OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 20 June 2019 (1)
Case C‑213/18
Adriano Guaitoli,
Concepción Casan Rodriguez,
Alessandro Celano Tomassoni,
Antonia Cirilli,
Lucia Cortini,
Mario Giuli,
Patrizia Padroni
v
easyJet Airline Co. Ltd
(Request for a preliminary ruling from the Tribunale ordinario di Roma (Rome District Court, Italy))
(Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Articles 5, 7, 9 and 12 — Action seeking lump-sum compensation and individualised compensation for loss and damage suffered by passengers as a result of flight cancellation or significant delay — International jurisdiction and internal territorial jurisdiction — Applicable provisions — Montreal Convention — Article 33 — Regulation (EU) No 1215/2012 — Article 7(1) — Interaction between those provisions)
I. Introduction
1. The request for a preliminary ruling, which has been made by the Tribunale ordinario di Roma (District Court, Rome, Italy), principally concerns the interpretation of Article 33 of the Convention for the Unification of Certain Rules for International Carriage by Air (2) (‘the Montreal Convention’), a provision that determines which court has jurisdiction to hear an action for damages against an air carrier falling within the scope of that instrument.
2. In essence, the referring court asks the Court about the interaction between the convention and Regulation (EU) No 1215/2012, (3) which governs, inter alia, jurisdiction in the area in which it applies, (4) where an action seeking compensation of various kinds is brought by air passengers.
3. The reference has been made in the context of a cross-border dispute between an airline and a number of passengers, in relation to sums claimed by those passengers both by way of standardised compensation under Regulation (EC) No 261/2004, (5) and by way of individualised compensation for damage caused to them by the cancellation of an outward and a return flight, both operated by that airline.
4. First of all, it will be necessary for the Court to determine whether, in such circumstances, territorial jurisdiction is governed by Article 33 of the Montreal Convention or Article 7(1) of Regulation No 1215/2012 (or both). For the reasons and under the circumstances set out below, I take the view that those two instruments should be applied distributively, according to the nature of the relevant head of claim.
5. Secondly, if Article 33 of the Montreal convention is held to be applicable in such a situation, as I will propose, it will be necessary for the Court to decide whether that provision is to be interpreted as governing the allocation of jurisdiction merely at international level, as between the States concerned, or also at internal level, as between the courts of a given State. I favour the second of those interpretations.
6. Thirdly, in the event of the Court holding that Article 33 of the Montreal convention does not also designate the court having jurisdiction at internal level, the Court is asked to consider whether that provision applies exclusively, or in conjunction with Article 7(1) of Regulation No 1215/2012, for the purposes of identifying that court. In view of my proposed answers to the first two questions referred, I consider it unnecessary to decide the third question, which is raised only in the alternative.
II. Legal background
A. The Montreal Convention
7. The Montreal Convention entered into force, so far as the European Union is concerned, on 28 June 2004.
8. The preamble to the convention states, in the third recital, that the States which are parties to that convention ‘recognis[e] the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution’. It goes on to state, in the fifth recital, that ‘that collective State action for further harmonization and codification of certain rules governing international carriage by air … is the most adequate means of achieving an equitable balance of interests’.
9. Within Chapter III of the convention, headed ‘Liability of the Carrier and Extent of Compensation for Damage’, Article 19, headed ‘Delay’, provides that ‘the carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures’.
10. Also within Chapter III, Article 33, headed ‘Jurisdiction’ provides in paragraphs 1 and 4 that:
‘1. 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.
…
4. Questions of procedure shall be governed by the law of the court seized of the case.’
B. EU law
1. Regulation No 261/2004
11. Within Article 1 of Regulation No 261/2004, headed ‘Subject’, Article 1(1)(b) and (c) state that that regulation ‘establishes, under the conditions specified herein, minimum rights for passengers when [inter alia] their flight is cancelled [or] delayed’.
12. Article 5 of the regulation, headed ‘Cancellation’, provides in paragraphs 1 and 2 that:
‘1. In case of cancellation of a flight, the passengers concerned shall:
(a) be offered assistance by the operating air carrier in accordance with Article 8; and
(b) be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in [the] event of re-routing when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1)(b) and 9(1)(c); and
(c) have the right to compensation by the operating air carrier in accordance with Article 7 … .
2. When passengers are informed of the cancellation, an explanation shall be given concerning possible alternative transport.’
