Operating carriers at risk of Regulation 261/2004 claims even when they are not the contracting carrier

The industry is well acquainted with the vast array of EC Regulation 261/2004 (‘EC 261/2014’) decisions. Whilst it waits with baited breath for signs that a reform may still be on the horizon, claims still make their way to the Court of Justice of the European Union (CJEU) for preliminary rulings (yes, you ask, how can there still be more doubt about EC 261/2014’s application?).

The most recent referral to the CJEU (joined cases C-274/16, C-447/16 and C-448/16) relates to three separate claims. These have recently been considered by General Advocate Bobek and we set out below an overview of his opinion.

The first and second claim

The first two cases both concern two connecting flights sold by a contracting carrier (‘CC’), where the CC only performed the second leg of the journey, the first being performed by a separate operating carrier (‘OC’) who had no direct contract in place with the passengers. In both of these cases, the OC legs of the journeys were delayed causing the passengers to miss their connecting flight and suffer delays at their final destination of more than three hours. In both cases, the passengers issued proceedings against the OC in Germany, which was the final destination of the second leg of their journey. These cases raise the following questions:

1. Would the claims against the OC be classified as ‘a matter relating to a contract’ within the meaning of EC Regulations 44/2001 (applicable to the first claim) and 1215/2012 (applicable to the second claim) both of which relate to jurisdiction?
2. Was Germany the correct forum for bringing the claims when the OC never departed or landed there?

General Advocate Bobek’s opinion concludes that:

1. Regulation 44/2001 should be interpreted as meaning that ‘a matter relating to a contract’ includes claims brought under EC 261/2004 where the claim is brought against an OC which is not party to the contract with the passenger which is concluded with another air carrier (the CC); and
2. Regulation 44/2001 and Regulation 1215/2012 should be interpreted as where passengers travel on two connecting flights, the place of departure of the first leg and the place of arrival of the second leg constitute the place of performance when a claim is directed against an OC with whom the delay occurred and where the OC is not the CC.

The third claim

This concerned a claim for compensation for denied boarding against a carrier, which was both the passenger’s OC and CC for the leg of the journey for which the passenger was denied boarding. This case differs from the first two cases because the carrier was not based in the EU. The claimant issued proceedings in Germany, being the place of departure of the first leg of his journey. The local German court referred this matter to the CJEU to determine which international jurisdiction should apply, taking into consideration Regulation 44/2001. Advocate General Bobek’s opinion determines that the rules of jurisdiction under Regulation 44/2001 are not applicable where a defendant is based outside the EU. Instead, the international jurisdiction of the court seized must be determined under the rules applicable ‘in the forum of the court seized’. This should not, however, make enforcement of a claim for compensation brought under EC 261/2004 ‘practically impossible’ or ‘excessively difficult’.

Analysis

Whilst currently an opinion, Advocate General Bobek’s analysis of these three claims supports the UK Court of Appeal’s notion in Gahan -v- Emirates that directly connecting flights should be considered together and that non-EU airlines operating connecting flights into or out of the EU will be liable to pay compensation.