jurisdiction in respect of claims under ec-regulation 261/2004

Jurisdiction in respect of claims under EC-Regulation 261/2004

Consumer protection from a different perspective

The 22nd IFTTA World Conference Rome, 1 - 5 September 2010 1

Introduction

ECJ 9 / 7 / 2009, Case C-204/08Rehder vs. Air Baltic

Strictly : not Reg.261/2004, but :

Reg. 44/2001 => how to enforce Reg. 261/2004?

Observations and remarks in a private capacity

2The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

ECJ : Rehder vs. Air Baltic

• Case:– Rehder booked Air Baltic flight Munich – Vilnius– Cancellation => Rehder rerouted through

Copenhagen on other flight– Rehder claims € 250 re cancellation– Amtsgericht (subdistrict court): jurisdiction – Oberlandesgericht (appeal): no jurisdiction– BGH (Supreme court): preliminary questions


ECJ : Rehder vs. Air Baltic

• Preliminary: does article 33 Montreal Conv. apply re determining court’s jurisdiction?

basis of right at stake is article 7 Reg 261/2004standardised + lump sum payment is independant of

compensation in context of article 19 Montreal (ECJ 10/1/06, C-344/04 (IATA&ELFAA)

result: right based on Reg 261/2004 resp. Montreal fall within different regulatory frameworks

claim ex Reg 261/2004 to be examined in light of Reg. 44/2001


ECJ : Rehder vs. Air Baltic (2)

• Essence of questions:

how to interpret ‘place in Member State where, under the contract, services were or should have been provided’ in 2nd indent of article 5 (1)(b), Reg 44/2001 in event of air transportation of pax from a Member Sate to another Member State in context of claim based on Reg 261/2004?



• Interpretation of this question:

in reality question is: same interpretation as was given to 1st indent of artcle 5(1)(b) re several places of delivery within single Member State in ECJ 3/5/2007, C-386/05 (Color Drack)?



• Color DrackInterpretation of 5(1)(b) in light of origin,

objectives and schemes of Reg 44/2001Principles of predictability and proximity • unification of rules of conflict of jurisdiction by way of

highly predictable rules (2nd + 11th recital) => easy identification by parties of court where to sue/be sued • jurisdiction generally based on defendant’s domicile,

re contacts complemented by special jurisdiction ex 5(1) => close link contract – court to decide case



• Color Drack: one court must have jurisdiction

5(1) also applies in event of several places of delivery of goods in one single member state

Closest linking factor contract – court:a. place of principal deliveryb. if no such place, each place of delivery



• Same factors apply to contract re provision of services, including when such provision is not in one single member state same origin same objectives => predictability & proximity same place in scheme of Reg.44/2001 => 5(1)(b) differentiation in case of provision in different

Member States contrary to objectives



• In air transport: which place has closest linking factor between contract - court?place of registered office, principal place of

business, place of conclusion of contract/issue of ticket/stop-over? No

Activities re logistic and preparation of flight (provision of adequate aircraft and crew)

≠ services linked to actual contents of contract



• In air transport: which place has closest linking factor between contract - court?Places of departure and arrival? Yes, only ones

check-in, boarding, on-board reception, departure at scheduled time, transport of pax + luggage, care during flight, disembarkation in conditions of safety at place of landing at time scheduled in contract = services

to be understood as agreed in contract of carriage, made with one single airline which is operating the flight



• Interpretation of 5(1)(b), 2nd indent Reg. 44/2001:

court of place of departure and court of place of arrival as agreed in air transport contract , at claimant’s choice, have jurisdiction re claims founded on Reg. 261/2004 and such contract with only one airline which is operating flight re transport of pax from one Member State to another Member State


What’s the point?

Montreal Conv. /Warsaw (HP)• Article 33 (28): jurisdiction

– Domicile of carrier– Princ. place business carrier– Place business through which

contract has been made– Place of destination

• Article 45 (VIII Guadaljara):– Domicile/principal place of

business of actual carrier

Reg. 44/2001 • Articles 2, 5, 60 :

– 2: place of domicile– 5: place where services were or

should have been provided– 60: domicile of company : stat.

seat, central administr., princ.place of business

• Article 15(1) + 16(1):– domicile of consumer

• ECJ: Rehder vs Air Baltic– place of departure /arrival


What’s the point?


• Jurisdiction ex Reg.44/2001+ place departure >

jurisdiction Montreal (Warsaw)

– before Reg. 261/2004 jurisdiction not real issue• If litigation by consumer-pax => Montreal provisions

clear enough and interests too important

– Reg. 261/2004 = opening for great number of small consumer claims j° internet booking/selling

What’s the point?

• Example:– claim of € 250 re delay of NL-pax on flight from

Duesseldorf to Rome with EU-based /non-NL -airline , booked through NL-website in NL

NB: Rehder-case: Munich = place departure + Rehder ‘s domicile

=> no jurisdiction for NL-court under Montreal or Reg 44/2001 incl. Rehder-case


What’s the point?

• In fact: transport contract in example = consumer contract– jurisdiction => 15 (1) + 16 (1) Reg. 44/2001

a. court of domicile of other party AND b. court of domicile consumer

BUT: 15(3) => 15(1) not applicable to transport contract which is not part of package

=> no jurisdiction in consumer ‘s domicile!


What’s the point?

• Result in example:Less protection for NL-consumer-pax => opposite to package tour consumer who

booked through NL-website, no NL-jurisdiction on basis of consumer-provisions (15-17) of Reg. 44/2001

How to improve the consumer’s position ?


What’s the point?

• Observations– priority of treaties/conventions to which EU is a

party, above Community-legislation

– Reg. 261/2004: 1st + 4th recitalactions by Community in field of air transport should

aim at ensuring high level of protection for paxraise standards of protection to strengthen pax rights


What’s the point?

• Observations (2):– Reg 261/2004 is regulatory framework different

from Montreal, thus to be examined in light of Reg 44/2001 (IATA&ELFAA; Rehder vs. Air Baltic)

– Reg 44/2001: 13th recitalre consumer contracts, protection of weaker party by

jurisdiction rules more favourable to his interests than general rules provide for

– objective of 15(3): not to interfere with claims founded on conventions re transport


Conclusion

• No justification on objective grounds to maintain 15(3) Reg. 44/2001imbalance between consumers within community

to detriment of consumer-pax who claims on basis of contract of air carriage and Reg. 261/2004

• Suggestion: exempt these claims from 15(3)preferably by modification of Reg 44/2001

ECJ as a quasi-legislator like in Sturgeon vs. Condor (ECJ 19/11/2009, C-402/07) is confusing, at least a bit…


Thank you very muchfor your attention!

Harry ManuelVice-PresidentDistrict Court Zwolle-Lelystad


jurisdiction in respect of claims under ec-regulation 261/2004

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