Delayed bags, immediate compensation rights - CJEU in Iberia (C-292/24)

On June 5, the CJEU issued a new judgment interpreting the Montreal convention, which governs rules for international air carriage, in the case Iberia (C-292/24). 

The case arose when passengers traveling from Frankfurt am Main (Germany) to Panama City (Panama), with a layover in Madrid (Spain), discovered that their checked-in luggage had not arrived in Panama. They reported the baggage as lost to Iberia and informed the airline that, unless they received an update within three days, they would buy replacement items and continue with their travel plans - which they ultimately did. They also had to rebook their outgoing flights from Panama City due to the delay. The luggage was eventually delivered to Panama City five days after their scheduled arrival. The passengers subsequently sought reimbursement for the cost of replacement items, additional travel expenses, and the rebooked flights. 

The legal question concerned the interpretation of the reporting deadlines set out in Article 31(2) of the Montreal Convention in cases of delayed or lost baggage. Article 31(2) states that 

'the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.'

The key issue was whether this deadline prevents passengers from claiming compensation for damage caused by a baggage delay before the baggage is returned, or whether they may do so only after they receive the baggage as the full scope of their damage may only then materialise. 

The CJEU adopted an interpretation of Article 31(2) of the Montreal Convention that is favourable to passengers. It held that passengers may submit a claim for damages arising from delayed baggage before the baggage is returned. According to the Court, the 21-period specified in Article 31(2) marks the latest possible moment to file a complaint - but not the earliest (para 20). By applying a literal interpretation of the provision, the CJEU found that passengers are entitled to submit a claim for compensation at any time between the moment their baggage is delayed and the expiry of the 21-day period following its return (para 21). 

Interestingly, the CJEU also noted that this interpretation benefits air carriers, as well. Early notification allows airlines to investigate the situation promptly, potentially mitigating the damage, and collect evidence to demonstrate that they took all reasonable steps to prevent the harm (paras 29-30).

CfP: Collective Redress and Digital Fairness, deadline 1 June 2025

Dear readers, 

a quick note to highlight a great conference opportunity at the University of Amsterdam. 

The organisers of the conference "Collective Redress and Digital Fairness", which will be held at the University of Amsterdam on 10 and 11 December 2025,  have issued a call for papers open to scholars and practitioners who are interested in engaging with the conference's broad theme, namely "the intersection of collective redress and digital fairness, understood as the equitable treatment of individuals and society in the digital space" and who will bring an own insight with emphasis on (but not limited to) a number of central questions:

• 

  CfP flyer

  What are the theoretical and normative foundations of collective redress?
• How effective is collective redress in the digital legal sphere at international, European, and national levels?
• How do digital rights intersect with other branches of law (e.g., consumer and competition law), and what does this mean for collective actions?
• What impact does litigation have on the compliance and governance of digital corporations?
• How do private and public enforcement interact, and what role do collective actions play within this regulatory framework?
• What is the role of private law and private law remedies in shaping digital fairness, and how does it constrain or contribute to collective redress mechanisms?

Contributions may focus on procedural and substantive law aspects, as well as theoretical, doctrinal, and empirical studies from national, European, and transnational perspectives. 

Thanks to sponsoring by the Dutch foundation for Collective Actions research, selected speakers will be provided one night of accommodation in Amsterdam and a reasonable travel budget. How to apply? You find the submission requirements on ACT's website and in the flyer! Deadline for application is 1 June 20225.

Passenger rights when flights are cancelled - CJEU in flightright (C-642/23) and Qatar Airways (C-516/23)

On January 16 the CJEU issued two judgments further interpreting Regulation 261/2004 on air passenger rights, in the cases flightright (C-642/23) and Qatar Airways (C-516/23). 

flightright (C-642/23)

A passenger booked via a tour operator a flight operated by Etihad Airways from Düsseldorf (Germany) to Brisbane (Australia), via Abu Dhabi (UAE) with an open return ticket. The flight from Düsseldorf to Abu Dhabi was cancelled and the tour operator declared insolvency before reimbursing the cost of the ticket. The passenger's father contacted the air carrier on their behalf and agreed to a change of the reservation, as well as a few steps of compensation, consisting of redeemable miles for EA flights to the value of the payment made, additional miles of ca 380 Euro, and further 5.000 Etihad Guest Miles. The passenger was required to set up a loyalty account with EA to obtain compensation, which they did. Unfortunately, the credit of the miles did not take place.

The legal question in this case was whether the passenger validly accepted the offer of the air carrier, to be compensated in redeemable miles/flight vouchers, considering that they have not provided their 'signed agreement' as is required by Art. 7(3) Regulation 261/2004. Could the action of setting up a loyalty account with the air carrier, to which the miles would have been transferred, be equivalent to a handwritten signature? (para 18) The question is highly relevant, considering that the Regulation 261/2004 priorities monetary compensation for passengers, while in practice air carriers often attempt to provide compensation via vouchers. The requirement of a signature can prevent passengers from unknowingly or erroneously agreeing to give up their right to monetary compensation, demanding their free and informed consent (para 22). Previously, the CJEU recognised that also other forms of providing express, definitive and unequivocal acceptance of reimbursement in vouchers are acceptable, e.g., a consumer filling in a form on air carrier's website and choosing in it compensation in vouchers (para 23). A handwritten signature is, therefore, not required (para 25). However, setting up a loyalty account with an air carrier does not need to amount to this form of acceptance, as a passenger may have had other intention when taking this action (para 27).

Qatar Airways (C-516/23)

Passengers in this case reserved return flights with Qatar Airways from Frankfurt am Main (Germany) to Denpasar (Indonesia), with a stopover in Doha (Qatar). They benefitted from a promotional campaign for health professionals, which allowed them to make a reservation by only paying for taxes and charges related to the booking. QA cancelled reserved flights. Further, no flights were operated to Denpasar by this carrier during the following period of 1.5 years. When the flight route was renewed the passenger demanded re-routing of their previously cancelled flights. As the carrier did not comply, passengers reserved the new flights themselves, paying partially with their frequent flyer programme's benefits for the new flights.

As per Article 3(3) Regulation 261/2004 its provisions do not apply to passengers travelling 'free of charge or at a reduced fare not available directly or indirectly to the public', the first question was as to the applicability of passenger protection rules to this situation. The CJEU decided that Regulation 261/2004 remains applicable here. The main arguments are based on the literal and contextual interpretation. First, the phrase 'free of charge' is normally interpreted in a way, which precludes passengers who pay taxes and other charges from being included in its scope (para 25). Second, other rules regulating air travel (Art. 23 of Regulation No 1008/2008) consider taxes and charges as elements of the total price of the plane ticket (para 26). Third, reduced fare is available to the public, even if it is not available to all members of the public, but e.g. only to health professionals (paras 34-36, 38). 

