Language of document : ECLI:EU:C:2019:931

Provisional text

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 7 November 2019 (1)

Case C215/18

Libuše Králová

v

Primera Air Scandinavia

(Request for a preliminary ruling from the Obvodní soud pro Prahu 8 (District Court, Prague 8, Czech Republic))

(Reference for a preliminary ruling — Jurisdiction in civil and commercial matters — Regulation (EC) No 44/2001 — Article 5(1) — Jurisdiction in matters relating to contracts — Section 4 of Chapter II — Jurisdiction over consumer contracts — Scope — Regulation (EC) No 261/2004 — Articles 6 and 7 — Carriage by air — Compensation and assistance to passengers — Long flight delay — Contract for carriage combined with accommodation concluded between the passenger and a tour organiser — Action for compensation brought against the air carrier which is not a party to that contract — Package travel — Directive 90/314/EEC)






I.      Introduction

1.        The request for a preliminary ruling from the Obvodní soud pro Prahu 8 (District Court, Prague 8, Czech Republic) was submitted in the context of an action for compensation brought, under Regulation (EC) No 261/2004, (2) by a passenger domiciled within that court’s jurisdiction, against an airline established in Denmark, on account of the long delay of a flight operated by that airline, but sold to that passenger, in conjunction with accommodation, by a Czech travel agency.

2.        In essence, the Court is asked, in the first place, whether such an action comes within the rules of jurisdiction applicable in matters relating to a contract laid down in Article 5(1) of Regulation (EC) No 44/2001, (3) even though the plaintiff did not conclude a contract with the defendant and although the flight concerned was part of a group of services acquired from a third party. For the reasons set out in this Opinion, I consider that this question must be answered in the affirmative.

3.        In the second place, the referring court asks whether the provisions of Section 4 of Chapter II of Regulation No 44/2001, which consists in Articles 15 to 17 of that regulation, must be interpreted as meaning that the rules of jurisdiction applicable in relation to consumer contracts set out in that section cover an action such as that in the main proceedings. In my view this question should be answered in the negative.

4.        In the third place, the Court will be required to determine whether, when a flight has been subject to a long delay, a passenger who purchased that flight from a travel agent in the context of a package, within the meaning of Directive 90/314/EEC, (4) may rely on rights based on Articles 6 and 7 of Regulation No 261/2004 as against the operating air carrier. I consider that this point must be answered in the affirmative.

II.    Legal framework

A.      Regulation No 44/2001

5.        Article 5(1) of Regulation No 44/2001, which appears in Section 2 of Chapter II, entitled ‘Special jurisdiction’, is worded as follows:

‘A person domiciled in a Member State may, in another Member State, be sued:

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 sale of goods …,

–        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,

(c)      if subparagraph (b) does not apply then subparagraph (a) applies’.

6.        Article 15 of Regulation No 44/2001, which is in Section 4 of Chapter II, entitled ‘Jurisdiction over consumer contracts’, provides:

‘1.      In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if:

(a)      it is a contract for the sale of goods on instalment credit terms; or

(b)      it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

(c)      in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.

3.      This 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.’

7.        Article 16(1), which is in Section 4, states that ‘a consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled’.

8.        Article 17, which appears at the end of Section 4, determines the conditions in which the provisions of that section may be departed from by agreements on the choice of forum entered into with a consumer.

9.        Regulation No 44/2001 is applicable ratione temporis in the present case, although it was repealed by Regulation (EU) No 1215/2012, (5) since the latter regulation is to apply only to legal proceedings instituted on or after 10 January 2015, in accordance with Article 66(1), and the action in the main proceedings was brought before that date. (6)

10.      Furthermore, Regulation No 44/2001 is applicable ratione loci in the present case, since its provisions were not initially binding on the Kingdom of Denmark, but have now applied to relations between the European Union and that Member State since 1 July 2007, under an agreement entered into for that purpose. (7)

B.      Regulation No 261/2004

11.      Article 1(1)(c) of Regulation No 261/2004 provides that that regulation ‘establishes, under the conditions specified [therein], minimum rights for passengers when [in particular] their flight is delayed’.

12.      Article 2(b) of that regulation defines the concept of ‘operating air carrier’ as ‘an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger’.

