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Code sharing allows air carriers to provide a wide range of travel options for their passengers under a confirmed single booking, operation of several air carriers. Due to the necessities of global airline industry, use of code sharing agreements has been rapidly increased. Court of Justice of the European Union (“hereinafter will be referred as the Court”) has published a press release numbered 16/20 on February 20, 2020 upon decision of the case between a German based company, Flightright v. Spanish air carrier, Iberia[1]. Certain considerations in this decision of Court of Justice of the European Union, are of great importance for airline companies that frequently utilizes from code sharing agreements.
The dispute in the main proceedings concerns three connecting flights under a confirmed single booking for two passengers scheduled for August 25, 2018. Booking has comprised a three-leg flight operated by two separate air carriers respectively British Airways and Iberia. The dispute arose when the third leg of the flight operated by Iberia was cancelled without the passengers being informed in due time. Passengers at issue, applied to Flightright and requested for compensation. Flightright, lodged the file before the Amtsgericht Hamburg (Local Court, Hamburg) which is the place of departure of the first leg operated by British Airways. However, Hamburg Local Court had doubts as to (i) whether it has international jurisdiction over the dispute in the main proceedings and (ii) whether the passengers at issue may sue both air carriers involved in the operation of connecting flights that gave rise to the dispute in the main proceedings. Local Court of Hamburg referred its questions to the Court before preliminary ruling.
Having said, three connecting flights in the case were from Hamburg (Germany) to London (United Kingdom), London to Madrid (Spain) and finally, Madrid to San Sebastian (Spain). First two leg of the flights was operated successfully, yet the third leg of the flight were unduly cancelled and passengers were not duly informed. Passengers applied to Flightright, a Potsdam (Germany) registered company which helps air passengers to claim compensation. Flightright claimed for 500 Euros against Iberia relying on Article 5(1)(c) and 7(1) of Regulation numbered 261/2004 (“Regulation no 261/2004”) which aims to establish common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.
The Court commenced its’ examination in the light of the provisions of Regulation No 1215/2012 which regulates its jurisdiction, recognition and enforcement of judgments in civil and commercial matters. According to article 7(1)(b) of Regulation No 1215/2012, special jurisdiction as to a person domiciled in a member state to be sued by in another member state shall be applied where the “place of performance” of the obligation shall be the place in a member state where, under the contract, the services were provided or should have been provided. The question hereupon is, whether the “place of performance” enshrined in article 7(1)(b) [2]can be interpreted as the place of departure of the flight consisting several legs under one booking, in a case where transport on those legs is performed by two separate air carriers. Addressing to Rehder v. Air Baltic, the Court has considered both the place of arrival and the place of departure of the aircraft as the place of provision of the services which are the subject of an air transport contract.[3] In addition, the Court held that in the case of air transport of passengers from one member state to another member state by the operating carrier, the Court will have jurisdiction to deal with a claim for compensation deriving from the transport contract, at the place of applicant’s choice which has territorial jurisdiction over the place of departure or place of arrival of the aircraft, as those places are agreed in that contract. Even so, the Court has interpreted the concept of “place of performance” regarding a direct flight in Rehder judgment, it has concluded that mutatis mutandis, this interpretation also applies to situations in which the entire travel comprises several connecting flights via operation of separate air carriers under a confirmed single booking [4].
Since the case concerns a single booking of three connecting flights, Iberia did not conclude an agreement with either passengers at issue. Hereby, another question is asked upon the interpretation of “place of performance” in scope of the organization of parties to an air transport contract. Article 7(1) of Regulation No 1215/2012 as to special jurisdiction, does not require the conclusion of a contract between two persons but it requires the existence of a legal obligation freely consented to by one person in respect of another. In that regard, Article 3(5) of Regulation No 261/2004[5] clarifies that where an operating air carrier which has no contract with the passenger performs obligations, it shall be regarded as doing so on behalf of the person having a contract with that passenger. As the conclusion, the defendant Iberia shall be deemed as the operating carrier of two leg of the flights in light of the provisions.
On cited grounds, the Court has concluded that “place of performance” in respect of a flight consisting of a confirmed single booking and performed by several air carriers, can be the place of departure of the first leg of the connecting flights under a single booking. Thus, the claims arising from cancellation of the final leg of the flights may be brought before the courts of the place of departure and the air carrier operating the final legal leg may be sought in courts of the place of first leg.
[1] Court of Justice of the European Union, Press Release No 16/20, Order of the Court in Case C-606/19 Luxembourg, 20 February 2020.
[2] The European Parliament & The Council of The European Union, Regulation No 1215/2012, 12 December 2012, art. 7(1).
[3] Court of Justice of the European Union, judgment, Rehder v. Air Baltic Corporation, 9 July 2009, para. 43&47.
[4] Court of Justice of the European Union, judgment, flightright GmbH v. Iberia LAE SA Operadora Unipersonal, 13 February 2020, para.27.
[5] The European Parliament & The Council of The European Union, Regulation No 261/2004, 11 February 2004, art.3
Author: Ezgi Ceren Aydoğmuş