Finally, Article 8(1)(c) Regulation 261/2004 allows passengers to ask for re-routing of their flights at a later date, at the passenger's convenience. Could this occur years later though? The Court highlights that the decisive factors here are: passenger's convenience and wish to be re-routed at a specific date, limited only by seat availability (para 54). There does not seem to be a temporal link required then between the date of the cancellation and when re-routing is to occur (para 55). This interpretation cannot be invalidated by airlines stating that following it may demand from them payment of unreasonable operating costs. The CJEU recalls that passenger protection may justify even substantial negative economic consequences for certain economic operators (para 59).

Both these cases provide a useful clarification of provisions that were previously less challenged but contain terms ripe for various interpretation.

Passengers acting to avoid flight delay = no compensation

In two judgments issued on 25 January, the CJEU addressed questions related to the passengers’ right to claim compensation for a long flight delay. The unusual aspect of both cases is that in neither of them passengers actually experienced the delay, having decided to forego the delayed flight. Unsurprisingly, the CJEU decided in both cases that they could not then claim compensation from Regulation 261/2004.

C-474/22 - Laudamotion 

In this case, a passenger in expectation of the delay, which would have led him to not make the business meeting he was to travel for, decided to stay home rather than go to the airport. His flight arrived at the final destination with a delay of 3 hours 22 minutes.

The CJEU emphasised that the loss of time that the compensation aims to alleviate is „not damage arising out of delay” but an inconvenience (para 27). All passengers experience it the same way, which allowed to standardise the compensatory measure. Contrary, however, to cancelled flights in case of a flight delay to be eligible for claiming compensation passengers need to present to check-in at the airport (para 30). In this case, the passenger was then not eligible for compensation as he did not present himself for check-in. However, the Court reminded that the passenger could claim further compensation pursuant to Art. 12 Regulation 261/2004 for individual damage, e.g., arising due to having missed the business meeting (paras 32-33).

C-54/23 - Laudamotion and Ryanair 

Here, the passenger avoided the flight delay of 6 hours by booking themselves on an alternative flight, which arrived at the final destination with a delay of fewer than 3 hours.

The CJEU focuses on the fact that the passenger did not experience the inconvenience of a long delay, the loss of time, and therefore is also not eligible for the compensation (para 22). The Court notes that the passenger could have experienced an inconvenience as they had to find an alternative means of transport themselves, but that is not a serious inconvenience pursuant to the Court (para 23). It should be mentioned that also in this case the passenger received some form of redress as they could claim reimbursement for the flight ticket pursuant to national law. 

Both cases then limit the application of the Regulation 261/2004 but in a way consistent with the objective of high level of passenger protection. Passengers are not left without a recourse for claiming compensation for individual damages.

CJEU in C-100/21 (Mercedes-Benz group): technical rules on motor vehicles and emissions are also aimed at consumer protection

Dear readers, 
 
this week, the CJEU has decided a case that may go unnoticed among consumer lawyers scouting the CVRIA website for new cases but has a clear connection to consumer law - namely, C-100/21 (Mercedes-Benz Group)  concerning the liability of a producer of "defeat" vehicles. 
We know, of course, the background to this case - namely, the so-called "Dieselgate", revealing how several car producers had tweaked their vehicles to cheat on emissions tests. Quite a few court cases have previously reached the CJEU, lastly based on the Consumer Sales Directive. This case is similar to its predecessors qua facts, but also different in terms of the legal basis. 
In Mercedes-Benz, in fact, the basis for the consumer's claim was to be found in German tort law (para 823(2) BGB), which provides for recourse in tort by individuals when a law aiming to protect them has been infringed (see para 29). The question that the CJEU had to ask, then, was whether two European instruments read together - namely Directive 2007/46 establishing a framework for the approval of motor vehicles (‘the Framework Directive’), and Regulation No 715/2007 regulating the approval of certain auto vehicles - had to be interpreted as aiming to protect individual buyers of auto vehicles. According to the referring court, the question was a matter of doctrinal contention under German law, with some considering such technical instruments as merely aiming to protect the environment and secure road safety, while others emphasised the function of technical standards in securing consumer autonomy and individual interests (see paras 29-30 and ff.
According to the Court, it is the case that the European rules under consideration in fact (also) aim to protect individual consumers: that this is the case, the Court argues (para 78 ff), can be evinced from the fact that the Framework Directive requires manufacturers to provide individual purchasers with a certificate declaring that the purchased vehicle complies with the requirements set out in law. Buyers of auto vehicles carrying a conformity certificate can thus expect the acquired vehicles to comply with the relevant regulations. Failure to comply is "liable, inter alia, to create uncertainty as to the possibility of registering, selling or entering into service that vehicle and, ultimately, to harm the purchaser of a vehicle equipped with an unlawful defeat device" - all of which obviously directly affect the cars' individual purchasers. 
Member States, hence, are required to make sure that individual consumers have recourse against the producer of a defeat vehicle, where it is proven in national proceedings that the vehicle indeed contained a "defeat" mechanism. The rules applicable to actions seeking to obtain compensation for the damage suffered by individual consumers, however, are not harmonised; it is up to the Member States, subject to compliance with the principles of equivalence and effectiveness, to determine the exact contours of the claims. In this context, national courts are asked to assess the facts of the case - in which context, while tasked with securing the effectiveness of consumer's right to compensation for any damages suffered, they are also allowed to consider principles such as unjustified enrichment that would allow for balancing such damages against possible benefits enjoyed thanks to using the vehicle (paras 91-93). 
Given previous cases, the outcome in this case is perhaps not too surprising; it goes, however, to show further ways in which national private law systems and EU rules gradually come into more direct conversations, also where one would not immediately expect it. Furthermore, the case may be of interest to students and teachers of comparative tort law, always looking for current examples to illustrate this specific German doctrine :). 

Can we seek compensation for a GDPR breach if it caused great upset or inner discomfort? The AG Opinion in C-300/21, Österreichische Post

According to Article 82(1) of the GDPR any person who has suffered material or non-material damage as a result of an infringement of the Regulation has the right to receive compensation from the controller or processor for the damage. It turns out that the exercise of this right in practice raises some questions, especially if the damage caused by the infringement would consist of a "great upset" or a "loss of confidence". Recently, the Advocate General Campos Sánchez-Bordona commented on this issue (see: case C-300/21 Österreichische Post). 