13.      Article 3 of that regulation, entitled ‘Scope’, states, in paragraphs 5 and 6:

‘5.      This Regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2. Where an operating air carrier which has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger.

6.      This Regulation shall not affect the rights of passengers under Directive [90/314]. This Regulation shall not apply in cases where a package tour is cancelled for reasons other than cancellation of the flight.’

14.      As concerns the reference to Directive 90/314 in the latter provision, it should be made clear that that directive was repealed, on 1 July 2018, by Directive (EU) 2015/2302, (8) in accordance with Article 29 of the latter directive. However, the former directive is applicable in the present case, in view of the date of the facts of the main proceedings.

15.      Articles 6 and 7 of Regulation No 261/2004 provide, respectively, for the right to assistance provided by the operating air carrier where a flight is subject to a long delay and the right to compensation at a standard rate in the conditions set out in those articles.

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

16.      Ms Libuše Králová, who is domiciled in Prague (Czech Republic), entered into a contract with FIRO-tour a.s., a travel agency established in the Czech Republic, which included the supply of a flight between Prague and Keflavik (Iceland), scheduled to take place on 25 April 2013 at 12.40, and also accommodation. The air carriage was supplied by Primera Air Scandinavia, a company having its registered office in Denmark. The flight was delayed by 4 hours by reference to the scheduled departure time.

17.      On 24 July 2013, Ms Králová requested Primera Air Scandinavia to compensate her for the harm she had sustained owing to the flight delay. The air carrier rejected her request, claiming that the delay was attributable to exceptional and unforeseeable circumstances.

18.      On 10 October 2013, Ms Králová brought an action before the Obvodní soud pro Prahu 8 (District Court, Prague 8), claiming that Primera Air Scandinavia should be ordered to pay her a lump sum of EUR 400 as compensation. In support of her claims, she relied, as regards jurisdiction, on Article 16(1) of Regulation No 44/2001 and, as regards the substance, on Articles 6(1) and 7 of Regulation No 261/2004 as interpreted by the Court in the judgment in Sturgeon and Others. (9)

19.      By decision of 1 April 2014, that court declared that it lacked jurisdiction, on the grounds, in particular, that Primera Air Scandinavia was established in the territory of the Kingdom of Denmark, to which Regulation No 44/2001 does not apply, and that, moreover, the provisions of that regulation cannot form the basis of the international jurisdiction of the Czech courts, since the parties to the proceedings appeared not to be bound by a contractual relationship or, in any event, by a contract for a combination of travel and accommodation in accordance with Article 15(3) of that regulation.

20.      By decision of 4 August 2014, the Městský soud v Praze (Municipal Court, Prague, Czech Republic) dismissed Ms Králová’s appeal. It held that Regulation No 44/2001 must be applied in the case before it, as it had been binding on the Kingdom of Denmark since 1 July 2007, (10) but could not serve as the basis of the jurisdiction of the Czech courts.

21.      On 15 September 2015, on appeal on a point of law by Ms Králová, the Nejvyšší soud (Supreme Court, Czech Republic) set aside the decisions at first instance and on appeal, then remitted the case to the Obvodní soud pro Prahu 8 (District Court, Prague 8), requesting it, more specifically, to determine whether Primera Air Scandinavia could be sued before the Czech courts having regard to Article 5(1), 15 and 16 of Regulation No 44/2001, including, if appropriate, making a reference to the Court of Justice for a preliminary ruling. (11)

22.      In that context, by decision of 25 January 2018, received at the Court Registry on 26 March 2018, the Obvodní soud pro Prahu 8 (District Court, Prague 8) decided to stay proceedings and to submit the following questions to the Court for a preliminary ruling:

‘(1)      Did a contractual relationship exist between the plaintiff [in the main proceedings] and the defendant [in the main proceedings] for the purposes of Article 5(1) of Regulation [No 44/2001], even though no contract had been concluded between the applicant and the defendant and the flight was part of a package of services provided on the basis of a contract between the applicant and a third party (travel agency)?

(2)      Can that relationship be qualified as a consumer relationship in accordance with Section 4 [of Chapter II], [which consists in] Articles 15 to 17 of Regulation [No 44/2001]?

(3)      Does the defendant [in the main proceedings] have legal capacity to be sued in an action seeking satisfaction of the claims arising from Regulation [No 261/2004]?’