13. Article 7 of that regulation, headed ‘Right to compensation’, provides in paragraph 1(a) that ‘passengers shall receive compensation amounting to … EUR 250 for all flights of 1 500 kilometres or less’, in the circumstances set out in that article.
14. Article 9, headed ‘Right to care’, provides in paragraphs 1 and 2 that:
‘1. Where reference is made to this Article, passengers shall be offered free of charge:
(a) meals and refreshments in a reasonable relation to the waiting time;
(b) hotel accommodation in cases
– where a stay of one or more nights becomes necessary, or
– where a stay additional to that intended by the passenger becomes necessary;
(c) transport between the airport and place of accommodation (hotel or other).
2. In addition, passengers shall be offered free of charge two telephone calls, telex or fax messages, or e-mails.’
15. Article 12 of Regulation No 261/2004, headed ‘Further compensation’, provides in paragraph 1 that ‘this Regulation shall apply without prejudice to a passenger’s rights to further compensation. The compensation granted under this Regulation may be deducted from such compensation’.
2. Regulation No 1215/2012
16. Pursuant to Article 66(1) of Regulation No 1215/2012, it is that regulation which applies ratione temporis to the dispute in the main proceedings, which were brought before the referring court after 10 January 2015. (6)
17. Within Chapter II of Regulation No 1215/2012, headed ‘Jurisdiction’, and more specifically Section 2 of that chapter, headed ‘Special jurisdiction’, Article 7(1)(a) and (b) provide that ‘a person domiciled in a Member State may be sued in another Member State:
(1) (a) 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 the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;
18. Within Section 4 of the same chapter, headed ‘Jurisdiction over consumer contracts’, Article 17(3) provides that that section ‘shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation’.
19. Within Chapter VII of the regulation, headed ‘Relations with other instruments’, Article 67 provides that ‘this Regulation shall not prejudice the application of provisions governing jurisdiction and the recognition and enforcement of judgments in specific matters which are contained in instruments of the Union or in national legislation harmonised pursuant to such instruments’.
20. Also within Chapter VII, Article 71(1) provides that ‘this Regulation shall not affect any conventions to which the Member States are parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments’.
III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
21. Mr Adriano Guaitoli, Mr Alessandro Celano Tomassoni, Mr Mario Giuli, Ms Concepción Casan Rodriguez, Ms Antonia Cirilli, Ms Lucia Cortini and Ms Patrizia Padroni (‘Mr Guaitoli and Others’) purchased air tickets for return flights between Fiumicino (Italy) and Corfu (Greece) operated by easyJet Airline Company Ltd (‘easyJet’), an air carrier established in Luton (United Kingdom).
22. The outward flight, which had been scheduled for 20:20 on 4 August 2015, was repeatedly delayed and ultimately cancelled, to be rescheduled for 16:45 the next day. While they were waiting, they were not offered alternative flights with another airline, or meals, or any other assistance; nor were they offered any form of reimbursement or compensation, despite making a formal request of easyJet to that effect.
23. The return flight, which had been scheduled for 23:25 on 14 August 2015, was also subject to a significant delay, the exact duration of which is not specified in the order for reference.
24. On 28 June 2016, Mr Guaitoli and Others brought an action against easyJet before the Tribunale ordinario di Roma (Rome District Court), which is the court of their place of residence, seeking an order, pursuant to Articles 5, 7, 9 and 12 of Regulation No 261/2004, for lump-sum compensation, reimbursement of the additional expenses incurred, and compensation for their further loss and damage, both material and non-material. (7)
25. In its defence, easyJet has raised two pleas of lack of jurisdiction, as preliminary points. The Tribunale ordinario di Roma (Rome District Court) dismissed the first of those pleas, which related to the amount in dispute. As regards the second, which related to territorial jurisdiction, that court held that it was necessary to determine which rules were applicable, with particular regard to the interaction between Article 33 of the Montreal Convention and Article 5 of Regulation No 44/2001 (now Article 7 of Regulation No 1215/2012), and what scope remained, if any, for national rules of jurisdiction to apply, bearing in mind that while the applicants to the main proceedings were resident within its own jurisdiction, Fiumicino airport is situated within the jurisdiction of the Tribunale di Civitavecchia (Civitavecchia District Court, Italy).