Facts of the case

The case concerns the processing of personal data by an Austrian postal company (Österreichische Post AG). The company had been collecting personal data on the Austrian public's affinities for political parties since 2017. Information on political preferences was inferred based on various socio-demographic characteristics. Such processing did not please "UI" (that's how the data subject is called by the AG in the opinion). More specifically, he did not like the way the company classified him as a person sympathizing with one of Austria's political parties. UI therefore entered into a dispute with the company, pointing out, for instance, that he had not consented to the processing of his personal data. As we read in the opinion, UI „was upset by the storage of his party affinity data and angered and offended by the affinity specifically attributed to him by Österreichische Post” (para. 10). What is more, he claimed that such a „political affinity attributed to him is insulting and shameful, as well as extremely damaging to his reputation” (para. 11). Therefore he demended compensation of EUR 1 000 in respect of non-material damage (inner discomfort).

Both the court of first instance and the appellate court rejected his claim. However, following an appeal to the Oberster Gerichtshof (Supreme Court, Austria), the court raised several doubts, referring the following questions to the Court of Justice for a preliminary ruling:

"1. Does the award of compensation under Article 82 of the GDPR also require, in addition to infringement of provisions of the GDPR, that an applicant must have suffered harm, or is the infringement of provisions of the GDPR in itself sufficient for the award of compensation?

2. Does the assessment of the compensation depend on further EU-law requirements in addition to the principles of effectiveness and equivalence?

3. Is it compatible with EU law to take the view that the award of compensation for non-material damage presupposes the existence of a consequence of the infringement of at least some weight that goes beyond the upset caused by that infringement?"

Opinion of the AG

The AG presented an interesting analysis of Article 82 of the GDPR, taking into account different types of interpretation (literal, historical, contextual and purposive). There are several important statements that deserve attention: 

1. Assuming that under Article 82 of the GDPR a data subject could be awarded compensation for a breach of the Regulation, despite the absence of any damage, would be inconsistent with the fundamental purpose of civil liability. This purpose is to compensate for the damage suffered by the data subject. If the damage could not be identified, the compensation then awarded would not fulfil the aforementioned function, but would be more like a punishment and a sanction for the infringer (paras 29-30). It is true that punitive damages may exist in both EU and national law, but the GDPR does not contain this type of reference (paras 39, 44, 49-50).

2. The AG's position is that a mere breach of the GDPR does not give rise to a presumption of automatic harm to the data subject (paras 56-59). As can be inferred from the Opinion, this is the presumption made by the parties to the proceedings, indicating that a breach leads to a loss of control over the data and thus causes harm to the data subject. However, the AG considers that not every loss of control over data necessarily leads to harm (para. 62) and, furthermore, that giving data subjects as much control over data as possible may not necessarily be derived from the GDPR provisions (para. 74). He states: „where a data subject does not consent to processing and processing is carried out without another legitimate legal basis, that is not a ground for the data subject to receive financial compensation on account of the loss of control over his or her data, as though that loss of control itself amounted to damage that is eligible for compensation” (para. 77).

3. The compensation for non-material damage regulated by Article 82 of the GDPR does not cover the mere upset that a person may feel due to a breach of Regulation 2016/679. It is up to the national courts to determine when, due to its characteristics, a subjective feeling of displeasure can be considered as a non-material damage in a given case (conclusion - para. 117).

Given the facts of the case, the AG's answers to the preliminary questions do not seem surprising. Nonetheless, some views are arguable, such as that „it is not straightforward to conclude from the GDPR that its objective is to grant data subjects control over their personal data as a right in itself” (para. 74). 

In my view, one of the primary objectives of the GDPR is precisely to give individuals control over their data, or even to 'restore' that control. This conclusion can also be drawn based on the provisions of other data flow regulations in the EU, such as the Data Governance Act* or the Data Act proposal**. It is clear that the opinion was given based on the GDPR provisions, but I guess they should not be interpreted without regard to the broader regulatory context. That said, we eagerly await the Court's final verdict.

* For instance, in recital 5 of the DGA it is stated that it "is necessary to increase trust in data sharing by establishing appropriate mechanisms for control by data subjects". A similar idea is expressed in recital 30 in the context of data intermediation services: "data intermediation services providers seek to enhance the agency of data subjects, and in particular individuals’ control over data relating to them". Maybe it is not directly indicated that the purpose of the DGA is to "grant control over data", but still this can be deduced from both the content and the particular objectives of the legal instruments adopted in the DGA. 

** See, for example, recital 78 of the proposal: "To foster further trust in the data, it is important that safeguards in relation to Union citizens, the public sector and businesses are implemented to the extent possible to ensure control over their data". Again, it is not stated expressly, but without ensuring control over data, the other objectives of the regulation will not be achieved. From this perspective, granting control over data may appear as one of the purposes. 

Different airlines, but connecting flights - CJEU in flightright (C-436/21)

A week ago, on October 6, the CJEU issued a judgment in the case flightright (C-436/21) on the concept of 'connecting flights' in Regulation 261/2004 on air passenger rights. This concept has been used e.g. in Article 2(h) of the Regulation, where the 'final destination' has been defined as 'the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight (...)'. 

The passenger in this case travelled from Germany to the US via Switzerland. Their journey required 3 flights, which were purchased together from a travel agency. American Airlines was mentioned on the single electronic ticket that the passenger received as the operating air carrier, even though the first flight was performed by Swiss International Air Lines. The whole journey had a single reservation number and the passenger received an invoice showing a single price for the return flights. In this case the last of the connecting flights, taking place within the US, was delayed by more than 4 hours. The passenger assigned their claim for compensation of 600 Euro from American Airlines to flightright.

The passenger would fall within the scope of Regulation 261/2004 only if their journey was deemed to have started in the territory of the EU (Germany). The issue was that the first flight was carried out by Swiss International Air Lines between Germany and Switzerland. American Airlines operated the second and third flight, but the second flight departed from outside the EU - from Switzerland. Swiss International Air Lines and American Airlines have no specific legal relationship and their flights have been combined for the purposes of this passenger by the travel agency. Should American Airlines then have to pay compensation under Regulation 261/2004 if their records might not have reflected that the passenger would have started their journey within the EU and therefore could be covered by Regulation 261/2004?

The CJEU says yes, referring to the previous judgment on defining 'connecting flights' as flights booked as a single unit (Wegener - see our comment Bad news for airlines...) (para 20). As the passenger's ticket seems to have confirmed that their reservation was for the entire journey, it would qualify as a single unit (para 26). The CJEU highlights further that Regulation 261/2004 does not require connecting flights to be performed by operating air carriers who are in a particular legal relationship (para 28). American Airlines seems, therefore, liable in this case for paying out the compensation to passengers. They could, however, try to seek recourse on the tour operator who has booked the journey, if they failed to fulfil their obligations (para 30).