23.      Written observations were lodged before the Court by the Czech Government and by the European Commission. No hearing was held.

IV.    Analysis

24.      In essence, the referring court asks whether, in circumstances such as those of the dispute in the main proceedings, namely where an action for compensation brought by a passenger on the basis of Regulation No 261/2004 (12) relates to a flight which was negotiated as an element of a group of services sold by a third party, it is appropriate to apply the rules of jurisdiction, based on the place of performance of the contractual obligation, laid down in Article 5(1)(b) of Regulation No 44/2001 (A), or rather the rule, favourable to the consumer, laid down in Article 16(1) of that regulation (B). (13) Furthermore, if its own international jurisdiction might actually be based on one of those provisions, the referring court wonders whether such a passenger could, for the purpose of enforcing the rights arising under Regulation No 261/2004, sue the operating air carrier that was responsible for fulfilling those rights, (14) even though the flight at issue was sold through the intermediary of a travel agency, and in the context of a package within the meaning of Directive 90/314 (15) (C). (16)

A.      The applicability of the rules of jurisdiction laid down in Article 5(1) of Regulation No 44/2001 (first question)

25.      By its first question, the referring court asks the Court, in essence, to interpret Article 5(1) of Regulation No 44/2001, in order to determine whether the special rules of jurisdiction ‘in matters relating to a contract’ set out in that provision (17) are to apply to an action for compensation such as that in the main proceedings, brought on the basis of Regulation No 261/2004 by a passenger against the operating air carrier, (18) although no contract was entered into between that plaintiff and that defendant and although the flight in question formed part of a package of services supplied under a contract entered into between the plaintiff and a travel agency.

26.      The Czech Government and the Commission both propose that this question should be answered in the affirmative, which is also my view, for the following reasons.

27.      On that subject, I recall that Article 5(1)(a) of Regulation No 44/2001 states that ‘in matters relating to a contract’, a person domiciled in a Member State may, in another Member State, be sued in ‘the courts for the place of performance of the obligation in question’. Under the second indent of Article 5(1)(b), concerning the ‘provision of services’, the place of performance of the obligation that serves as the basis for the claim is defined as being, except where there is an agreement to the contrary, ‘the place in a Member State where, under the contract, the services were provided or should have been provided’. In accordance with Article 5(1)(c), the default linking factor provided for in Article 5(1)(a) is to apply where the contractual relationship at issue does not constitute a ‘provision of services’ within the meaning of Article 5(1)(b). (19)

28.      In the present case, it is apparent from the grounds of its order that the referring court wonders, more specifically, whether its own jurisdiction to resolve the dispute in the main proceedings might result from the specific linking factor set out in the second indent of Article 5(1)(b) of Regulation No 44/2001, a criterion which has already been declared to be applicable in the case of a claim for compensation brought by a passenger against an airline on the basis of both the contract concluded between them and Regulation No 261/2004. (20) The Court is required here to rule on whether that approach is also valid in circumstances such as those of the present case, where the other party to the contract with the passenger concerned was not the operating air carrier but a travel agency that sold her the flight at issue as part of a combination of travel and accommodation.

29.      Like the Czech Government and the Commission, I observe that the Court has already ruled, in the joined cases that gave rise to the judgment in flightright and Others, (21) on a situation comparable to that of the present case. That judgment also concerned actions for compensation, based on Regulation No 261/2004, for long delays in flights provided by an operating air carrier which had not entered into contracts with the passengers concerned, since they had bought their airline tickets from other airlines, respectively, before bringing an action against the carrier that operated the segment of the connecting flight that included that delay at issue. (22)

30.      In that context, the Court has held, first, that the concept of ‘matters relating to a contract’, within the meaning of Article 5(1)(a) of Regulation No 44/2001, covers claims brought by passengers for compensation for the long delay of a connecting flight, made under Regulation No 261/2004, against an operating air carrier with which those passengers do not have a contract, having regard to the grounds referred to above. (23)