26. Against that background, by decision of 26 February 2018, received at the Court on 26 March 2018, the Tribunale ordinario di Roma (Rome District Court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) If a party whose flight has been delayed or cancelled jointly requests, not only the standardised and lump-sum compensation provided for by Articles 5, 7 and 9 of Regulation No 261/2004, but also the further compensation referred to in Article 12 of the Regulation, must Article 33 of the Montreal Convention apply, or is ‘jurisdiction’ (both international and local) governed by Article 5 of Regulation No 44/2001?
(2) In the first hypothesis in question 1, must Article 33 of the Montreal Convention be interpreted to the effect that it governs only the allocation of jurisdiction among the States Parties, or as meaning that it also governs local jurisdiction within the individual State?
(3) In the first hypothesis in question 2, is the application of Article 33 of the Montreal Convention ‘exclusive’, precluding application of Article 5 of Regulation No 44/2001, or may the two provisions be applied jointly, so as to determine directly both the jurisdiction of the State and the local jurisdiction of its courts?’
27. Written observations were submitted to the Court by Mr Guaitoli and Others, by easyJet, by the Italian Government and by the European Commission. No hearing was held.
IV. Analysis
A. Preliminary observations
28. Before turning to my substantive consideration of the three questions referred by the national court, as reproduced above, (8) it may be helpful to set out certain considerations which emerge from the case-law of the Court of Justice and are relevant to all of those questions.
29. First of all, as regards the interpretation of the Montreal Convention, I note that the provisions of that convention are an integral part of the legal order of the Union, (9) such that the Court has jurisdiction to rule on its interpretation, in accordance with the rules of international law to which the Union is subject, in particular Article 31 of the Vienna convention, (10) pursuant to which a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. (11) Furthermore, having regard to the object of the Montreal Convention, which is to unify the rules for international carriage by air, the Court has already held that a concept which it employs but does not define ‘must be given a uniform and autonomous interpretation, notwithstanding the different meanings given to that concept in the domestic laws of the States Parties to that convention’. (12)
30. Secondly, I emphasise that although the national court refers to Article 5 of Regulation No 44/2001 throughout its decision, and particularly in its first and third questions, the appropriate reference is to the equivalent provisions of Article 7 of Regulation No 1215/2012, (13) which is applicable ratione temporis to the present case. (14) In that regard, it is well established that, in order to respond to the national court in terms which will assist it, the Court may consider provisions of EU law which that court has not mentioned in the wording of the questions referred. (15)
31. Those general observations having been made, I will now consider, in turn, each of the questions referred in the present case.
B. The relationship between the Montreal Convention and Regulation No 1215/2012, as regards an action for damages falling within the scope of both the convention and Regulation No 261/2004 (first question)
1. The subject matter of the first question referred
32. In essence, the first question asks the Court to rule on whether, where a passenger whose international flight has been delayed or cancelled seeks not only the lump-sum compensation and reimbursement of expenses provided for in Articles 5, 7 and 9 of Regulation No 261/2004, but also the compensation for further damage contemplated by Article 12 of that regulation, (16) the court having jurisdiction ratione loci is to be identified by reference to Article 33 of the Montreal Convention, or to Article 7 of Regulation No 1215/2012, or to both.
33. Putting forward a joint answer to the three questions, Mr Guaitoli and Others submit that in both Article 33 of the Montreal Convention and Article 7 of Regulation No 1215/2012, the connecting factors referred to serve only to determine the Member State in which the dispute is to be determined, and not the court which has territorial jurisdiction. (17) By contrast, easyJet maintains that regard must be had to Article 33 of the convention whenever a passenger seeks compensation for damage resulting from a delayed flight on the basis of that convention. In the submission of the Italian Government, the question whether the court before which the matter has been brought has jurisdiction falls to be determined by reference to Regulation No 1215/2012 in so far as the claim is for compensation under Regulation No 261/2004, and by reference to the Montreal Convention in so far it is for compensation for damage flowing from breach of the relevant contract of carriage. Similarly, the Commission considers that jurisdiction is governed by Article 7(1)(b) of Regulation No 1215/2012, in so far as the action seeks compensation under Regulation No 261/2004, and also by Article 33 of the Montreal Convention, in so far as it seeks further compensation for damage resulting from a delay and falling within the scope of that convention.