Consequences of code-sharing agreements - CJEU in United Airlines (C-561/20)

On April 7th the CJEU issued a judgment in United Airlines (C-561/20), addressing rights of air passengers in a situation of a delayed connecting flight. We commented on the opinion in this case last December ((Not)Dashing through the snow...). AG Athanasios Rantos argued for the applicability of Regulation 261/2004 to a delay of a second connecting flight, which was operated by a non-EU air carrier (United Airlines) between two US airports, considering that passengers made their reservation with an EU air carrier (Lufthansa) and the reservation encompassed connecting flights leading passengers from Brussels (Belgium) to the US. Previous case law of the CJEU already emphasised the need to treat flights that were included in one reservation as one unit (para 29). The CJEU agrees with this interpretation, as well as with the fact that since Regulation 261/2004 places liability for delayed flights on operating air carriers, passengers have a claim in this case against a non-EU air carrier - United Airlines (paras 33 and 41-42). They operated all of the flights, under a code-sharing agreement with Lufthansa, which means they acted on behalf of a party who had a contractual obligation towards passengers (paras 39-40). 

Place of performance for multi-leg journeys - CJEU in LOT Polish Airlines (C-20/21)

Last week, on 3 February 2022, CJEU issued another judgment interpreting Article 7 Regulation 261/2004 on air passenger rights this time in combination with the interpretation of Article 7 Regulation 1215/2012 (Recast Brussels Regulation) in the case LOT Polish Airlines (C-20/21). The dispute concerned the jurisdiction of a national court over a claim for compensation of a delayed flight. 

The flight in case consisted of two legs of a journey with Lufthansa AG - Warsaw (Poland)-Frankfurt am Main (Germany)-Malé (Maldives). The first flight was operated by LOT Polish Airlines and its delay led the passengers to miss the second flight and arrive in Malé with more than 4 hours of a delay. The passengers claimed compensation for a delayed flight with a local court in Frankfurt am Main (Amtsgericht Frankfurt), which then disputed its jurisdiction as neither a place of departure or arrival listed in the contract of carriage (para 10). The referred question asked whether Frankfurt could be perceived as a place of performance pursuant to Article 7(1)(b) Regulation 1215/2012, which allows to determine domicile in contractual disputes regarding provision of services with reference to the place in which services were provided or should have been provided.

Previously, the CJEU has already confirmed the applicability of the jurisdiction rules governing contractual disputes to air passengers, regardless of the fact that their claims may be directed at operating air carriers with whom they did not conclude a contract (flightright and Others). The CJEU now reiterates the rules on determining jurisdiction for disputes where there are several places in which services were provided to looking for a place with the closest connecting factor between the contract and the court having jurisdiction (para 22). This tends to be the place where the 'main provision of services is to be carried out' (see Rehder). This should not be limited to the place of first departure and last arrival for a journey that consists of various legs (para 23). However, in the current case as the dispute arises from the delay of the first flight and the claim is raised against the air carrier operating that first flight, it seems that the place of first departure remains closely linked to the dispute and hence courts of that place should have jurisdiction (para 25). Consequently, the CJEU considers the courts of the place of arrival of the first leg of the journey not to have jurisdiction (para 27). The claim should be brought to courts of Warsaw rather than Frankfurt then, which is also considered to guarantee predictability and legal certainty for both parties (para 26).

(Not)Dashing through the snow - AG Athanasios Rantos on delayed flights in United Airlines (C-561/20)

On December 9, AG Athanasios Rantos issued an opinion in the case United Airlines (C-561/20), which concerned interpretation of Articles 5 and 7 of Regulation 261/2004 on air passenger rights. This is another case concerning a delayed connecting flight, through which airlines try to limit their obligation to pay out compensation, pursuant to the rules of the Regulation, to passengers affected by such a delay.

In this particular case, passengers were travelling from Brussels (Belgium) to San José International airport (the US) via Newark International (the US). One reservation was made for these flights with the Community air carrier, German Lufthansa. However, both flights were operated by United Airlines, a non-Community carrier. Due to a technical defect of a plane, the second connecting flight was delayed.

United Airlines refused to pay compensation, invoking the fact that the delay occurred during the second leg of the air travel, during a flight from an airport in the US to another airport in the US, and that they were not a Community carrier.  

Unsurprisingly, following the previous case law of the CJEU (e.g. Wegener, C-537/17, see more here, and Ceske aerolinie, C-502-18, see more here), AG Athanasios Rantos finds that passengers are due compensation, as when the delay occurs in connected flights is irrelevant, as long as one reservation has been made for the flights, which if treated as one unit fall within the scope of application of the Regulation. The slight difference in this case is that the passengers want to claim compensation from a non-Community air carrier, however, AG Athanasios Rantos does not consider this an issue, following the non-contested fact that United Airlines was an operating air carrier on these flights (para 52).

Which court has jurisdiction over an online defamation case? AG Hogan's Opinion in Case C-251/20

A person or a company that has been defamed on the Internet may demand not only the removal or rectification of discrediting comments, but also compensation for any material or non-material damage suffered. The question is which court should be addressed, since comments posted on the Internet may be accessible in various Member States. This query is the focus of the dispute in case C-251/20 Gtflix Tv vs. DR pending before the Court of Justice. Last Thursday (16.09.2021) Advocate General Gerard Hogan issued his opinion. 

According to the general rule of jurisdiction, arising from Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, persons domiciled in a Member State may, regardless of their nationality, be sued in the courts of that Member State (Article 4(1) of Regulation No 1215/2012). Various exceptions to this rule are laid down, establishing different criteria for connecting a dispute to the courts of other Member States. For example, Article 7(2) of the Regulation stipulates that a person may also be sued in another Member State - in matters relating to tort, delict or quasi-delict, before the courts for the place where the harmful event occurred or may occur. This exception is justified by the need to ensure the sound administration of justice, legal certainty and to "avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen" (see recital 16 of the Regulation). In such situations, the court of the place where the event giving rise to the damage has occurred or is likely to occur is more competent in the sense that it is closer and better placed to assess the extent of the damage and its consequences. Unfortunately, determining the place of the damage and the competent court is sometimes dubious in cases of online damage caused by posting false or infamous statements, which can be accessed in different Member States. The implications of such statements may be diverse in each jurisdiction. For example, negative comments about a person or a company may considerably affect their good name or professional standing in a certain state because they are well-known or economically active there. In such a case, the extent of the damage may be significant. Conversely, in another state, where the person or company is not known, access to defamatory comments may not have negative consequences. 