31.      First of all, the Court observed that the concept of ‘matters relating to a contract’ must be interpreted not by reference to national law but autonomously, and that all obligations arising under that contract, non-performance of which is relied on to support the claimant’s action, must be considered to come within that concept. It then confirmed that the application of the rule of special jurisdiction laid down in Article 5(1)(a) does not require the conclusion of a contract between the parties to the proceedings, but nonetheless presupposes the existence of a legal obligation freely consented to by one person in respect of another and on which the claimant’s action is based, so that that rule of jurisdiction is based on the cause of action, not the identity of the parties. (24) Last, it stated that an operating air carrier such as that referred to in the second sentence of Article 3(5) of Regulation No 261/2004 — namely a carrier which has not entered into a contract with the passenger concerned, but which fulfils obligations arising under that contract and is therefore considered to act on behalf of the person who entered into that contract for carriage with that passenger — must be regarded as fulfilling the freely consented obligations vis-à-vis the contracting partner of that passenger, which arise under the contract for carriage by air concluded with that passenger.

32.      Furthermore, in the same judgment in flightright and Others the Court provided an interpretation of the second indent of Article 5(1)(b) of Regulation No 44/2001 relating to the identification of the place of performance of the air carriage services in a situation such as that forming the subject matter of the disputes in the main proceedings, namely the delay of a connecting flight operated by two airlines, one of which was not in a contractual relationship with the passengers concerned. (25) On that subject, the Court set out a number of general considerations that to my mind are also relevant in the present case.

33.      Thus, the Court referred to the importance of a sufficiently close linking factor between the court and the material elements of any dispute coming under Article 5(1) of Regulation No 44/2001, being aware that that link is required by all the rules of special jurisdiction set out in that provision and that such an objective of proximity is confirmed by recital 12 of that regulation. (26) It also ascertained that the interpretation adopted did indeed fulfil the principle of predictability, set out in recital 11 of that regulation, which those rules are designed to guarantee, in order to allow both the applicant and the defendant to identify the competent court without difficulty. Furthermore, it pointed out that, in the context of commercial contracts freely entered into by air carriers, such as those at issue, an operating air carrier which has not concluded a contract with the passenger is considered to act on behalf of the air carrier with which the passenger concerned has contractual relations.

34.      I am of the view that the considerations and interpretations thus adopted can be transposed, mutatis mutandis, to the present case, (27) so that an action such as that brought by the plaintiff in the main proceedings comes within the scope of Article 5(1) of Regulation No 44/2001.

35.      In fact, in the case that gave rise to the judgment in flightright and Others, as in the present case, the action for compensation for a long flight delay is based on obligations arising under the initial contract entered into by the passenger concerned, improper performance of which forms the basis of the passenger’s claim. Here, too, the defendant is an operating air carrier which is not the person that entered into the contract in question with that passenger, in this instance the travel agency, but which freely consented vis-à-vis that person to provide the flight and therefore to assume the obligations arising under Regulation No 261/2004 on behalf of that person, (28) on which the action is based. I consider it irrelevant, in that regard, that the flight at issue was sold in conjunction with accommodation, that is to say, that it was included in ‘package travel’ within the meaning of Directive 90/314, (29) since that detail does not in any way alter the contractual nature of the legal obligations on which the applicant relies or the cause of her action. An action such as that in the main proceedings is therefore indeed covered, in my view, by the concept of ‘matters relating to a contract’ within the meaning of Article 5(1) of Regulation No 44/2001. (30)

36.      More specifically, in my view an action of that type comes under the linking factor specific to supplies of services which appears in the second indent of Article 5(1)(b), namely the place of supply of the air carriage service in question. In the light of the Court’s case-law on the interpretation of that provision in the context of claims for compensation brought by passengers on the basis of Regulation No 261/2004, (31) I consider that jurisdiction to hear and determine an action such as that in the main proceedings lies with the court in the place of performance of the delayed flight, conceived as being, at the applicant’s choice, the place of departure or the place of arrival of the aircraft specified in the contract between the passenger concerned and the travel agency, (32) it being noted that in practice one or the other of those places frequently coincides with the place where the passenger is domiciled.