34. In my view the latter submissions are correct. Before explaining how, in my view, the jurisdictional rules contained in Regulation No 1215/2012 and in Article 33 of the Montreal Convention ought to be applied distributively, in proceedings such as those before the referring court, I think it is necessary to retrace the relationship between the substantive rules of law governing the liability of air carriers contained, respectively, in Regulation No 261/2004 and in the Montreal Convention. In my view, it is the combination of the systems of liability laid down by those two instruments which gives rise, as a corollary, to the need to apply the rules of jurisdiction contained in Regulation No 1215/2012 in parallel with those contained in Article 33 of the convention.
2. The two systems of air carrier liability applicable to a dispute such as that in the main proceedings
35. As has been pointed out by most of the interested parties lodging observations in the present case, it is well established in the Court’s case-law that there are two systems of air carrier liability to passengers, the first based on Regulation No 261/2004 and the second on the Montreal Convention, both of which are capable of applying to the dispute in the main proceedings.
36. I note that the Court has repeatedly held that the rights based respectively on the provisions of Regulation No 261/2004 and those of the Montreal Convention relate to ‘different regulatory frameworks’. It has emphasised that Regulation No 261/2004 establishes a system of standardised and immediate compensation (18) in respect of damage consisting in the inconvenience caused by flight delays and cancellations, operating at an earlier stage than the system provided for by the Montreal Convention and therefore independently of that system. (19)
37. In contrast to the provisions of Regulation No 261/2004, Article 19 et seq. of the Montreal Convention lay down the conditions under which, in the event of a delayed flight, the passengers concerned can bring proceedings seeking redress on an individual basis, by way of actions for damages. This requires a case-by-case assessment of the extent of the damage caused, and thus can only be the subject of after-the-event, individualised compensation. (20)
38. Article 1 of Regulation No 261/2004 makes clear that the rights it establishes in favour of air passengers are minimum rights. Moreover, Article 12 provides that that regulation applies without prejudice to a passenger’s rights to further compensation under other instruments, (21) and that the compensation granted under the regulation may be deducted from such compensation. (22) It is thus open to the national court to order the air carrier to compensate damage arising, for passengers, from breach of the contract of carriage by air on a legal basis other than Regulation No 261/2004, notably under the Montreal Convention or national law. (23) The Court has held that, as is the case in relation to the provisions of Chapter III of the convention, the damage which can be the subject of ‘further’ compensation under Article 12 of the regulation includes both material and non-material damage. (24)
39. With specific regard to the present case, it is well established that a passenger’s right to lump-sum, standardised compensation in respect of a cancelled or significantly delayed flight, under Articles 5 to 7 of Regulation No 261/2004, (25) is independent of the individual redress for the damage caused by a delayed flight which can be sought under Article 19 of the Montreal Convention. (26)
40. Furthermore, the Court has held that where an air carrier has failed to bear costs in compliance with the obligations imposed on it by Articles 5(1)(b) and 9 of Regulation No 261/2004, a passenger may seek compensation under those provisions, and that such a claim, seeking the equivalent of compliance with the original obligations, is not to be regarded as a claim for damages representing compensation, by way of individualised redress, for damage resulting from the cancellation of the relevant flight, under the conditions laid down by the Montreal Convention. Air passengers’ claims based on the rights conferred on them by that Regulation No 261/2004 cannot be considered as falling within ‘further’ compensation within the meaning of Article 12 of that regulation. (27)
41. Having thus set out the essential points arising from the case-law as regards the relationship between the substantive rules contained, respectively, in Regulation No 261/2004 and in the Montreal Convention, I now turn to the question of which provisions apply for the purposes of identifying the court which has jurisdiction to examine the various heads of claim raised in the main proceedings, which have the particularity of falling within both Regulation No 261/2004 and the Montreal Convention.
3. The rules of jurisdiction which apply having regard to the basis of the various heads of claim alleging liability on the part of the air carrier
42. For the reasons set out below, I consider that in the case of a mixed action for damages, such as the action in the main proceedings, the court having jurisdiction is to be identified by reference to the relevant provisions of Regulation No 1215/2012, as regards the heads of claim governed by Regulation No 261/2004, and by reference to Article 33 of the Montreal Convention, as regards the heads of claim governed by that convention. I will go on to address the practical consequences of my proposed interpretation.
