Introduction
Turkish "SHY-passenger" regulation
Applicability before German courts
Comment
The EU Flight Compensation Regulation(1) provides that airlines must give compensation and assistance to passengers where they are denied boarding or their flight is cancelled or delayed. However, the applicability of this regulation is limited: it applies only to flights departing from EU member states and flights operated by EU air carriers.(2) Flights from Turkey to the European Union by Turkish air carriers are not subject to the EU Flight Compensation Regulation.
However, Turkish air carriers carry out a significant number of return flights from Turkey to Germany and other EU countries. Therefore, the question arises as to whether claims against such air carriers can also be enforced in the German courts.
Turkish "SHY-passenger" regulation
Pursuant to ongoing negotiations between Turkey and the European Union for full membership, several legal arrangements have been made to ensure Turkish law complies with that of the European Union. As a result, air passenger rights are now regulated in Turkey by the Regulation on Air Passenger Rights (the "SHY-passenger regulation").(3) The SHY-passenger regulation is inspired the EU Flight Compensation Regulation and provides for similarly high compensation. For international flights, the same amounts apply, staggered according to distance, as in the EU Flight Compensation Regulation.
One significant difference is that the interpretation of the SHY-passenger regulation is not subject to the jurisdiction of the European Court of Justice (ECJ). Under EU case law, it has been established that the delay of a flight by more than three hours is equivalent to a cancellation.(4) Consequently, passengers on flights with long delays are entitled to compensation under the EU Flight Compensation Regulation, but not under the SHY-passenger regulation, as there is no Turkish case law to this effect. In other respects, the SHY-passenger regulation regulates the rights of air passengers in a manner similar to the EU Flight Compensation Regulation to the greatest possible extent.
Applicability before German courts
However, the question arises as to whether the SHY-passenger regulation would apply in the German courts at all. For many EU citizens, the assertion of the SHY-passenger regulation in Turkey is likely to prove costly and difficult.
The place of jurisdiction for claims arising from the contract of carriage is to be determined in accordance with the Rome I Regulation.(5) However, the Rome I Regulation does not apply if the air carrier does not have its registered office in a member state of the European Union, as is likely the case with most Turkish air carriers.
In such cases, the national rules of paragraphs 12 et seq of the German Code of Civil Procedure (ZPO) would apply as international law governing the place of jurisdiction. In order to arrive at a German place of jurisdiction, the only remaining option is the place of jurisdiction of the place of fulfilment, according to section 29 of the ZPO. Section 29 of the ZPO has been interpreted by the Supreme Federal Court in light of article 5 of the Rome I Regulation, and thus the ECJ's Rehder decision, in a passenger-friendly manner. Thus, the place of performance is optionally the place of departure and the intended place of arrival, so that international jurisdiction before German courts is also given for return flights from Turkey.
In most cases, however, passengers will not be able to derive any claims from the SHY-passenger regulation before the German courts if their ordinary residence is in Germany rather than in Turkey.(6) In the case of a contract of carriage as a contractual obligation, the provisions of the Rome I Regulation apply due to cross-border facts. According to article 5(2) of the Rome I Regulation, the law of the country in which the passengers have their ordinary residence shall apply – unless the parties have made an express choice of law with regard to the contract of carriage.(7)
The application of the SHY-passenger regulation is therefore possible only if the parties agree on its applicability. The legal character of the choice of law is a contract according to which the parties agree on the application of a certain legal jurisdiction, a so-called "contract of reference". However, according to the second sentence of article 3(1) of the Rome I Regulation, the choice of law must be made expressly or be clearly apparent from the provisions of the contract or from the circumstances of the case.
In this respect, according to the general principles on the conclusion of a contract, the parties must agree on the applicable law and that this is Turkish law.(8) In the event of an effective choice-of-law agreement, the SHY-passenger regulation should then also apply before the German courts.
The SHY-passenger regulation enables passengers to assert comparable claims as those available pursuant to the EU Flight Compensation Regulation. However, it only applies before the German courts if it is expressly and verifiably agreed as part of the contract concluded from Germany with Turkish air carriers. However, enforcement would be limited only to claims for cancellation or denied boarding, as ECJ and German case law do not apply to Turkish law.
For further information on this topic please contact Ali Yalcinkaya at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email ([email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
Endnotes
(1) Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91.
(2) Regulation (EC) No. 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community.
(3) Regulation on Air Passenger Rights from the Directorate General of Civil Aviation on the basis of the Regulation (EC) No. 261/2004 of the European Union.
(4) ECJ, 19 November 2009, Christopher Sturgeon v Condor Flugdienst GmbH and Stefan Böck v Air France SA, C-402/07, C-432-07.
(5) Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations.
(6) District Court Paderborn, Ref 1 S 38/18.