The European Court’s latest rulings
On 7 March 2018, the European Court of Justice (“CJEU”) handed down judgment in the three joined cases of flightright GmbH v Air Nostrum, Líneas Aéreas del Mediterráneo SA (C-274/16), Becker v Hainan Airlines Co. Ltd (C-447/16), and Barkan & Others v Air Nostrum, Líneas Aéreas del Mediterráneo SA (C-448/16). The Court’s ruling deals with some key questions about the relationship between the exercise of jurisdiction over air carriers by national courts under the Brussels I Regulation and claims by air passengers for delay and / or denial of boarding brought under Regulation (EC) 261/2004 arising from problems with connecting flights.
The Court ruled that:
The concept of “matters relating to a contract” found in the special jurisdiction provisions of Article 5(1) (a) of the Brussels I Regulation (44/2001) covered a claim brought by air passengers for compensation for a long delay of a connecting flight that was brought under Regulation (EC) 261/2004 against an operating air carrier with which the passenger concerned does not have contractual relations. The Court reasoned that, while the rule of special jurisdiction for matters relating to contract does not require the conclusion of a contract between two persons, it nevertheless presupposes the existence of a legal obligation freely consented to by one person in respect of another and on which the claimant’s action is based. These rules of special jurisdiction in contract are based on the cause of action not the identity of the parties. In that regard, the Court noted that Article 3(5) of Regulation 261/2004 provides that were an operating air carrier that has no contract with the passenger performs obligations under that regulation, it is regarded as doing so on behalf of the person having a contract with that passenger. Therefore, that carrier must be regarded as fulfilling the freely consented obligations vis-à-vis the contracting partner of the passengers concerned. Those obligations arise under the contract for the carriage by air.
In the case of a dispute concerning a connecting flight, the concept of the “place of performance” for the purpose of the special jurisdiction provisions found in Article 5(1) (b) of the Brussels I Regulation (44/2001) and now Article 7(1) (b) of the Brussels I (Recast) Regulation (1215/2012) must be interpreted as meaning that the “place of performance” of that flight is the place of arrival on the second leg. This is so even where the carriage on both flights was operated by two different air carriers and the action for compensation for the long delay of that connecting flight under Regulation (EC) No. 261/2004 is based on an irregularity which took place on the first of those flights; a leg that was operated by the air carrier with which the passengers concerned did not have contractual relations. In reaching their conclusion, the Court reaffirmed their previous decision in Rehder (C-204/08) in relation to a direct flight operated by the contracting partner of the passenger concerned, which held that a claimant seeking compensation could choose the court in whose territorial jurisdiction either the place of departure or the place of arrival of the aircraft took place. The Court also considered that the Rehder principles applied mutatis mutandis to a booked connecting flight consisting of two legs. But here the Court’s conclusion was that a single booking for the entire journey establishes the obligation for an air carrier to carry a passenger from point A to point C, and the Court considered that such a carriage operation constitutes a service of which one of the principal places of provision is at point C. It is that location only which meets the requirements of legal certainty.
The second ident of Article 5(1) (b) of the Brussels I Regulation (which provided that “(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:… -- in the case of provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided”) must be interpreted as not applying to a defendant domiciled in a Third State. Any questions of jurisdiction over such a defendant carrier which is not domiciled in the EU is to be determined by the national law of the Member State and not by the Brussels I Regulation.