Introduction
Facts
Decision
Comment
On 10 November 2021, the Joint Sections of the Italian Supreme Court issued Judgment No. 33002/2021 on an application for a preventive jurisdictional ruling relating to a dispute concerning an air transport contract.
In the Italian legal system, when doubts arise as to the actual subsistence of jurisdiction in favour of the national courts, article 41 of the Italian Civil Procedure Code allows each party to refer the ruling on jurisdiction to the Joint Sections of the Supreme Court, provided that the case has not yet been decided on the merits at first instance.
In the present case, a company operating in various European countries (including Italy) as assignee of claims arising from air transport services disruptions sued a non-EU airline before the Justice of the Peace of Rome in order to obtain €800 in monetary compensation on the basis of articles 5 and 7 of the EU Flight Compensation Regulation(1) following the delay of a flight operated by the non-EU airline.
During the first hearing, the proceeding pending before the Justice of the Peace in Rome was interrupted following a request for a ruling on jurisdiction made by the lawyers of the airline, due to the fact that the case concerned an alleged assignment of a claim between by two non-EU citizens to a foreign company in order to obtain compensation from an airline that was also a non-EU company.
The applicants denied that the Italian court had jurisdiction on the basis of two separate arguments: the first related to the legal position of the assignor passengers, and the second, to the very nature of the contract of assignment.
With regard to the first point, it was argued that the non-EU nationality of the passengers automatically prevented any link with Italian jurisdiction, since the case did not concern either a tort or a contractual matter subject to Italian jurisdiction. Also, the contract of assignment was unquestionably entered into outside Italian territory.
As to the second point, the applicants argued that, since this was not a dispute concerning international carriage but the assignment of a claim, jurisdiction could not be established in relation to the place of departure of the aircraft under the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Warsaw Convention 1929), later transferred to the Unification of Certain Rules Relating to International Carriage by Air (the Montreal Convention 1999). The principle of jurisdiction based on the domicile of the assignee (in the case of a pecuniary obligation), or of the assignor should therefore be applied. In both cases, this excluded Italian jurisdiction.
The assignee company, in its counterclaim, objected to these arguments. It argued that the pecuniary compensation element of the contract of assignment of the claim was strictly related to the contract of carriage. Therefore, it was necessary to refer to the latter in order to define the criteria for establishing jurisdiction.
Therefore, following this argument, the assignee company would be in the same contractual position as the assignor passengers, and therefore article 7 of EU Regulation No. 1215/2012 should be applied. According to this regulation, jurisdiction lies in the member state where the services were provided or should have been provided for disputes arising from contracts for the provision of services. In the present case, the place of departure was Milan, and therefore Italian jurisdiction should exist.
In examining the question, the Joint Sections of the Italian Supreme Court first of all considered it necessary to define the nature of the contract at issue. In doing so, the Court referred to its own well-established case law.(2) The case law states that the jurisdiction clause contained in a contract remains applicable even if the claim under the contract itself has been assigned. This is because the assignee cannot assume a different or detrimental contractual position to that of the assignor. This principle is also found in the subsequent Judgment No. 29179/2020, where it was deemed applicable to the criterion for determining jurisdiction contained in article 7(1) of EU Regulation No. 1215/2012. This confirms the well-established EU approach by which the assignment of the claim cannot, per se, affect the criteria for determining jurisdiction.(3)
Having established that the issue concerned an international contract of carriage, the Court was left with two further questions.
Firstly, the Court asked whether the guidelines set out in EU Regulation No. 1215/2012 were applicable to actions seeking to obtain the flat-rate and standardised fees provided for by the EU Flight Compensation Regulation. The Court asked whether the connecting criterion with Italian jurisdiction, which in this case was the place of departure of the flight, could be decisive for the purposes of applying EU Regulation No. 1215/2012. In answering this question in the affirmative, the Court referred to the settled case law of the European Court of Justice.(4) This unequivocally states that in relation to actions concerning the EU Flight Compensation Regulation, article 7 of EU Regulation No. 1215/2012 is applicable.
Finally, the Court had to verify whether article 7 of EU Regulation No. 1215/2012 was applicable to the present case, even though neither the airline nor the assignee of the claim was domiciled in an EU member state. In answering this last question, the Court referred to its own recent precedent,(5) where it was stated that, according to article 6 of EU Regulation No. 1215/2012, if the defendant is not domiciled in a member state, the criteria for jurisdiction of the courts of each member state are provided for by the law of that state. In light of this, and in application of the rule for determining jurisdiction contained in article 7(1)(a) of EU Regulation No. 1215/2012, it was confirmed that the applicant may bring the case at the place of performance of the obligation, or, with reference to the contract of carriage, at the place where the service has been provided or where it should have been provided (a similar provision to the one set by article 5(1) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which indicates, among the potential alternative places of jurisdiction in contractual relationships, the one of the obligation's performance).
For all the above reasons, the Court decided to recognise the jurisdiction of the Italian courts, leaving the decision on the merits to the Justice of the Peace of Rome.
This judgment further clarifies the possibility of applying EU Regulation No. 1215/2012 in relation to actions seeking to obtain the flat-rate and standardised fees set out in the EU Flight Compensation Regulation, even if brought following the assignment of alleged claims by passengers to an assignee entity.
In the absence of a connection based on the parties' domicile, the judgment provides the possibility for claimants to bring legal actions at the place of the performance of the obligation, and more precisely – with reference to a contract of carriage – at the place where the service was provided or where it should have been provided.
In view of the above and the fact that, in Italy, the judges' inclination (especially in local courts such as the Justices of the Peace) is strongly pro-consumer oriented, companies acting as assignees of claims under the EU Flight Compensation Regulation are intensifying their activities against airlines operating in the Italian market, partly as a result of the many flight disruptions linked to the covid-19 pandemic.
For further information on this topic please contact Laura Pierallini or Giulio Teofilatto at Studio Legale Pierallini e Associati by telephone (+39 06 88 41 713) or email ([email protected] or [email protected]). The Studio Legale Pierallini e Associati website can be accessed at www.studiopierallini.it.
Endnotes
(2) See, among others, Judgment No. 7736/2020 and Judgment No. 10862/2011.
(3) See, among others, case C-498/16.