Sarah Joanna Haas February 16 2022 C-20/21: no cherry picking of jurisdiction concerning connecting flights Arnecke Sibeth Dabelstein | Aviation - Germany Sarah Joanna Haas Aviation IntroductionFactsDecisionCommentIntroductionOn 3 February 2022, the European Court of Justice (ECJ) decided that a single booking of two connecting flights does not grant the possibility to claim at the court of the destination of the first leg.(1)Following a request for preliminary ruling from the Frankfurt Court of Appeal, the ECJ had to rule on whether passengers who have made a single booking of two connecting flights with two air carriers can claim for compensation at the destination of the first leg under EU Regulation No. 1215/2012. The ECJ was asked to interpret article 7(1)(b) of EU Regulation No. 1215/2012 with regard to whether the place of transit can be seen as the place of performance and jurisdiction in a claim against the air carrier of the first leg.FactsThe plaintiffs all claimed compensation and pre-judicial lawyers' costs from the air carrier of the first leg for a delay of their first flight. The three claimants booked a connecting flight from Warsaw, Poland via Frankfurt am Main, Germany to Malé, Maldives with Lufthansa. LOT Polish Airlines operated the first leg. The flight was delayed and, therefore, the three passengers missed their connection in Frankfurt to the Maldives with Lufthansa. They were rerouted and arrived at their final destination after a delay of more than four hours.The claim was brought in front of the local court of Frankfurt, Germany, in the name of the claimants themselves. The local court rejected the claim as inadmissible on the ground that it did not have jurisdiction, as neither the origin of departure nor the origin of destination of the two connected flights was in Germany. It found Warsaw and Malé as the places of performance, but not Frankfurt as the place of (only) transit.The claimant appealed the decision and the Frankfurt Court of Appeal suspended the proceedings to ask the ECJ to interpret article 7(1)(b) of EU Regulation No. 1215/2012 and the term "place of performance". The Frankfurt Court of Appeal referred to the concept that the place of arrival of the first leg might fall under this definition.DecisionThe ECJ rejected this concept. The ECJ stated that the action in the main proceedings fell within the concept of "matters relating to a contract" within the meaning of article 7(1)(a) of EU Regulation No. 1215/2012. Therefore, a claim for compensation under article 5(1) of EU Regulation No. 261/2004 against the operating air carrier, with which no contractual relation existed, fell under article 7(1)(b).This ruling is consistent with flightright and others v Air Nostrum.(2) From flightright, it also follows that the place of the main provision must be deduced from the provisions of the contract as far as possible.(3) Further, in Rehder v Baltic,(4) the ECJ decided on the basics of jurisdiction for compensation claims: it is the applicant's choice whether to sue at the place of departure of the aircraft or the place of arrival, as those places are agreed in the contract of carriage.(5) Later, the ECJ developed its jurisprudence regarding connecting flights in flightright v Iberia,(6) and decided that, within the meaning of the provision, both the place of departure of the first leg and the place of arrival of the last leg of the journey are places of performance under EU Regulation No. 1215/2012.In its recent judgment, the ECJ emphasised that the claim had been brought solely against the operating air carrier of the first leg due to the delay of this flight, which led the plaintiffs to miss their connection with the contractual carrier (and the operating carrier for the second leg). Therefore, the place that had jurisdiction was the place where – pursuant to the contract – the main provision of services was to be carried out with the closest connecting factor to the contract.(7)In the present case, the ECJ pointed out that there were no elements of the contract that could justify a close link to the local court of Frankfurt and, therefore, no main provision of service could be seen in Frankfurt. The claim under EU Regulation No. 261/2004 thus had to be brought in Poland.In light of the foregoing decisions, the ECJ answered the question in this case in favour of the airline. The second indent of article 7(1)(b) of Regulation No. 1215/2012 must be interpreted as meaning that the place of arrival for the first leg may not be classified as a "place of performance" within the meaning of that provision. In the context of a flight consisting of a confirmed single booking for the entire journey and divided into two or more legs on which transport is performed by separate air carriers, a claim for compensation under EU Regulation No. 261/2004 – arising exclusively from a delay of the first leg of the journey and brought against the air carrier operating that first leg – cannot be brought at the place of arrival of the first leg.CommentThe ECJ's decision is consistent with its previous decisions; the Court clarified that the interpretation of "place of performance" cannot be overstretched. Neither the contract, nor the journey itself, have any connection to a hub from the air carrier, which could be randomly changed, depending on flight times and origins. Though, the ECJ has left open the requirements to prove a connection to the place of transfer due to elements in the contract of carriage.However, a general acceptance was clearly rejected, as this would otherwise also lead to a permissibility of jurisdictions that is difficult to understand and not justifiable. At the end of the day, a passenger does not book their trip with the place in which they have to transfer in mind; the only important things for a passenger are the places of departure and arrival. Airlines do not have to fear being sued in a country with extremely passenger-friendly legislation just because they set up a transfer point there.For further information on this topic please contact Sarah Joanna Haas at Arnecke Sibeth Dabelstein by telephone (+49 403 177 9756) or email ([email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.Endnotes(1) ECJ, 3 February 2022, JW, HD, XS v LOT Polish Airlines, ECLI:EU:C:2022:71.(2) ECJ, 7 March 2018, flightright and others v Air Nostrum, C‑274/16, C‑447/16 and C‑448/16, ECLI:EU:C:2018:160, para 65.(3) Id, para 67.(4) ECJ, 9 July 2009, Rehder v Air Baltic, C‑204/08, ECLI:EU:C:2009:439.(5) Id, para 43 ff.(6) ECJ, order of 13 February 2020, flightright v Iberia, C‑606/19, ECLI:EU:C:2020:101.(7) See Rehder, para 38.