(a) The rules of jurisdiction applicable to heads of claim falling within Regulation No 261/2004
43. The Court has previously held that ‘since the rights based respectively on the provisions of Regulation No 261/2004 and of the Montreal Convention fall within different regulatory frameworks, the rules on international jurisdiction provided for in that Convention do not apply to applications made on the basis of Regulation No 261/2004 alone, which must be examined in the light of Regulation No 44/2001’. (28) The wording I have italicised might be taken to suggest, as the referring court notes, that this analysis applies only to actions based exclusively on the provisions of Regulation No 261/2004.
44. However, the considerations set out in that case-law are, in my opinion, relevant mutatis mutandis to a dispute such as that in the main proceedings, in which the applicants’ claims are, simultaneously, based partly on the provisions of Regulation No 261/2004 and partly on other rules of law. Here also, the fact that there are different regulatory frameworks means that there are different rules of international jurisdiction applicable to the rights deriving, respectively, from Regulation No 261/2004 and the Montreal Convention. (29)
45. It follows, in my view, that the international jurisdiction of a court of a Member State to rule on the first set of claims depends on the relevant provisions of Regulation No 44/2001 (or rather, in the present case, those of Regulation No 1215/2012, which is applicable ratione temporis), and not on Article 33 of the convention. In other words, I take the view that, as regards the heads of claim seeking lump-sum compensation and reimbursement of expenses on the legal basis of Regulation No 261/2004, the court seised must determine whether it has jurisdiction by reference to Regulation No 1215/2012, and more specifically, as regards the dispute in the main proceedings, by reference to Articles 4 and 7 of that regulation. (30)
46. I note that under Article 4(1) of Regulation No 1215/2012, a person domiciled in a Member State may be sued in the courts of that Member State. However, Article 7(1) of that regulation lays down a rule of special jurisdiction as regards contractual matters, under which the applicant may invoke a different connecting factor, namely the place of performance of the obligation on which the claim is based, which is presumed, under Article 7(1)(b), to be the place where the services concerned were or should have been provided. As the referring court notes in its first question, the Court has held that that rule determines both international and local jurisdiction. (31) With specific regard to international air transport services, it has interpreted that provision as meaning that the applicant may choose to sue in the court which has territorial jurisdiction over the place of departure of the aircraft, or that which has territorial jurisdiction over the place of arrival, as those places are agreed in the relevant contract. (32)
(b) The rules of jurisdiction applicable to heads of claim falling within the Montreal Convention
47. Like easyJet, the Italian Government and the Commission, I consider that as regards actions based on the Montreal Convention — or more precisely, in the present case, heads of claim falling within the scope of the Montreal Convention — the applicable rules of jurisdiction are those set out in Article 33 of that convention. (33)
48. The application of Article 33 of the Montreal Convention is not precluded by the provisions of Regulation No 1215/2012 which determine its relationship with other instruments governing jurisdiction within the European Union, namely Article 67 and Article 71(1). Those provisions permit the application of rules governing jurisdiction in specific matters — undoubtedly including air transport — which are contained in instruments of the Union, or indeed in conventions to which Member States are parties. The Montreal Convention now forms an integral part of the legal order of the European Union, (34) and even has primacy, in areas within its scope, over secondary EU legislation such as Regulation No 261/2004. (35)
49. I therefore consider that, where part of an action falls within the provisions of the Montreal Convention — and more specifically Article 19 of that convention, relating to compensation for damage caused by delayed flights — (36) the court seised must determine whether it has jurisdiction to rule on that part by reference to Article 33 of the convention, under which an action against the air carrier may be brought, at the option of the applicant, in the territory of one of the States parties, either before the court of the place where the air carrier is domiciled (or a place to which it has a similar connection), (37) or before the court of the place of destination of the relevant flight.
(c) The practical implications of my proposed interpretation
50. It follows from the foregoing that in my view, in the context of an action for damages against an air carrier such as that in the main proceedings, the court seised must assess whether it has jurisdiction on a distributive basis, by reference to, first, Article 4(1) and Article 7(1) of Regulation No 1215/2012, read together, as regards heads of claim based on the provisions of Regulation No 261/2004, and by reference to, second, Article 33 of the Montreal Convention, as regards heads of claim falling within Article 19 of that convention.