37.      I am of the view that, as the Court made clear in the judgment in flightright and Others, notwithstanding the fact that the operating air carrier is not in a contractual relationship with the passenger, the interpretation proposed here meets the objectives of foreseeability and proximity envisaged by all the rules on special jurisdiction laid down in Article 5(1) of Regulation No 44/2001, in so far as that carrier agreed to fulfil the obligations arising under Regulation No 261/2004 on behalf of that party to the contract. Thus, in this instance, provided that the air carrier established in Denmark freely consented to provide the flight sold by the Czech travel agency, it could not fail to be aware of both the place of departure (in the Czech Republic) and the place of arrival (in Iceland) of the aircraft and that it must therefore have reasonably expected, like the passenger concerned, that any dispute would be brought before a Czech court, which, moreover, is geographically well placed to settle such a dispute.

38.      Consequently, in my view, the answer to the first question should be that Article 5(1) of Regulation No 44/2001 must be interpreted as meaning that it covers an action for compensation brought by a passenger against the operating air carrier, even though those parties had not entered into a contract between them and though that flight formed part of a package of services supplied under a contract entered into between the plaintiff and a third party.

B.      The applicability of the rules of jurisdiction laid down in Section 4 of Chapter II of Regulation No 44/2001 (second question)

39.      By its second question, the referring court asks the Court, in essence, whether the legal relationship between a passenger and the operating air carrier, in circumstances such as those of the present case, falls within the scope of Section 4 of Chapter II of Regulation No 44/2001, which consists in Articles 15 to 17 of that regulation, which lay down rules on special jurisdiction ‘over consumer contracts’.

40.      The Czech Government proposes that the answer to the question submitted should be that the relationship at issue in the main proceedings cannot be classified as a consumer contract within the meaning of Article 15(1) of Regulation No 44/2001. The Commission, on the other hand, is of the view that the provisions of Section 4 of Chapter II of that regulation should be applied in that context. For my part, I consider, on the contrary, that an action such as that pending before the referring court is not covered by the rules of jurisdiction set out in said Section 4.

41.      First of all, I observe that the referring court wonders, more particularly, whether its own jurisdiction to resolve the dispute in the main proceedings may be based on Article 16(1) of that regulation, which allows a consumer to sue the other party to the contract either in the courts of the place in which he or she is domiciled or in the courts of the Member State in which the defendant is domiciled.

42.      It follows from the Court’s case-law that the jurisdiction of the courts for the place where the consumer is domiciled which is provided for in Article 16(1) of Regulation No 44/2001 is subject to the three conditions for the application of that provision set out in Article 15(1) of that regulation being met. Those cumulative conditions are, first, that a party to a contract is a consumer who has acted in a context that may be regarded as being outside his or her trade or profession; second, that the contract between such a consumer and a person exercising a professional activity has actually been concluded; and, third, that such a contract falls within one of the categories referred to in Article 15(1)(a) to (c) of that regulation. (33)

43.      In the present case, the doubts expressed by the referring court do not relate directly to those three conditions, the satisfaction of which does not appear to be disputed in the present case, at least with respect to the contract concluded between the plaintiff in the main proceedings and the travel agency. (34) However, the referring court is faced with uncertainty arising from the fact that the professional being sued in the main proceedings is not the person with whom the consumer concerned concluded the contract under which the legal obligations forming the subject matter of those proceedings arise.

44.      Next, it will be recalled that, under Article 15(3) of Regulation No 44/2001, Section 4 of Chapter II of that regulation is not to apply to a contract of transport other than ‘a contract which, for an inclusive price, provides for a combination of travel and accommodation’, while that expression must be interpreted in the light of the concept of ‘package travel’ within the meaning of Directive 90/314. (35) Consequently, an air passenger who has simply purchased a ticket for a flight cannot rely on the rules of special jurisdiction over consumer contracts contained in Section 4, unlike a passenger who has acquired a ticket for a flight in the context of package travel. (36)

45.      In the present case, the delayed flight that gave rise to the action for compensation brought by the passenger concerned was purchased in conjunction with accommodation, so that it is clear that if such an action had been brought against the travel agency that sold the airline ticket for that flight, the provisions of Section 4 would have been applicable. On the other hand, it is not obvious that that should also be the case where, as in the main proceedings, an action is brought solely against the third party that is the operating air carrier.