The dispute in the Gtflix case concerns precisely whether the Czech company Gtflix (as it was nicely expressed in the Opinion - "which produces and distributes what is sometimes euphemistically described as as adult content television programmes") can bring a claim against a Hungarian citizen (also a producer and distributor of pornographic films) before a French court? Gtflix accuses the Hungarian producer of posting disparaging remarks on websites and forums, and seeks, inter alia, an order requiring DR to cease all acts of disparagement against Gtflix and to pay compensation for both economic and non-material damage. However, the French courts have raised doubts as to whether they have jurisdiction in this case. In other words: may Gtflix, while seeking both rectification of the data and removal of the content and compensation for material and non-material damage, bring such proceedings before the courts of each Member State in the territory of which the content was accessible on the Internet, or must it bring such proceedings before the court having jurisdiction to order the rectification of the data and removal of the defamatory comments? 

The question referred by the French court refers to some divergence in the case-law of the Court of Justice arising from the judgments in cases eDate Advertising and Others (C‑509/09 and C‑161/10) and  Bolagsupplysningen and Ilsjan (C-194/16). In the former, the Court held that a claimant as a result of online defamation may bring an action before the court having jurisdiction over the defendant's domicile, the place where the harmful event occurred or the place where the claimant's centre of interests is located (understood, for example, as the place of habitual residence or professional activity). In such cases, the court may rule on the entirety of the damage suffered. Furthermore, according to the Court, the claimant may also bring an action before other courts of the Member States in which the publication in question is or has been accessible, but in that case the court may rule only in respect of the damage or injury caused in the territory of the Member State concerned. This construction is sometimes also referred to as the 'mosaic approach', as it introduces a principle of jurisdiction sharing. 

In case Bolagsupplysningen and Ilsjan the Court stated, however, that a claim for rectification or deletion of online comments cannot be brought before the courts of each Member State (despite the ubiquity and accessibility of information on the Internet in various places), but only before the same courts as those which had been granted jurisdiction to hear the merits of the case for full compensation for damage. With this in mind, Advocate's opinion focused on a detailed analysis of the mosaic approach, trying to find arguments both for the Court's retention and possible abandonment thereof. Ultimately, AG concluded that he is not convinced by either solution (see point 79 of the Opinion). He therefore suggested that a good practice would be to complement the mosaic approach with an additional "focalisation criterion", i.e. a criterion verifying that the publication in question (such as discrediting content) is targeted specifically at the public in the territory of a given Member State. The application of this criterion would make it possible in practice to reduce the number of courts having jurisdiction to hear the dispute. 

In conclusion, in the AG's view a claimant who seeks both the rectification/deletion of certain content and compensation for the non-material and economic damage resulting from the dissemination of disparaging statements on the Internet, may bring an action or claim before the courts of each Member State in the territory of which content published online is or was accessible, for compensation only for the damage caused in the territory of that Member State. Nevertheless, the claimant should be able to demonstrate that it has "an appreciable number of consumers in that jurisdiction who are likely to have access to and have understood the publication in question". 

Now we are awaiting the judgment of the Court. We will keep you informed, so stay tuned! 

Waves of change - CJEU in Irish Ferries (C-570/19)

Usually, we focus on and discuss air passengers' rights on this blog, as Regulation No 261/2004 is one of the instruments of consumer protection that seems to raise a lot of questions. Last week, however, the CJEU issued a judgment in the Irish Ferries case (C-570/19) pertaining to the rights of passengers of the sea transport. This time it was then Regulation No 1177/2010 concerning the rights of passengers when travelling by sea and inland waterway that required clarifications. We have elaborated on the facts of the case in our previous blog post addressing AG Szpunar's opinion, see here: The Tide Is High.... 

Just like the AG's opinion, the judgment is lengthy. The detailed approach can very well be explained by the novelty of interpreting provisions of this Regulation No 1177/2010. Generally, the CJEU confirms AG Szpunar's findings:

1. Regulation No 1177/2010 applies when a carrier cancels a passenger service with a several weeks' notice prior to the originally scheduled departure time due to the vessel, which was supposed to provide that service, not having been delivered in time and which could not be replaced. This means that the CJEU considers the notion of passengers 'travelling on' the service to be a broad one, encompassing also passengers who made a reservation or purchased a ticket for the service (para 51).

2. Article 18 obliges carriers to offer a re-routing option to passengers of the cancelled service. Re-routing could take a form of offering a maritime service on a different route combined with the use of other transportation modes (rail or road), thus carriers retain flexibility as to how they would want to organise re-routing (para 64). Carriers are to bear any additional costs, which passengers were subject to when re-routed to their final destination, e.g. costs of fuel or road tolls to reach a different embarkation/disembarkation port or costs of using a landbridge (paras 66-67). Passengers need to be able to demonstrate that they incurred such costs.

3. Articles 18 and 19 may be applied together. This means that re-routed passengers have a right to compensation if their re-routed journey leads to a delay in reaching the final destination, which would cause a serious inconvenience (para 89). If passengers of a cancelled service decide to choose reimbursement rather than re-routing, they are not entitled to claim compensation for a delay (para 88).

4. Compensation mentioned in Article 19 is calculated based on the 'ticket price'. This notion includes costs relating to the additional optional services chosen by the passenger, e.g. booking of a cabin or a kennel, or access to premium lounges (para 95). This means that the amount of compensation owed to passengers may differ amongst passengers of the same cancelled service.

5. Late delivery of the vessel does not qualify as 'extraordinary circumstances', which would release the carrier from the obligation to pay compensation. The CJEU borrows the interpretation of this notion from the air passenger rights' area, which means that only events not inherent in the normal exercise of the activity of the carrier and beyond their actual control would qualify as extraordinary circumstances (para 107, 112).

6. The complaint handling procedure of Article 24 is not applicable to compensation claims on the basis of Article 19, as that complaint handling procedure provides carriers with certain discretion as to what actions to take upon receiving a complaint, which lacks when the compensation is triggered (para 118 and 121).

