represents an important piece of legislation regulating any international road transport of goods being initiated or ending in one of the 58 countries3 participating in the convention (Art. 1, Paragraph 1 of the convention).
In 1956, the convention seems to have been ahead of its era. It was a result of a consensus achieved between 9 sovereign European countries in the time when the old continent was only at the beginning of its path to its present-day unification (the European Coal and Steel Community was established no more than 5 years earlier, while the European Economic Community and EURATOM became reality one year later). The convention successfully addressed some of the issues which were burdening and hindering the international trade at that time. It was opening the gate to the free trade which seems (too) self-evident in the present-day Europe.
In other words- the CMR convention was in many ways (along with some other transport related instruments such as CEMT in 1953, TIR in 1959 and ATA in 1961) breaking new ground and leading the way. And it continues to do so in the 21st century too.
In the 1950s, the authors of the convention understood that a uniform consignment note is a condition sine qua non for a successful and prosperous international transport and- consequently- for the international trade. Therefore, they established a set of rules defining the major contents of such a note. Back then, the landline phones were rare, and the computers were non existing. The first IBM PC was introduced some 30 years later, and it took almost another 30 years till the internet became readily accessible practically everywhere (through the development of a smartphone enabling access to the internet at any given moment and at any given location).
Having said that, a paper based CMR consignment note (the form of which has been harmonized in 1976 by the IRU4,5) was the only imaginable option for decades. However, as soon as the IT and communication technology advanced to a sufficient level, the electronic (paperless) consignment note became an option. Similarly as in the 1956, the authors of the CMR convention comprehended this very early and, consequently, the Additional Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR) concerning the Electronic Consignment Note (hereafter also: the Protocol) has been made available for signing in 2008. Until today (July 2021), 29 countries have adopted this Protocol6. In Slovenia, for example, the Protocol came into force 4 years ago, on 24 June 2017.
However, even though the framework enabling the use of the e-CMR consignment note has been in place for several years now, the e-CMR consignment note still remains more a fiction than a day-to- day business reality. There seems to be a set of reasons causing this. In order to understand them one must first comprehend the basic backbone structure of the whole e-CMR concept. Therefore, a short introduction of the latter is a must.
The Protocol defines the e-CMR consignment note as “a note issued by electronic communication by the carrier, the sender or any other party interested in the performance of a contract of carriage to which the Convention applies, including particulars logically associated with the electronic communication by attachments or otherwise linked to the electronic communication contemporaneously with or subsequent to its issue, so as to become part of the electronic consignment note.”7
According to the Protocol, the e-CMR consignment note is deemed to be fully equivalent to its paper- based counterpart8 and contains the very same particulars as the latter9. Consequently, it enables the interested parties to insert any relevant information10 into it at any given moment in time during the transport operation, very much the same way as this is done when the (commonly known) paper- based CMR consignment note is used. The authentication of the e-CMR consignment note takes place through the application of the “reliable electronic signature” or “by any other electronic authentication method permitted by the law of the country in which the electronic consignment note has been made out”11 Besides this, the Protocol is very clear when it comes to the alterations of the e- CMR consignment note; they are allowed (subject to the conditions of the main text of the CMR Convention), however, they must be done in a way ensuring the protection of the consignment note’s integrity. In other words: although certain alterations to the e-CMR note are made in due course of the transport operation, these alterations may not alter (overwrite) the existing e-CMR note’s data. According to the Protocol, the integrity of the e-CMR consignment note is ensured “when (its) particulars have remained complete and unaltered, apart from any addition or change which arises in the normal course of communication, storage and display.”12
As shown above, the Protocol is very strict in the sense of integrity and security issues of the e-CMR consignment note. However, it does give the interested parties a wide range of freedom when it comes to questions how these issues are implemented. It namely enables13 the parties to autonomously decide how the CMR waybill shall be issued and delivered, how its integrity shall be assured, how the parties having certain entitlements emerging from it shall be able to demonstrate them, how the delivery of the goods to the consignee shall be confirmed, how shall the procedures for its amending look like and how shall it be (if need be) replaced by a consignment note issued by different means (e.g. in a paper-version). The Protocol also enables the parties of a contract for the international carriage of goods to exchange other documents pertaining to the CMR consignment note (such as the list of documents handed to the carrier and the customs related documents) in e-form.14
Having said that, the e-CMR consignment note seems to encompass all classic characteristics of a paper-based CMR consignment note as well as a wide span of benefits of a modern-day electronic (IT and internet based) means of communication. Therefore, it is expected at least a.) to lower the business expenses of all the subjects involved in logistical operations (reduced need of hand-based data entry, no paper handling, no need for faxing or scanning or exchanging letters, no archiving of paper, the data from the consignment order/customs declaration are easily transferable to the e-CMR consignment note etc.), b.) to enable virtually instant information exchange (monitoring of the delivery status in real time; instant exchange of information related to any transport peculiarities- e.g. the exchange of photos evidencing damage to the goods) and swifter as well as flawless invoice issuance, c.) to decrease the amount of errors in the process of taking over the goods and delivering them, d.) to prevent the problems related to the illegibility of certain consignment note parts, e.) to eliminate the problems related to the loss/destruction of a paper-based consignment note, f.) to enhance the efficiency, accuracy and the speed of the administrative procedures conducted by the taxation, customs and other authorities and to reduce the fraud risks (also when it comes to VAT issues related to the proof of delivery of the goods to another country- e.g. in the so-called procedure 42), and even g.) to improve the efficiency of various accident response procedures (e.g. the e-CMR consignment note can be linked to the “e-Call” system15- a system for trucks that automatically contacts appropriate emergency services in the case of an accident).