46.      In that context, the referring court wonders essentially, in my view, whether the jurisdiction that would have arisen under the package travel contract concluded between the consumer and the travel agency if the latter had been the person sued might be extended to the operating air carrier, (37) so that the latter could, like the travel agency with respect to which it consented to provide the flight at issue, be sued before the courts of the place where the consumer is domiciled. (38)

47.      The Commission is in favour of such a broad approach, which is also maintained by Ms Králová in the main proceedings. According to the Commission, the exception provided for in Article 15(3) in fine of Regulation No 44/2001, and therefore Section 4 of Chapter II of that regulation, should apply in the main proceedings, since the obligations that exist, first, between the consumer and the travel agency under their contract for travel and accommodation and, second, between that travel agency and the air carrier under their commercial agreement, are inextricably linked, even though those obligations involve different contracting parties. I do not share that point of view, in the light of the following considerations.

48.      In the first place, the wording of all the provisions in Section 4 of Chapter II of Regulation No 44/2001, entitled ‘Jurisdiction over consumer contracts’, encourages me, as it does the Czech Government, to opt for the opposite theory to that supported by the Commission. In those provisions, reference is made to the ‘contract concluded by … the consumer’, to the ‘party’ with whom a ‘consumer enters into a contract’, to ‘the other party to a contract’ entered into by a consumer, or to the agreements as to the court entered into ‘by the consumer and the other party to the contract’, (39) and those expressions lead me to consider that not only the actual conclusion of a consumer contract (40) but also the identity of the parties to the procedure (41) are determinative for the application of the rules of jurisdiction set out in that section, unlike the position as regards Article 5(1) of that regulation, on special jurisdiction ‘in matters relating to a contract’. (42) In the same vein, the Court has already held that ‘the rules on jurisdiction laid down, as regards consumer contracts, in Article 16(1) of [Regulation No 44/2001] apply, in accordance with the wording of that article, only to an action brought by a consumer against the other party to the contract, which necessarily implies that a contract has been concluded by the consumer with the professional concerned’. (43)

49.      In circumstances such as those of the main proceedings, it cannot be considered, for the purposes of the application of Section 4 of Chapter II of Regulation No 44/2001, that the defendant, namely the operating air carrier, is the professional with which the consumer concluded the relevant contract. The Czech Government submits, correctly in my view, that even if the action brought by a passenger against the carrier in such circumstances must be considered to come within ‘matters relating to a contract’ within the meaning of Article 5(1) of that regulation, (44) that does not in itself mean that there is a contractual relationship within the meaning of Section 4 of Chapter II between those parties. That dissociation results from the fact that the scope and the conditions for the implementation of the rules of jurisdiction set out in Article 5(1) differ from those of the rules of jurisdiction set out in Section 4, given that the latter rules constitute a derogation from the former rules. (45)

50.      In the second place, I observe that the plaintiff in the main proceedings nonetheless claimed before the referring court that, in the judgment in Maletic, the Court interpreted the concept of ‘the other party to a contract’ in Article 16(1) of Regulation No 44/2001 as meaning, ‘in circumstances such as those at issue in the main proceedings, that it also covers the contracting partner of the operator with which the consumer concluded that contract and which has its registered office in the Member State in which the consumer is domiciled’. (46) The Commission also finds support in that judgment for the interpretation which it proposes in the present case, but in my view it is wrong to do so.

51.      Like the referring court and the Czech Government, I observe that the circumstances of the case that gave rise to the judgment in Maletic differed in many respects from those at issue in the present case. (47) In a subsequent judgment, (48) the Court made clear that the interpretation provided in the judgment in Maletic ‘rested on specific circumstances in which the consumer was from the outset contractually linked, inseparably, to two contracting partners’ (49) and took into account the fact that ‘the consequence of excluding the contracting partner established in the consumer’s Member State from the scope of Article 16 would have been that the court hearing the case against the two contracting partners jointly would have had jurisdiction only in respect of the operator established in another Member State’. (50) The Court added that ‘such an interpretation cannot be applied to the circumstances of the case in the main proceedings, in which there is absolutely no conclusion of any contract with the professional concerned’. (51)

52.      That negative conclusion must also apply, in my view, in the present case, since, on the one hand, the consumer concerned here was not contractually linked from the outset, inseparably, to two contracting partners, but concluded a contract solely with a travel agency and, on the other hand, the action in the main proceedings does not seek to have such contracting partners held jointly and severally liable, but only to establish the liability of a professional that did not conclude a contract with that consumer and, moreover, is established in a different Member State from the consumer.