Re-routing: good or bad option? - CJEU in Austrian Airlines (C-826/19)

Most of us are still pretty much grounded and flights are few and far between, but as the travel sector is starting to slowly pick up passengers again, it may be worth it to look at the newest judgment on Regulation 261/2004. On 22 April the CJEU issued a judgment in the case Austrian Airlines (C-826/19). In this Austrian case the passenger claimed compensation due to the re-routing of their flight from Berlin Tegel airport to Berlin Schönefeld airport by the air carrier. This was caused by the poor weather conditions delaying the arrival of the aircraft in Vienna, with a later take off towards Berlin than scheduled, which would lead to the plane arriving at Tegel after the airport was closed for the night already. Generally, we would expect most passengers appreciating re-routing to a nearby airport, as this should avoid flight's cancellation or even really long delays. However, issues may arise, as we could see on the example of this case.

 

This case is unusual for four reasons set out below.

 

1) The delay in arrival at the Berlin airport (although the wrong one) was only 58 minutes from the scheduled arrival time.

 

The referring national court had doubts whether the flight Vienna-Berlin Tegel should be considered to be delayed or cancelled. If it was to be considered as delayed: Should the delay be calculated at the moment of landing at the alternate airport or rather when the passenger reaches the originally scheduled destination airport, or another agreed, pursuant to Article 8(3) Reg 261/2004 place?

The CJEU looks back to the judgment in the case Sousa Rodriguez (we commented on it back in 2011: More Compensation to Air Passengers...) and reminds that it is insufficient for a flight to take off according to the scheduled route, for it to be considered to be performed and not cancelled. No, the flight also needs to complete that scheduled route for this determination to be made (para 35). Consequently, if a plane is re-routed to a different airport, it cannot be considered to be performed according to the original schedule, and therefore, the original flight should generally be treated as cancelled (para 36). However, if that alternate airport is serving the same city or region, then such a determination would be contrary to the purposes of Regulation 261/2004, as it aims not only to protect passengers but also to minimise the amount of cancelled flights (paras 37-38). Therefore, air carriers should not be discouraged from re-arranging the passengers' flights to a nearby airport, if they then also cover costs of transportation to the original destination airport, pursuant Article 8(3) Reg 261/2004 (para 40). Passengers of such flights may then not claim compensation for their flights having been cancelled. That being said, if the delay in reaching the original destination airport is longer than 3 hours, then the passenger should be entitled to compensation. The CJEU then confirms that the delay should be calculated not at the moment the passengers reach the alternate airport, but rather, when they arrive either at the airport of their original destination or at another agreed with the air carrier place - when they used the alternate means of transportation to do so (para 48).

 

2) Poor weather conditions are usually perceived as an extraordinary circumstance releasing the air carrier from their compensation obligations pursuant to Regulation 261/2004. 

 

As the poor weather conditions took place during the preceding flights of the aircraft scheduled to travel from Vienna-Berlin Tegel, the question was whether the air carrier could invoke them as an extraordinary circumstance for subsequently delayed flights of the same aircraft.

This question was previously answered by the CJEU in the TAP case (see our comment: Deja Vu: Creative interpretation...), where the Court noted that provisions of Regulation 261/2004 should allow to account for an event to constitute an extraordinary circumstance not only for the flight directly affected by it, but also for the subsequent flights, for which a given aircraft was scheduled (paras 53-54). However, it is for the national court to determine whether there was a direct causal link between the extraordinary circumstance impacting one flight, and the subsequent delay or cancellation of another flight. The schedule of the aircraft should be taken into consideration in this assessment (para 56).

 

3) The passenger claimed that the air carrier was obligated to offer them free means of transportation between Schönefeld and Tegel airports, although the passenger lived only 24km away form Schönefeld airport. 

 

Here the doubts were whether re-routing took place as described in Article 8(3) Regulation 261/2004, which provision is applicable when a city is served by several airports. Doubts arose whether this provision is applicable as technically speaking Berlin Schönefeld airport is not located within the city borders of Berlin (para 19). CJEU draws attention to the fact that the Regulation does not define the notions used in this provision, thus they should be interpreted in a harmonious manner on the EU level. Therefore, it is irrelevant that national administrative rules might have placed the two airports in different regions. As long as the location of the airports is in the close vicinity to the same city, they are both serving the same city (paras 23-24). Such an interpretation allows the fulfilment of the objectives of the Regulation (assuring a high level of protection of passengers), as well as protects the interests of air carriers, as the determination of when an airport is serving a particular city or region does not depend on national administrative regulations (paras 27-29).

 

Another question asked whether the passenger should have been the one to request transportation to the original destination airport or another place, or whether the air carrier should have been the one to offer such an option.

Article 8(3) of Regulation 261/2004 obliges air carriers to cover the costs of the transport of passengers to the original destination airport or to another agreed place. This provision does not place an express obligation on the air carriers to actively, of their own initiative offer transportation to such locations, however, the Court interprets it broadly and reads such an obligation from this provision, following the protective aims of the Regulation (paras 60-63). Such an interpretation is supposed to balance interests of both passengers and air carriers. Passengers will be spared inconvenience of having to arrange for alternate means of transportation to the original destination airport and the air carriers will be able to avoid having to pay compensation by ensuring that passengers reach that original destination airport with the delay shorter than 3 hours (para 65).

4) The passenger claimed compensation from Regulation 261/2004 as a result of the air carrier breaching its obligations of care and assistance from Article 8(3) Regulation.

 

The CJEU looks back again at the Sousa Rodriguez case, in which the Court confirmed the right of passengers of cancelled and re-routed flights to claim damages (para 69). However, such damages should compensate specific costs that the passenger had to cover as a result of the air carrier not providing them with necessary care and assistance (para 70). These costs had to have been appropriate, reasonable and necessary. Consequently, a passenger may not claim compensation from Regulation 261/2004 to cover such damages, as its amount is determined in an objective way, unrelated to specific damages of each passenger (paras 71-72).

Somber CJEU case on package travel - Kuoni Travel (C-578/19)

(trigger warning sexual violence)

 

Yesterday, the CJEU issued a judgment in the Kuoni Travel case (C-578/19), in which the Supreme Court of the UK asked for guidance on the interpretation of certain provisions of the old Package Travel Directive (Directive 90/314). It might be (one of) the last UK consumer law case decided at the CJEU. The travellers in this case bought a package travel to Sri Lanka from Kuoni Travel. The package included return flights, and 15 nights all-inclusive accommodation in 2010. Unfortunately, the traveller was assaulted and raped by an electrician and hotel employee, wearing a staff uniform and on duty at the time. The question that arose was whether Kuoni was liable for damages to the traveller, that is whether these arose as a result of the improper performance of the package travel contract by the supplier of a service and if yes, whether exception from Article 5(2) PTD could apply - that the travel organiser is not responsible because even with all due care they could not foresee or forestall the event that had occurred.