51. I emphasise that in my view, if the Court were to adopt my proposed interpretation, the risk of jurisdiction to determine a hybrid action of this kind being fragmented between courts of different States would, in practical terms, be relatively limited. It can be seen that Regulation No 1215/2012 and the Montreal Convention have two jurisdictional criteria in common, namely the place of domicile of the defendant and the place of destination of the flight, (38) and that a passenger bringing an action against an air carrier has a free choice between those criteria, (39) which means that all the heads of claim can be dealt with by one and the same court. There is, moreover, scope for the rules on related actions contained in Article 30 of Regulation No 1215/2012 to operate, thus enabling multiple or concurrent actions to be avoided.
52. In the light of all those considerations, my proposed answer to the first question is that where air passengers bring an action before a court of a Member State, seeking both to enforce the lump-sum, standardised rights arising under Articles 5, 7, 9 and 12 of Regulation No 261/2004, and also to obtain compensation for further damage falling within the scope of the Montreal Convention, the court seised must determine whether it has jurisdiction, as regards the first head of claim, by reference to the relevant provisions of Regulation No 1215/2012 and, as regards the second head of claim, by reference to Article 33 of the convention.
C. Whether Article 33(1) of the Montreal Convention governs both international jurisdiction and internal territorial jurisdiction (second question)
1. The subject matter of the second question
53. The Court is asked to address the second question in the event that it answers the first question to the effect, as I have proposed above, that Article 33 of the Montreal Convention applies to determine jurisdiction, in circumstances such as those of the dispute in the main proceedings, as regards those heads of claim seeking individualised compensation for damage which are covered by that convention, and not by Regulation No 261/2004.
54. In essence, in the event that it does answer the first question to that effect, the Court is asked to rule, for the first time, on whether Article 33 of the convention, and more specifically Article 33(1) thereof, (40) is intended to allocate jurisdiction ratione loci to hear a cross-border dispute solely at international level, or in other words as between the States parties to the convention, or also at internal level, or in other words as between the courts of each of those States.
55. The Tribunale ordinario di Roma (Rome District Court) expresses doubt as to the interpretation of Article 33 of the Montreal Convention apparently reached by the Corte suprema di cassazione (Court of Cassation, Italy), (41) according to which that provision merely designates the State party whose legal system has jurisdiction to hear a cross-border dispute, and does not affect the operation of the national rules which apply in that State for the purposes of determining which of its courts has jurisdiction.
56. The referring court states that if that is the correct interpretation, under the Italian procedural rules it would itself be the court with jurisdiction to hear the dispute in the main proceedings. (42) On the other hand, if Article 33 is to be interpreted as directly determining which court has jurisdiction within the State party, but otherwise without prejudice to national procedural law, the Tribunale di Civitavecchia (Civitavecchia District Court) would have jurisdiction, as the airport of departure of the outward flight, and arrival of the return flight, is located within the jurisdiction of that court.
57. The tension between those two approaches, which can be seen in the case-law of other States parties to the Montreal Convention, (43) is also apparent in the observations lodged in the present case. Mr Guaitoli and Others and the Italian Government maintain that Article 33 of the Montreal Convention merely governs the allocation of jurisdiction as between the signatory States, (44) while easyJet and the Commission submit that the criteria laid down in that provision also apply for the purposes of determining internal territorial jurisdiction within each State. For the reasons set out below, which are in accordance with the rules of interpretation referred to above, (45) I take the latter view.
2. Literal interpretation
58. As regards the wording of Article 33 of the Montreal Convention, I would point out that the only language versions of that instrument which are authentic are those described as such, of which three (namely the English, Spanish and French versions) are in official languages of the European Union. (46) It follows that the submissions advanced, in the present case, with specific reference to the Italian translation of Article 33, cannot be decisive.
59. I also note that the concepts employed by the Montreal Convention are to be given a uniform and autonomous interpretation, and accordingly that the Court, when interpreting those concepts for the purposes of a preliminary ruling, must have regard not to the different meanings which may have been given to them in the domestic laws of the States parties to the convention, but to the rules of interpretation of general international law, which are binding on it. (47)
60. In the present case, it seems to me that, contrary to what the Italian Government submits, and what the Corte suprema di cassazione (Supreme Court of Cassation) seems to have held, (48) the heading to Article 33 of the Montreal Convention, at least in the English, Spanish and French versions, (49) does not indicate that the drafters of that provision intended to confine the scope of the rules it contains to the allocation of jurisdiction as between States parties. On the contrary, I consider, in particular, that the expression ‘juridiction compétente’, used in the French language version, does not refer to the allocation of competence to a State, but rather to a ‘juridiction’, a term usually employed in that language to refer generically to any type of body exercising judicial power.