53.      In the third place, it should be emphasised that the interpretation which I propose is not contrary to the objectives of Regulation No 44/2001 to which the Commission refers.

54.      As regards the risk of concurrent proceedings, and therefore of irreconcilable judgments, (52) which Regulation No 44/2001 is generally intended to prevent, as stated in recital 15 and as the Court has pointed out, notably in the judgment in Maletic, I shall merely state that that risk is non-existent in an action such as that in the main proceedings and that preventing that risk is in any event not the essential purpose of Section 4 of Chapter II of that regulation.

55.      As regards consumer protection, which Section 4 of Chapter II of Regulation No 44/2001 is specifically intended to ensure, by laying down rules of jurisdiction that are favourable to the interests of that weaker party, as indicated in recital 13 of that regulation, (53) I note that the Commission refers expressly to that purpose in support of its argument, (54) incorrectly in my view.

56.      In fact, the Court has repeatedly held that the provisions set out in Section 4 must be interpreted strictly, and cannot therefore give rise to an interpretation going beyond the cases expressly envisaged therein, since those provisions constitute derogations, (55) with respect not only to the general rule of jurisdiction set out in Article 2(1) of that regulation, (56) but also to the rules on special jurisdiction in matters relating to contracts set out in Article 5(1) of that regulation. (57)

57.      In addition, the Court has already held, with regard to Article 16(1) of Regulation No 44/2001, that ‘the condition that there must be a contract concluded between the consumer and the professional concerned makes it possible to ensure that the attribution of jurisdiction is predictable, which is one of the objectives of [that regulation], as is apparent from recital 11 [thereof]’. (58) Thus, the fact that the professional may, on the basis of Article 16(1), be sued before the courts for the place where the weak party — the consumer — is domiciled, is counterbalanced by the requirement of a contract concluded between them, which is the source of that predictability.

58.      It follows, in my view, that it is not appropriate to apply the protective rules of jurisdiction set out in Section 4 of Chapter II of that regulation, and in particular in Article 16(1) thereof, in circumstances such as those of the action being heard by the referring court, namely where the consumer concerned did not conclude a contract with the professional being sued in an action for compensation.

59.      I therefore propose that the answer to the second question should be that the provisions of Section 4 of Chapter II of Regulation No 44/2001, consisting in Articles 15 to 17 of that regulation, must be interpreted as meaning that they are not applicable to such an action.

C.      The possibility for a passenger whose flight, purchased as part of a package covered by Directive 90/314, has been delayed to sue the operating air carrier on the basis of Articles 6 and 7 of Regulation No 261/2004 (third question)

60.      By its third question, the referring court asks the Court, in essence, whether an operating air carrier can be sued by a passenger for the purposes of the exercise of the rights arising under Regulation No 261/2004, even though those parties have not concluded a contract between them and the flight in question was purchased from a travel agency as part of package travel falling within the scope of Directive 90/314.

61.      Although the terms which they employ and the provisions on which they rely differ, both the Czech Government (59) and the Commission (60) propose that this question be answered in the affirmative. I am also of the view that the question should be answered in the affirmative, in the light of the following elements.

62.      First of all, I observe that the questions formulated by the referring court relate, basically, to two problems.

63.      One consists in determining whether the obligations arising under Regulation No 261/2004 are placed on the operating air carrier that provided the flight at issue on behalf of the person who concluded a contract with the passenger (61) even where, as in the present case, that person sold the passenger a package of travel services and not merely air travel. In that regard, I shall merely state that that is indeed the case in my view and refer, in that regard, to the considerations on the lessons to be learnt from the judgment in flightright and Others which I set out under the first question. (62) Likewise, the Commission, relying on that judgment, (63) considers that, in that context, the passenger may sue the carrier who fulfils obligations freely consented to with respect to the travel agency that sold the flight forming part of package travel.

64.      The other problem raised by the referring court, which to my mind raises more difficulties, concerns the interplay between the rights arising under Regulation No 261/2004 and those arising under Directive 90/314, (64) in circumstances such as those of the main proceedings.