Pursuant to the contract, Kuoni limited its responsibility as follows:

‘due to fault on [that company’s] part, or that of [its] agents or suppliers, any part of [the] holiday arrangements booked before … departure from the UK is not as described in the brochure, or not of a reasonable standard, or if [the other contracting party] or any member of [his or her] party is killed or injured as a result of an activity forming part of those holiday arrangements’ and, secondly, that Kuoni does not ‘accept responsibility if and to the extent that any failure of [the] holiday arrangements, or death or injury is not caused by any fault [on the part of the company], or [that of its] agents or suppliers; is caused by [the other contracting party] … or is due to unforeseen circumstances which, even with all due care, [the company] or [its] agents or suppliers could not have anticipated or avoided’. 

High Court of Justice and Court of Appeal both dismissed consumers' claim on the basis that Kuoni accepted responsibility for its agents and employees in the performance of 'holiday arrangements', which should not encompass actions by a member of the hotel's maintenance staf. This would according to the court also fall within the scope of the PTD, as it did not aim to regulate the conduct by employees or agents of the travel organiser, where that conduct was not part 'of the role in which he was employed'. The Supreme Court, however, highlighted the fact that the hotel staff's member was guiding the traveller to the reception which could be perceived as a service falling within the scope of the 'holiday arrangements' (para 21, 51), and therefore an assault that occurred could be seen as an improper performance of the contract.

The CJEU first reminds the fact that Article 5(3) PTD prohibits travel organisers and/or retailers who are responsible towards consumers for the performance of the package travel contract to exclude their liability by means of a contractual clause (para 34). Article 5(2) PTD provides an exhaustive set of such exclusions. The liability extends to the proper performance of obligations under the contract by suppliers of services, who are however not defined in the directive (para 35). 

Suppliers of services

The linguistic and purposeful interpretation of this notion leads to the determination that a supplier of services is a natural or legal person who provides services for remuneration (paras 38-40). An employee of a supplier (here maintenance staff member in a hotel) could not however be a supplier of a service, both due to not having concluded a contract with the travel organiser and having an employment contract (rather than of provision of services, per definition) (paras 41-42). However, as suppliers of services may use their employees to perform the obligations from the package travel contract, and the travel organiser has the ultimate responsibility for the proper performance thereof, their liability should cover acts committed by employees of the supplier of services (paras 45-48).

Exemption from Article 5(2) PTD 

The CJEU interprets the exemption as applying to 

'events which cannot be foreseen, irrespective of whether they are usual, or from events which cannot be forestalled, irrespective of whether they are foreseeable or usual' (para 59)

This exemption is a separate ground to force majeure, as well (para 58). What is similar, however, is that the event that occurred must have been outside the sphere of control of the travel organiser or the service supplier (para 60) as Article 5(2) PTD generally requires the absence of fault. Clearly, this does not apply here as acts of an employee of a supplier of service fall within that sphere of control (para 61).

 

Whilst the judgment should lead to damages being awarded to travellers, it is really necessary to note the time frames here. The event occurred in 2010. The case went through all instances in the UK courts, whilst the reference to the CJEU could have been made sooner. The CJEU also took its sweet time in replying, as the case was brought in in July 2019.

Regarding the judgment itself, it may have harsh consequences for travel organisers, as it does not leave much space for limiting their liability. Similarly to the interpretation of 'extraordinary circumstances' under the Regulation 261/2004 on air passenger rights, what is crucial is what could be seen as remaining within the sphere of control of travel organisers and the inclination will be to see that sphere as quite broad.

Compensating passengers in national currencies - CJEU in Delfly (C-356/19)

The CJEU is back after the summer holidays and we are as well. One of the judgments issued today was in the Polish case Delfly (C-356/19), in which a Polish court asked for clarification of the provisions on the payment of compensation for cancelled/delayed flights pursuant to Regulation No 261/2004.

The consumer in this case had a flight delayed for more than 3 hours from a third country to Poland, which entitled her to 400 Euro compensation pursuant to Article 7(1) Regulation No 261/2004. The question raised in this case was whether the consumer could claim the amount of this compensation in another currency than Euro, namely in Polish zloty (PLN). Polish law - Article 358 Civil Code - specifies that for obligations denominated in foreign currency without an agreed conversion to PLN, the creditor may demand only payment in that foreign currency and it is up to the debtor to choose/agree to a payment in PLN instead. Polish procedural law prevents the consumer further from adjusting the claim that has already been made in PLN to the one expressed in EUR. Unsurprisingly, the air carrier used these legal provisions to reject the passengers' claim.

The CJEU is asked whether Polish law complies here with the provisions of Regulation No 261/2004 and the answer also does not come as a revelation: national law should not stand in the way of passengers claiming their compensation pursuant to Regulation No 261/2004 in national currencies of their place of residence, not just in Euro.

It is worth noting that Regulation No 261/2004 determines the compensation amounts in Article 7(1) Regulation 261/2004 in Euros, without further addressing a possibility of passengers making claims in other currencies, methods of conversion etc (para 20). This should not lead to a contrario reasoning, however, that without an express mention of claims calculated in other currencies such claims are prohibited (para 21). As the CJEU has many times observed Regulation intends to award a strong protection framework to air passengers and their rights should be interpreted broadly (paras 22-24). The CJEU is of the opinion that considering the standardised character of the compensation, and that it is supposed to apply to passengers irrespective of their nationality and place of residence, if it were limited to payment in Euro it could restrict the way this right was exercised (para 26) and it could lead to different treatment of passengers in comparable situations (para 30). The principle of equal treatment could be infringed if compensation could only be paid out in Euro, as only for some passengers that would be the currency of their place of residence. It is for the national law to determine how the conversion from Euro to national currency should take place (para 33).

Double compensation available in case of a delayed re-routing flight: case C‑832/18 Finnair

Earlier this week, the Court of Justice delivered a judgment in case C-832/18 Finnair. The case proceeded without written opinion from the AG and concerned the interpertation  of Regulation (EC) No 261/2004 on passenger rights in the event of denied boarding and of cancellation or long delay of flights. The judgment adds another major element to the pro-consumer case law of the Court of Justice.

Facts of the case

The dispute revolved around a Finnair flight from Helsinki (Finland) to Singapore, which encourtered multiple problems. Not only was the original flight cancelled due to a technical defect, but also the alternative connection, scheduled for the next day, was delayed by almost 19 hours. The applicants brought an action in a Finnish court seeking to have the airline ordered to pay them the sum of EUR 1200 each: covering EUR 600 on account of the cancellation of the original Helsinki-Singapore flight plus additional EUR 600 on account of the delay of the subsequent Helsinki-Chongqing-Singapore re-routing flight. While Finnair agreed to award compensation of EUR 600 in respect of the cancellation of original flight, it refused to grant the second compensation claim. According to Finnair, Regulation No 261/2004 did not impose an obligation of this kind and, even if it did, the delay of re-routing flight had been caused by extraordinary circumstances (defect of an ‘on condition’ part). Interestingly, unlike the Finnish court of first instance, the Court of Justice did not find the arguments of Finnair convicing and opted for a pro-consumer reading of applicable EU law.