61. My view is supported by the wording of Article 33(1), (50) at least in the English, Spanish and French versions. I note, as the referring court, easyJet and the Commission have done, that Article 33 allocates jurisdiction to a specific court step by step. It refers, first of all, to ‘the territory of one of the States Parties’, (51) and then specifies which of the courts sitting in that territory may declare itself to have jurisdiction ratione loci, using the singular expression ‘the court’, (52) and not a plural expression, on two occasions, (53) in setting out the different connecting factors by reference to which the applicant can bring an action for damages. Each of those factors, moreover, refers to a specific place. (54)
62. The use of this kind of terminology is not inconsequential, as has been observed in the similar context of the Brussels Convention, (55) which also contains rules of jurisdiction applicable to civil proceedings. Wording of this kind is intended to enable the applicant to bring the matter directly before one of the courts so designated, without having to consider the internal rules of geographical jurisdiction in force in the relevant State, and even if those rules do not assign jurisdiction to that forum. (56)
63. The Court has, furthermore, interpreted jurisdictional provisions of EU law which are worded in a manner analogous to the provision referred to in the question presently under consideration, in that they lay down a connecting factor in relation to a court, referred to in the singular, as ‘determining both international and local jurisdiction’ and ‘seek[ing] to unify the rules of conflict of jurisdiction and, accordingly, to designate the court having jurisdiction directly, without reference to the domestic rules of the Member States’. (57) The same must apply, in my view, to the present case. (58)
64. I therefore conclude, agreeing in this regard with the referring court, easyJet and the Commission, that if, as Mr Guaitoli and Others and the Italian Government submit, Article 33(1) of the Montreal Convention had been intended simply to allocate jurisdiction to the courts of a State party taken as a whole, leaving the designated State free to determine, through its internal rules, which court had territorial jurisdiction, the drafters of that provision would undoubtedly have chosen a form of words which was more appropriate for that purpose.
3. Purposive interpretation
65. Having regard to the stated objectives of the Montreal Convention, and those apparent in Article 33(1) thereof, I consider that those objectives would be better served by my proposed interpretation of that provision than by the contrary interpretation.
66. The Court has repeatedly held that it is apparent from the preamble to the Montreal Convention (59) that the primary objectives of the States parties were not only to ‘[ensure] the protection of the interests of consumers in international carriage by air’, but also to ‘further [harmonise and codify] certain rules governing [such carriage, so as to achieve] an equitable balance of interests’, particularly the interests of air carriers and of passengers. (60)
67. In the present case, in my view, if Article 33(1) of the convention were interpreted in such a way that the rules it contains merely allocated jurisdiction to the courts of one of the States parties, and not directly to a specific court, that would not adequately reflect the desire for further unification which was expressed by the authors of that instrument, (61) the corollary of which is that, as far as possible, reference to the national laws of the various States is to be avoided. In addition, I consider that such an interpretation would not go far enough in terms of protecting the interests of consumers, while balancing them equitably with those of air carriers.
68. In this regard, I would point out that rules directly designating the court with territorial jurisdiction are generally adopted with a view to facilitating the implementation of such rules, both by the State authorities and by the parties to the relevant proceedings, and ensuring that there is a close connecting factor between the dispute and the court with jurisdiction to resolve it. (62) Furthermore, I consider that rules of this kind ensure, in the interests of both applicants and defendants, a greater degree of predictability and legal certainty than would exist if all the courts of a State potentially had jurisdiction, and the parties therefore had to consider domestic law in order to identify which of those courts had territorial jurisdiction. (63) In my view it is reasonable to consider that that is what the drafters of Article 33(1) were seeking to achieve, in choosing the form of words set out above. It follows that the practical effect of the provision could, in my opinion, be undermined, if it were interpreted in a manner contrary to that which I propose.
4. Contextual interpretation
69. In my view, there is no conflict between my proposed interpretation of Article 33(1) of the Montreal Convention and the context of that provision.
70. In that regard, I note that the Italian Government relies on the case-law referred to above, (64) in which the Corte suprema di cassazione (Court of Cassation) held that Article 33(1) governed the allocation of jurisdiction only as between the States parties to the Montreal Convention, on the basis (amongst other things) of the content of Article 33(4), which provides that ‘questions of procedure shall be governed by the law of the court seised of the case’. (65) The Italian Government reads this last provision as leaving it to the States parties, as an aspect of their procedural autonomy, to regulate all procedural matters which are not expressly dealt with by the convention, and accordingly submits that the internal procedural rules apply for the purposes of determining which national court has territorial jurisdiction.
