Going through the backlog: last week, on 26 March, the CJEU issued a judgment in Primera Air Scandinavia (C-215/18). The judgment has not yet been published in English, thus our readers may be especially keen to find out what did the Court decide in this air passenger rights case where air travel was included in a package travel contract (about the opinion in the case read here).
Compensation for a delay of a flight included in a package travel contract
The CJEU follows the reasoning presented by AG Saugmandsgaard Øe and decides that air passengers may claim compensation for a delayed flight from the operating air carriers pursuant Regulation 261/2004 also if their air travel follows from a package travel contract that they have concluded with a travel agency (paras. 31-37). As a reminder, Package Travel Directive does not contain a similar right to compensation which could lead to awarding passengers with double compensation for the same loss. This differentiates this judgment from the one in the case of Aegean Airlines where passengers wanted to claim reimbursement of a flight ticket's price, which right they also had on the basis of the PTD.
Jurisdiction
Brussels I Regulation (Regulation 44/2001) specifies which court has jurisdiction over disputes resulting from a contractual relationship, as well as provides for special jurisdiction rules for consumer contracts. One of the questions raised asked whether a claim for a compensation may be perceived as a contractual one, considering that there was no contract between the operating air carrier and the consumer, but rather between the consumer and the travel agent. The CJEU again follows the AG's reasoning and previous case law (see flightright) in applying broad interpretation to the notion of a 'contractual' claim. It is namely not relevant whether the parties in the proceedings had a contractual relationship, but instead whether the claim between them follows from a voluntarily adopted obligation of one of these parties towards the other one (paras. 45 and 48-49). Therefore, jurisdiction rules applicable to contractual claims (art. 5 Brussels I Regulation) are applicable here. However, special jurisdiction rules from section 4 on consumer contracts do not apply here, as for their applicability it is actually necessary that a contract was concluded between consumers and the defendant (paras. 59-60).
Conclusion
In the given case, as the flight was conducted between Czech Republic and Iceland, the claim could be raised in one of these two countries, as they both may be seen as places of performance of the contract. This is convenient for the passenger who was domiciled in the Czech Republic. However, if the passenger in case was domiciled e.g. in France, they would not be able to benefit from a possibility to file a claim in French courts, following the special rules on jurisdiction for consumer contracts.
This judgment is very interesting, but it needs to be mentioned that the current COVID-19 crisis shows us that in practice air passenger rights might not be very helpful. Airlines who had to cancel flights en masse in the past weeks, keep on choosing not to reimburse passengers' air tickets but rather issue them with vouchers for future flights. That is a clear breach of Regulation 261/2004. Of course, accepting the voucher does not take away consumers rights to further claim the reimbursement, but whether such claims will be successful, even if consumers decide that the hassle is worth the trouble, remains to be seen. Some authors of this blog may be the guinea pigs in the upcoming legal battles and will keep you posted!
