Miguel Ortego Ruiz

The Court of Justice of the European Union («CJEU») held, on Králová v. Primera Air Scandinavia (C-215/18), that a passenger who reserved his or her flight through a travel agency may bring an action for compensation for a long flight delay against the air carrier before the courts of the place of departure of the flight.

The ruling of the CJEU takes place in a situation in which Ms. Králová (domiciled in Prague) contracted a package travel with an agency-FIRO-tour-that included, first, carriage by air from Prague to Keflavík, operated by «PRIMERA» and, second, accommodation in Iceland. The flight was arranged for April 25th 2013.

The flight was finally delayed for more than four hours, so Ms. Králová brought action for compensation against PRIMERA at the Pague’s Courts pursuant to Regulation 261/2004. The District 8 Court of Prague ruled that, it had no jurisdiction to hear that action on the ground that Regulation Brussels I (44/2001) dit not apply to Denmark (place of PRIMERA’s headquarters), neither in terms of non-contractual liability nor about contractual liability (as the agreement was signed between Ms. Králová and FIRO and not PRIMERA). The Court went beyond that and also stated that even if it were to be deemed there was an agreement between the parties, it would not qualify under art. 15.3 RBI .

Ms. Králová appealed and the Municipal Court of Prague dismissed the appeal. It held that the RBI had applied Denmark since July 1st 2007,but that it could not serve as a basis for jurisdiction of the Czech courts in the main proceedings. Ms. Králová reach the Supreme Court that set aside the both ruling of the courts a quo and referred the case back to the District Court 8 commanding it to review PRIMERA’s legal capacity to be sued in light of articles 5.1), 15 and 16 of RBI. As the Court hesitated on whether the competence should be attributed according to the performance of the obligation in question (art. 5.1.b)) or the courts where the consumer is domiciled (art. 16.1)), it asked the CJEU.

On the third question (whether PRIMERA has legal capacity to be sued), the CJEU took advantage to answer the first one too (whether it existed a contractual relationship between the parties in light of RBI as the relation was between Mr. Králová and FIRO and PRIMERA was just the carrier), as they were connected in their opinión, the Court answered that a passenger whose flight has been delayed may rely on Regulation 261/2004, even if the passenger and the operating air carrier have not concluded a contract between them (§29) and the flight in question is part of the package tour covered by Directive 90/314 (§38).

But the key issue here is what is the meaning of «matters relating to a contract» and whether in could be applied to this case even though the passenger and the carrier did not entered in an agreement. Well, the Court reminds that a contract is not a requisite to apply art. 5 RBI but it is still needed an identified obligation (§42 and 43). It also states that «matters relating to a contract» cannot be understood as covering a situation in which there is no obligation freely assumed by the parties (§43).

Having said that, the ratio decidendi lies within the following reasoning: provided that art. 3.5) of Regulation 261/2004 sets forth that in those cases where an operating air carrier performs obligations under this regulation (and has no contract with the passenger) it is deemed to be doing so on behalf of the person actually having a contract with the passenger. Thus, the carrier is fulfilling obligations freely consented (§ 47 and 48). Therefore, this situation must be regarded as a «matter relating to a contract» under art. 5.1) RBI and to that extent, actions against PRIMERA could be brought before either court of the place of performance of the contractual obligations must be observe (i.e. the place where the services must be fulfilled-art. 5.1.b).II RBI, Prague or Keflavík).

In relation to the place of the «performance of the contractual obligations» in a matter as such, we have to go back to CJEU as of March 7th 2018, Flightright and Others (C-274/16, C-447/16 and C-448/16) where the Court clarified that in a direct flight the «the place of departure and the place of arrival of the aircraft must be considered, likewise, as the places of main provision of the services» allowing jurisdiction-at the applicants choice-on the court in whose territorial jurisdiction the place of departure or the place of arrival of the aircraft are situated» (§68). This reasoning should be also applied mutatis mutandis in no direct flights (§69). The CJEU stated likewise in C-606/19 (§26 and 27).

To conclude with this analysis, the Court denied the possibility to apply Sección 4 of RBI (contracts with consumers) as the CJEU has admitted that «other party to the contract» set forth in article 16.1 RBI ought to be interpreted as covering also the contracting partner of the operator with which the consumer concluded that agreement, but that interpretation relies on very specific circumstances (the consumer was from the very begining part inseparably to the contracting partners) (§64). Therefore, the action brought by Ms. Králová in this particular situation «does not come within the scope of those articles relating to special jurisdiction over consumer contracts» (i.e. Section 4 RBI) (§65). If things were not this way, Section 4 will apply preferably to general forum (art. 4) and special for (art. 5) (see §55).

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