71. In the same vein, Mr Guaitoli and Others submit, in essence, that if the drafters of Article 33 of the Montreal Convention had intended to regulate the internal territorial jurisdiction of each of the States parties, they would have had to include provisions allocating jurisdiction on the basis of the amount in dispute, which they did not do.
72. I consider however that those submissions must be rejected. I share the view expressed by the referring court and easyJet, that on a correct interpretation of Article 33(1), read in conjunction with Article 33(4), the former provision is expressly intended to govern jurisdiction ratione loci, not merely as between the States parties, but also as between their courts, without prejudice, as regards other procedural matters, to the application of the rules of law in force in the State in which the court seised is situated.
73. In other words, I take the view that the reference to national law in Article 33(4) of the Montreal Convention is to be understood as residual, in the sense that it relates to procedural rules which are distinct from the unified connecting factors governing jurisdiction ratione loci and set out in Article 33(1). The further references to the law of the court seised which are made in Articles 35 and 45 of the convention (66) support that view.
74. The autonomy thus left to the States parties to the convention as regards procedural matters leaves them free, in my opinion, to determine the extent of the geographical and substantive jurisdiction of the courts sitting within their territory. (67) That autonomy must however be subject, in my view, to the need to prevent the objectives of the convention being undermined, or its provisions deprived of practical effect, by the operation of rules of the lex fori. (68)
75. Consequently, my proposed answer to the second question referred is that Article 33(1) of the Montreal Convention is to be interpreted, as regards actions for damages falling within the scope of that convention, (69) as governing not only the allocation of jurisdiction as between the States Parties to the convention, but also the allocation of territorial jurisdiction as between the courts of each of those States.
D. Whether the Montreal Convention applies exclusively, or in conjunction with Regulation No 1215/2012 (third question)
76. The Court is asked to address the third question in the event that it holds, contrary to my proposal above, that Article 33 of the Montreal Convention, which is applicable where the action brought is within the scope of that convention, is intended to govern the allocation of jurisdiction only as between the States parties to the convention.
77. The Tribunale ordinario di Roma (Rome District Court) essentially asks whether, in the event that the Court did so hold, Article 33 of the convention would apply exclusively, so as to prevent the operation of Article 7 of Regulation No 1215/2012, or whether the two provisions would apply simultaneously, directly determining both whether the courts of a given State had jurisdiction, and whether a particular court within that State had territorial jurisdiction.
78. The referring court states that if the Montreal Convention applies exclusively, with internal territorial jurisdiction being governed by national legislation, as the Corte suprema di cassazione (Court of Cassation) held, (70) then it has jurisdiction to resolve the dispute in the main proceedings. Conversely, if the convention applies in conjunction with the regulation, the former allocating jurisdiction as between States, and the latter supplementing it by allocating jurisdiction internally, then the Tribunale di Civitavecchia (Civitavecchia District Court) has jurisdiction.
79. However, in the light of what I have put forward in my proposed answers to the first two questions, as regards the interaction between the Montreal Convention and Regulation No 1215/2012, I do not consider it necessary to answer the third question, which is now otiose, or indeed to consider it any further.
V. Conclusion
80. In the light of the foregoing considerations, I suggest that the Court should answer the questions referred for a preliminary ruling by the Tribunale ordinario di Roma (Rome District Court, Italy) as follows:
(1) Where air passengers bring an action before a court of a Member State seeking, on the one hand, to enforce the lump-sum, standardised rights arising under Articles 5, 7, 9 and 12 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, and also seeking, on the other hand, to obtain compensation for further damage falling within the scope of the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on 28 May 1999 and approved on behalf of the European Community by Council Decision 2001/539/EC of 5 April 2001, the Member State court seised must determine whether it has jurisdiction, as regards the first head of claim, by reference to the relevant provisions of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and, as regards the second head of claim, by reference to Article 33 of the convention referred to above.
(2) Article 33(1) of the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on 28 May 1999 is to be interpreted, as regards actions for damages falling within the scope of that convention, as governing not only the allocation of jurisdiction as between the States Parties to the convention, but also the allocation of territorial jurisdiction as between the courts of each of those States.