Judgment of the Court

Double compensation

The Court began its analysis by recalling that, pursuant to Article 5(1)(a) of Regulation No 261/2004, read in conjunction with Article 8(1), in the event of cancellation of a flight, the passengers concerned should be offered the choice between three different forms of assistance, namely either reimbursement of the ticket and, where appropriate, a return flight to the first point of departure, or re-routing to their final destination at the earliest opportunity, or such re-routing at a later date at their convenience, subject to availability of seats. Passengers in the case at hand opted for the latter form of assistance, in the course of which, however, the encountered further difficulties.

Focusing on the scope of Regulation No 261/2004, the Court found that nothing in its Article 3 suggests that the regulation should not apply to air passengers who have been transferred by the air carrier, following the cancellation of a booked flight, on a re-routing flight to their final destination. On the contrary, Article 3(2)(b) explicitly referrs to passengers who have been transferred by an air carrier from the flight for which they held a reservation to another flight, irrespective of the reason. 

Furthermore, as noted by the Court in para. 27, Regulation No 261/2004 does not contain any provision intended to limit the rights of passengers who find themselves in a situation of re-routing. Broad reading of the scope of passenger rights was further supported by the purpose of that regulation, which is to address the serious trouble and inconvenience caused by denied boarding, cancellation or long delay of flights (in the case at hand experienced twice), as well as the effectiveness of an obligation to provide assistance in the form of re-routing under Article 8(1). Consequently, a possibility of claiming double compensation in analysed conditions has been accepted.

Extraordinary circumstances

Also in the second part of the judgment the Court did not clearly side the airline, even if its findings remain at a high level of generality. The Court appears to suggest that key elements of the notion of ‘extraordinary circumstances’ have already been explained in its prior case law and it is now the task of national courts to apply them to cases before them. The Court thus began by recalling that according to Article 5(3) of Regulation No 261/2004, read in the light of recitals 14 and 15, by way of derogation from Article 5(1), an air carrier is to be released from its obligation to pay passengers compensation under Article 7, if the carrier can prove that the cancellation or delay of three hours or more is caused by ‘extraordinary circumstances’ which could not have been avoided even if all reasonable measures had been taken or, where such circumstances do arise, that it adopted measures appropriate to the situation, deploying all its resources in terms of staff or equipment and the financial means at its disposal, in order to prevent that situation from resulting in the cancellation or long delay. In doing so, the Court referred to its previous case law, on which we reported in our earlier posts (see eg Runaway closure..., Loose screws...). The Court further recalled that events may be classified as ‘extraordinary circumstances’ if, by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier’s actual control, both conditions being cumulative (para. 38). The notion, therefore, does not include technical shortcomings inherent in aircraft maintenance, considering that breakdowns of this kind, even premature, are, in principle, intrinsically linked to the operating system of the aircraft.

In the case at hand Finnair contended that technical defect it was faced with should nonetheless be qualified as an extrordinary circumstance, considering that the affected rudder steering servo was a so-called ‘on condition’ part, which is only replaced by a new part when it becomes defective. The airline appears to have stocked up on the spare part, but a delay - related to repair itself - was nonetheless unavoidable. The Court did not expressly endorse such an interpretation, however. Rather, according to the Court, the failure of an ‘on condition’ part, which the air carrier has prepared to replace by permanently stocking a spare part, constitutes an event which, by its nature or origin, is inherent in the normal exercise of the activity of the air carrier concerned and is not outside its actual control, unless such a failure is not intrinsically linked to the operating system of the aircraft, which it is for the referring court to determine.

Cancellation of connecting flights: whom to sue and where? Case C-606/19 flightright

On 13 February the Court of Justice delivered an order in case C-606/19 flightright concerning jurisdiction over the claim for compensation brought against an air carrier in charge of the final leg of the journey divided into several legs, confirmed in a single booking.

The case involved two passengers who booked a journey from Hamburg (Germany) to San Sebastian (Spain) via London and Madrid, comprising of connecting flights operated by different carriers. The problem faced by the passengers was cancellation of the third flight of the journey, operated by Iberia. The question to be addressed was whether a claim against Iberia could be brought before the court in Hamburg. Pursuant to Article 7(1)(a) of Regulation No 1215/2012 (Brussels I bis) in matters relating to a contract, a person domiciled in a Member State may be sued in another Member State in the courts for the place of performance of the obligation in question. The subsequent provision explains that in the case of the provision of services the place of performance of the obligation in question is generally the place in a Member State where, under the contract, the services were provided or should have been provided.

It was already clear from the previous case law that both the place of departure and that of arrival must be considered as the principal places of the provision of services under a contract for carriage by air, which in turn gives the person bringing a claim for compensation on the basis of Regulation No 261/2004 a choice of jurisdiction. This is the case for both direct flights and, mutatis mutandis, situations in which the journey with connecting flights consisting of a confirmed single booking for the entire journey comprises two legs. In the latter case, the passenger can also choose to bring the claim before the court or tribunal which has territorial jurisdiction over the place of departure of the first leg or one having jurisdiction over the place of arrival of the second leg.

The present case dealt with a similar legal matter yet with relation to a multi-leg flight, operated by different carriers. According to the Court none of this affected the procedural position of the passenger experiencing a cancellation or delay. First of all, the Court stressed that a contract for carriage by air consists of a confirmed single booking for a three-leg journey establishes the obligation for an air carrier to carry a passenger from a point A to a point D. The place of performance, within the meaning Article 7(1) of Regulation No 1215/2012, can therefore be the place of departure of the first leg of the journey (point A).

What is more, the rule of special jurisdiction for matters relating to a contract set out in that provision does not require the conclusion of a contract between two persons, but the existence of a legal obligation freely consented to by one person in respect of another on which the claimant’s action is based.  This is the case for an air carrier performing obligations under Passenger Rights Regulation No 261/2004 on behalf of another carrier having a contract with a passenger, in line with Article 3(5) of that regulation. Consequently, even though there were no complications on the first leg of the trip and the Hamburg-London flight was not operated by Iberia, the claim against the carrier could be brought in the Hamburg court.