So- how does it work?
Basically, according to the Protocol, the whole idea behind the e-CMR consignment note is to make sure it retains all the specifics of its paper-based counterpart while upgrading them to a higher level by invoking the benefits of the modern-day e-commerce. Therefore, the system is designed to keep the e-CMR consignment note safe on a digital platform and ready to be used, reviewed and amended by subjects holding appropriate rights to do so. According to this, the truck driver has the possibility to access the note via his onboard IT system (either a laptop computer, a tablet or a smartphone) while the note itself is being kept on a server platform. In case of an inspection during the course of the transport, the authorities can do the same- they can instantly gain the relevant data contained within the note by using the IT communication tools available to them. The access is ensured through the use of a unique QR code being linked to the specific e-CMR consignment note (the driver keeps the said QR code on his onboard IT system and shows it to the authorities who then scan it and hence get instant access to the specific e-CMR consignment note linked to this code). The shipper and the consignee also access the note in the very same manner. They have the possibility to read it as well as to insert various comments and reservations into it (e.g., regarding the accuracy of the statements in the consignment note as to the number of packages and their marks and numbers, regarding the apparent condition of the goods and their packaging, regarding the loss or damage to the goods, regarding the delay, regarding the inappropriate state of the vehicle, etc.16). All these records remain available to all the participants of the logistic operation in an easily legible way while the possibility of having a previous record erased or overwritten is made impossible. In paper-based CMR-consignment notes, the signatures are a common problem, mainly due to their frequent illegibility or due to the fact that it is virtually impossible to verify whether their authors are actually the subjects having proper authority to sign the note. When it comes to the e-CMR consignment note, this problem does not emerge due to the fact that all the signatures can only be made by authorised subjects. This is ensured through the use of unique PIN or QR codes. Hence, at the end of the transport operation, the whole e- CMR note is clear, unambiguous, and ready to be shared in an instance (e.g., as a PDF) or printed out on a paper (if need be).
The whole e-CMR consignment note concept seems to have a lot of pros and hardly any cons. The question therefore remains- why has it still not been implemented into the daily transport industry routine despite the fact that very much all the other industry branches have adopted their processes to the modern-day e-commerce standards?
There are several reasons for that. One of them lies surely within the fact that a significant number of CMR Convention member states still has not adopted the Protocol yet- namely: Armenia, Austria, Azerbaijan, Bosnia and Herzegovina, Croatia, Cyprus, Georgia, Germany, Greece, Hungary, Ireland, Italy, Jordan, Kazakhstan, Kyrgyzstan, Lebanon, Malta, Mongolia, Montenegro, Morocco, North Macedonia, Pakistan, Serbia, Syrian Arab Republic, Tunisia, Turkmenistan. Until such countries exist, their authorities shall not bear the obligation to treat the e-CMR consignment note as being equivalent to the paper-based one. And until this is the case, the transport companies shall (while being affected by a high level of competitiveness and by a low level of available profit margins) for simplicity reasons tend to use one system alone rather than to swap from one to another. Hence- until the paper-based system remains the only one accepted in all the CMR Convention signatories (until all signatories decide to adopt the Protocol in full) the e-CMR consignment note shall remain in the shadow of its hard-copy counterpart.
