A passenger’s right to sue an air carrier for a flight delay before the courts of the place of departure

On 26 March 2020, the European Court of Justice (ECJ or the Court) delivered a preliminary ruling in the case of Libuse Kralova (the “Plaintiff”) vs Primera Air Scandinavia A/S (the “Defendant”) in relation to the proper interpretation of (i) the Brussels Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matter (the “Brussels Regula

tion”) 1 in conjunction with (ii) the Regulation on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (the “Flight Compensation Regulation”) 2.

In the case at hand, the Defendant entered into a package travel contract with a Czech travel agency consisting of a flight between Prague (Czech Republic) and Keflavík (Iceland) operated by the Defendant together with accommodation in Iceland. The Defendant’s flight on 25 April 2013 was delayed by four hours and she subsequently brought an action for compensation against the Defendant before the District Court in Prague (the “District Court”) in terms of Articles 6(1) and Article 7 of the Flight Compensation Regulation.

The District Court raised concerns as to whether it was the competent forum to hear the action brought by the Defendant on the basis of Article 2(1) of the Brussels Regulation which provides that “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of

that Member State.” 3 The District Court further noted that since the jurisdiction of the Defendant’s domicile was Denmark, the Brussels Regulation was not applicable in the case at hand seeing that Denmark is not subject to its application. Moreover the District Court was of the view that the special jurisdiction provisions found in the Brussels Regulation which, in matters relating to a contract, allow a person domiciled in a Member State to be sued in the courts for the place of performance of the obligation in question45, are only applicable where there is a contractual relationship between the parties concerned. In the present case, the District Court noted that the Plaintiff’s contract was with the travel agency and not the Defendant thus held that it did not have jurisdiction.

Following various appeals, the Czech Supreme Court held that the District Court should examine whether the Defendant could have been sued in terms of Article 5(1), Article 15 and Article 16 of the Brussels Regulation. Accordingly, it annulled the decree handed down by the District Court and referred the matter back to it for reconsideration. The District Court noted that it was not able to make such an assessment and thus decided to suspend the proceedings and refer the matter to the ECJ for a preliminary ruling. Essentially, the bone of contention in this case was whether there exists a contractual relationship between the Plaintiff and the Defendant in its capacity as operating carrier, allowing the Plaintiff to bring an action against the Defendant, qua carrier, before it since it was the court of the place of departure of the delayed flight.

First of all the ECJ had to consider whether a contractual relationship existed between the Plaintiff and the Defendant under the Flight Compensation Regulation which would allow the Plaintiff to claim compensation for the flight delay under said regulation.

The ECJ referred to Article 2(b) of the Flight Compensation Regulation which defines an “operating air carrier” as an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger. Furthermore, Article 3(5) states that the provisions of the Flight Compensation Regulation shall apply to any operating air carrier providing transport to passengers. Where an operating air carrier which has no contract with the passenger performs obligations under the regulation, such operating carrier, shall be regarded as doing so on behalf of the person having a contract with that passenger. Thus the ECJ held that in terms of these provisions, the Plaintiff could invoke the provisions of the Flight Compensation Regulation against the Defendant even though it did not have a direct contractual relationship with it. In addition, the ECJ also considered the applicability of the Flight Compensation Regulation in relation to the applicability of Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. It was held that the right to seek compensation under the Flight Compensation Regulation is applicable in a situation where the purchase flight formed part of an all inclusive package without prejudice to the separate rights the Plaintiff may have in terms of Directive 90/314/EEC.

The ECJ then turned its attention to the provisions of the Brussels Regulation. In relation to Article 5(1) the ECJ noted that even though the conclusion of a contract is not a sinequanon for the application of this provision, relying on said provision presupposes the existence of an underlying obligation between the parties. The ECJ reiterated the definition of ‘operating air carrier’ found in the Flight Compensation Regulation and the obligation of such operating air carrier vis-à-vis its passengers. Accordingly the ECJ held that even though there is no contract concluded directly between a passenger and the airline due to the existence of a separate package travel contract with a travel agent, a claim for compensation directly against said airline would still fall within the context of ‘matters relating to a contract’ as required in Article 5(1). Accordingly the ECJ held that the Plaintiff could institute an action directly against the Defendant in the courts of the jurisdiction of departure.

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 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 Article 2(1), Brussels Regulation.

Article 5(1), Brussels Regulation In the case of Peter Rehder v Air Baltic Corporation (Case C204/08) the ECJ held that in the case of air transport of passengers from one Member State to another Member State, carried out on the basis of a contract with only one airline, which is the operating carrier, the court having jurisdiction to deal with a claim for compensation founded on that transport contract is that, at the applicant’s choice, which has territorial jurisdiction over the place of departure or place of arrival of the aircraft.