Passenger rights: what is the competent court?
In the previous articles on passenger rights in the event of flight delay/cancellation or denied boarding, we have analyzed all the actions available to travelers to obtain respect for their rights, including financial compensation and compensation for further damages caused by disruptions suffered.
Among these, the final solution consists in summoning the person responsible for the damage suffered by the passenger (usually the airline) to the court competent to decide the case.
European legislation on the protection of travelers has changed in recent years and, with it, also the legislation governing the jurisdictional and territorial competence of the judge called to decide on such disputes.
The reference legislation
The main sources of legislation on jurisdiction are:
- EU Regulation 1215/2012, which in art. 7, 1st paragraph, provides that “A person domiciled in a Member State may 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; (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be”. In case of provision of services (such as the contract of carriage of passengers), the place of performance of the obligation is the one located in the Member State where the services were or should have been provided under the contract.
- The Montreal Convention of 1999, for the unification of certain rules on international air transport, which in art. 33, first paragraph, provides: ” An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination“.
The two rules are evidently conflicting, as for the EU Regulation 1215/2012 jurisdiction belongs to the judge of the place of performance of the obligation (which, in the case of air transport, is the place of departure or arrival of the flight). While the Montreal Convention of 1999 considers that the jurisdiction lies with the judge of the domicile of the carrier.
Clarification by the Court of Justice of the EU
The EU Court of Justice was recently called upon by a judge of the Court of Rome to clarify whether the jurisdiction is that of the judge of the place of performance of the obligation or of the domicile of the carrier, in the event that the passenger requests the judge , contextually:
- recognition of the pecuniary compensation envisaged by the combined provisions of articles 5, 7 and 9 of Regulation 261/2004, and therefore also governed by EU Regulation 1215/2012),
- further compensation for damages pursuant to art. 12 of Reg. 261/2004, which refers to the Montreal Convention of 1999), as a result of flight delay/cancellation or denied boarding.
The Court of Justice, with sentence of 7.11.2019, at the outcome of the case n. C-213/18, established that, if the judge of a Member State is called upon to rule on a case such as the one indicated above, he must assess his own jurisdiction:
- for the first head of the request, in the light of article 7, point 1, of regulation no. 1215/2012 (jurisdiction of the judge of the place of departure or arrival of the flight);
- for the second head of the claim, in the light of article 33 of this convention (jurisdiction of the judge of the place of domicile of the carrier or of destination of the flight).
Therefore, according to the Court, the judge must assess, on a case-by-case basis, whether he is competent to decide on both requests, or on only one of them (or on none).
In the latter two cases, he will have to declare in advance his own incompetence on the relative question (or on both) and indicate the judge deemed competent to decide on the same.