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The Court of the Justice of the European Union (hereinafter will be referred as “CJEU” or “the Court”) has published a press release regarding the judgment on the case Libuše Králová v Primera Air Scandinavia A/S on March 26, 2020. The Court has released its analysis on significant air transport issues that numerous air passengers are facing. In brief, the Court in its judgment has concluded that an air passenger who reserved his/her flight over a travel agency may seek an action for compensation in account of a long flight delay against the air carrier before the courts of the place of departure of the flight irrespective of the absence of a contract concluded between the air passenger and the carrier.
Ms Libuše Králová, the air passenger and the applicant in the case, entered into a contract with a travel agency established in Czech Republic. The contract was a package travel contract consisting of a carriage by air from Prague, Czech Republic to Keflavík, Iceland and an accommodation in Iceland. Primera Air Scandinavia, the Danish air carrier and the defendant in the case, was the operating air carrier according to the contract. The flight from Prague to Keflavík, was delayed by four (“4”) hours by reference to the scheduled departure time.
After a while, the air passenger filed an action for compensation in account of long flight delay for an amount of €400 against the air carrier before the 8th District Court of Prague. However, the 8th District Court of Prague (hereinafter will be referred as” the Czech Court”) had doubts as to its jurisdiction and “matters relating to contract” subject to Regulation No 261/2004 and No 44/2001 and referred its questions to the CJEU. The Court was asked the following respects:
(i) Did a contractual relationship exist between the applicant and the defendant for the purposes of Article 5(1) of the Regulation No 44/2001, even though no contract had been concluded between the applicant and the defendant and the flight was part of a package of services provided on the basis of a contract between the applicant and a third party, travel agency?
(ii) Does the defendant have legal capacity to be sued in an action seeking satisfaction of the claims arising from Regulation No 261/2004 of the European Parliament and of the Council?
Regulation No 44/2001 of the Council of the European Union, establishing the rules on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, stipulates in article 5(1) that a person domiciled in a member state can be sued in another member state, in matters relating to a contract in the courts for the place of performance of the obligation in question. Subject to this, the Czech Court asks the CJEU, whether the approach prescribed in article 5(1) is also valid in circumstances such as those of the present case, where the other party to the contract with the passenger concerned was not the operating air carrier but a travel agency that sold her the flight at issue as part of a combination of travel and accommodation. Addressing to Flightright and Others judgment, the Court clarified that irrespective of the fact that the operating air carrier is not in a contractual relationship with the air passenger, article 5(1) shall be interpreted as to the air carrier in question agreed to fulfill obligations on behalf of that party to the contract. Thus, the Court reiterated that in terms of the main proceedings in the present case, provided that the Danish air carrier freely consented to provide the flight sold by the Czech travel agency, it could not fail to be aware of both the place of departure and the place of arrival of the aircraft and that it must therefore have reasonably expected, like the passenger concerned, that any dispute would be brought before a Czech court. In those circumstances as an answer to the first question, the Court concluded that article 5(1) of Regulation No 44/2001 shall be interpreted as meaning that it covers an action for compensation sought by a passenger against the operating air carrier, even though those parties had not entered into a contract between them and though that flight consisting of a package of services supplied under a contract entered into between the applicant and a third party, travel agency.
By the second question, the Court was asked to rule whether an operating air carrier can be sued by an air passenger for the exercise the rights deriving from Regulation No 261/2004, establishing the common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
As regards to the objectives of the provisions under Regulation No 261/2004 and its preamble, the regulation is aimed at ensuring a high level of protection for passengers, although it also seeks to ensure a balance between the interests of the protected passengers and those of the air carriers. Thus, articles 7 and 8 of such regulation establishing the right to compensation and the right to reimbursement or re-routing; clarify that these provisions shall also apply to passengers whose flights form part of a package. This was also clarified in the judgment in Aegean Airlines that the right to reimbursement of the costs of the airline ticket provided for in paragraph 1(a) of the article 8 is also to apply to passengers whose flights form part of a package. As a conclusion, the Court ruled that articles as to delay and right to compensation under Regulation No 261/2004 shall be interpreted as meaning that a passenger on a flight delayed by three (“3”) hours or more can claim compensation from the operating air carrier on the basis of that regulation, even though those parties had not concluded a contract and although that flight formed part of a package of services relating to package travel, package holidays and package tours to be supplied under a contract concluded between that passenger and a travel agency.
Author: Ezgi Ceren Aydoğmuş
