In a judgement delivered today, Armin and Marianne Maletic v lastminute.com GmbH, TUI Österreich GmbH, C-478/12, the Court added another brick to the implementation of the consumer protection project envisaged by Regulation 44/2001. It did so by declaring that in contract which the consumer enters with a travel agent and, indirectly, with a tour operator, the fact that the former business is established in a country different than the one of which the consumer is a resident suffices to make the regulation applicable to the tour operator, as well. This means, concretely, that the consumer can sue both companies before the "courts for the place where the consumer is domiciled" (art 16(1), Regulation 44/2001)
The question that the CJEU had to answer concerned a package holiday which had not gone as smoothly as the claimants, an Austrian couple, had hoped. The tour operator had reserved a room in a different hotel than the one which the Maletics had selected on the travel agent's website, so the couple had to pay a considerable surcharge to "upgrade" to their original choice once they found out about the mistake- which only happened when they reached Egypt!
Once back, Ms and Mr Maletic sued both the travel agency, lastminute.com, established in Germany, and the tour operator, TUI, which has a registered office in Vienna, Austria. For Regulation 44/2001 to apply, the legal relation concerned has to entail an "international" element. It was obvious that, under the Regulation, the couple could sue the "foreign" service provider before their local court of Bludenz; the lawyers assisting TUI however, claimed that all the (national) lawsuits against the company had to be filed in Vienna. Should proceedings in cases like this one be brought separately before different courts, then?
The Court of Justice held (par 30) that an interpretation allowing "split" jurisdictions in cases such as that at hand would both water down the protection that article 16(1) of Regulation 44/2001 offers to consumers and contradict one further objective of the Regulation, namely that of avoiding conflicting decisions. It is irrelevant, to this regard, whether the whole economic operation should be considered as made of one or two contracts. The fact that one of the two counterparts (and namely, in this case, the one with which the consumer has originally come in contact) was established in a different Member State is enough for the Regulation to be applicable to cases filed against both.
Users of lastminute.com and similar services should feel happy to know that this judgement makes them a little better-insured against
bad surprises- and therefore hopefully more confident, which is very likely exactly what the Court wants.
bad surprises- and therefore hopefully more confident, which is very likely exactly what the Court wants.