The other reason for the painfully slow implementation of the 13 years old Protocol lies also within the fact that it leaves a wide range of freedom to the e-CMR consignment note users when it comes to the question of how such a note is issued, delivered, amended and stored (Article 5 of the Protocol- see above). In other words: the parties are free to use whatever e-CMR consignment note IT-platform they desire, as long as this platform meets the security standards foreseen by the Protocol. As mentioned above, the paper-based CMR consignment note known in the day-to-day transport industry has been proposed by IRU in 1976 and widely adopted ever since. However, no such unilaterally accepted IT- platform has been adopted (yet) when it comes to the e-CMR consignment note (although the UN/CEFACT e-CMR model has been proposed- similarly as the paper counterpart in 197617). Consequently, several providers presented their IT-solutions to the market- e.g., TransFollow18, Collect+GO19, PIONIRA20, DASHDOC21, LZP22, TRANSBOOK (TRINET-Slovenia)23 and others. Consequently, the question of their compatibility and interoperability arose.
Of course, when it comes to the EU member states, things shall eventually change when the Regulation (EU) 2020/1056 of the European Parliament and of the Council of 15 July 2020 on electronic freight transport information (hereafter also: the Regulation)24 is fully enforced (21 August 202425). The EU namely comprehended the obstacles preventing the application of various e-based systems in the transport sector (see e.g., recitals 3-6, 8, 9-13 etc. of the Regulation) and approached them by adopting the Regulation, aiming to establish a uniform legal framework to support the so-called intelligent transport systems (ITS) with electronic freight transport information (eFTI) platforms. However, the Regulation shall only apply to EU member states. It shall not be legally binding for the other CMR Convention signatories which have also signed (or shall sign) the Protocol, but are not the members of the European Union.
The e-CMR consignment note is a must. However, both the industry and the governments (authorities) shall need to see it as an opportunity, rather than as a burden. Until the whole e-system evolves to the fully paperless stage, being available at all times and on every location in every single CMR Convention participant (i.e., until it is fully accepted by all parties and every single authority in all CMR member states), this goal shall remain a hard one to reach. Therefore, it is crucial for the UN as well as the governments of the states participating in the CMR Convention to adopt not just the Protocol alone but also certain detailed uniform rules which shall allow its full implementation across the map covered by the CMR Convention. Until then, the paper based CMR consignment note shall continue to preserve its dominance despite the fact that the obvious benefits of its e-counterpart are already accessible through the availability of the modern IT and communication technology.
Law firm Velkaverh, Štravs, Podgornik o.p., d.o.o. Koper, Slovenia
Aleš Štravs, attorney at law, partner
1 Original English Name: The Convention on the Contract for the International Carriage of Goods by Road; Original French Name: Convention relative au contrat de transport international de Marchandises par Route
2 Austria, France, Luxembourg, Poland, Sweden, Switzerland, West Germany, the Netherlands, Yugoslavia
3 Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iran, Ireland, Italy, Jordan, Kazakhstan, Kyrgyzstan, Latvia, Lebanon, Lithuania, Luxembourg, Malta, Mongolia, Montenegro, Morocco, Netherlands, North Macedonia, Norway, Oman, Pakistan, Poland, Portugal, Moldova, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Tunisia, Turkey, Turkmenistan, Ukraine, United Kingdom, Uzbekistan (https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XI-B-11&chapter=11&clang=_en)
4 World Road Transportation Organisation: https://www.iru.org/resources/iru-library/iru-cmr-model-2007
6 Belarus, Belgium, Bulgaria, Czech Republic, Denmark, Estonia, Finland, France, Iran, Latvia, Lithuania, Luxembourg, Netherlands, Norway, Oman, Poland, Portugal, Moldova, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tajikistan, Turkey, Ukraine, United Kingdom, Uzbekistan (https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XI-B-11-b&chapter=11&clang=_en)
7 Article 1 of the Protocol
8 Article 2, Paragraph 2 of the Protocol
9 Article 4, Paragraph 1 of the Protocol
10 e.g.: demand, declaration, instruction, request, reservation or other communication (see Article 2, Paragraph 1 of the Protocol)
11 Article 3 of the Protocol, Paragraphs 1 and 3 12 Article 4, Paragraph 2 of the Protocol
13 Article 5 of the Protocol
14 Article 6 of the Protocol
16 see e.g. the Articles 8, 9. 10 and 30 of the CMR Convention
17 http://www.unece.org/fileadmin/DAM/cefact/brs/eCMR-BRS-V_01.zip https://unece.org/fileadmin/DAM/cefact/Standards/eCMR/01_BRS_eCMR_v1.pdf
24 OJ L 249, 31.7.2020; https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32020R1056 25 Article 18 of the Regulation