65.      A similar request recently formed the subject matter of the case that gave rise to the judgment in Aegean Airlines, (65) which concerned, more specifically, the right to reimbursement of the cost of an airline ticket by the operating air carrier in the event of the cancellation of a flight, in particular when the tour organiser (66) is insolvent. In that judgment, the Court interpreted ‘Article 8(2) of Regulation No 261/2004 [(67)] as meaning that a passenger who, under Directive 90/314, has the right to hold his tour organiser liable for reimbursement of the cost of his air ticket, can no longer claim reimbursement of that ticket from the air carrier, on the basis of that regulation, even where the tour organiser is financially incapable of reimbursing the cost of the ticket and has not taken any measures to guarantee such reimbursement’. (68) That interpretation was unavoidable, in my view, for the reasons which I set out in my Opinion in that case. (69)

66.      I would emphasise that, in the present case, even if the question submitted is directed at all the rights conferred on passengers by Regulation No 261/2004, it is apparent from the order for reference (70) that the action in the main proceedings is based specifically on Articles 6 and 7, which set out, respectively, the conditions on which, when a flight is subject to a long delay, the operating air carrier must offer the passenger assistance in accordance with the procedures set out in Articles 8 and 9, and lump-sum compensation, in accordance with the interpretation given in the judgment in Sturgeon and Others, where the harm caused by a flight delayed for at least 3 hours, as in the present case, was treated in the same way as the harm caused by a cancelled flight. I shall therefore express my views, in this Opinion, essentially on the interpretation of Articles 6 and 7 in regard to such circumstances, but nonetheless in the light of supplementary provisions.

67.      As regards the wording and the general scheme of the relevant provisions of Regulation No 261/2004, I observe that that regulation contains certain provisions which relate, generally, to the interplay between that instrument and Directive 90/314. Thus, recital 5 of that regulation states that the protection which the regulation provides should apply even to passengers on flights forming part of package tours, which are covered by that directive. Furthermore, Article 3(6) of that regulation provides that that regulation is not to affect the rights of passengers under Directive 90/314. (71)

68.      As for Article 8(2) of Regulation No 261/2004, which is interpreted in the judgment in Aegean Airlines, it specifically states that the right to reimbursement of the costs of the airline ticket provided for in paragraph 1(a) of that article (72) is also to apply to passengers whose flights form part of a package, except for the case where such right arises under Directive 90/314, even if only potentially. (73) In that judgment, after referring to the travaux préparatoires of Regulation No 261/2004 (74) and recalling the terms of Article 3(6) of that regulation, the Court held that Article 8(2) implies that the rights to reimbursement of the cost of the ticket, pursuant to that regulation and Directive 90/314 (75) respectively, are not cumulative and that if they were, the passengers concerned would receive unjustified overcompensation, which would be to the detriment of the operating air carrier, which, in that case, would risk having to assume part of the liability of the tour organiser towards its customers in accordance with the contract which it has entered into with them. (76)

69.      Articles 6 and 7 of Regulation No 261/2004, on the other hand, the interpretation of which is sought in the present case as being applicable to a claim for lump-sum compensation for the long delay of a flight such as that in the main proceedings, contains no express reservation in relation to the provisions of Directive 90/314 equivalent to that set out in Article 8(2) in fine of that regulation, which is confined to claims for reimbursement of the costs of an airline ticket. (77)

70.      To my mind, it follows clearly from the differences in the wording of those provisions that the right to compensation provided for in Article 7 of Regulation No 261/2004, which covers both cancelled flights and flights delayed by at least 3 hours, (78) is indeed applicable to a passenger whose flight forms part of a package, independently of the rights to reimbursement or to compensation conferred by Directive 90/314, for non-performance or improper performance of the services forming the subject matter of the package. (79) In other words, such a passenger may in my view rely, with respect to the operating air carrier, on the right to lump-sum compensation on the basis of Regulation No 261/2004 (80) and, with respect to the person who sold him or her the package travel, on the right to specific compensation on the basis of Directive 90/314, for the difference in value between the services offered in the travel agreement and those actually supplied.

71.      In the present case, the harm caused by the long delay of a flight, such as that alleged by the plaintiff in the main proceedings, cannot itself come within the latter type of compensation, in my view, even if in all likelihood the time of the flight concerned was stated in the contract concluded between the passenger and the travel agency. I consider that the obligation to make reparation placed on the tour organiser by Directive 90/314 could, on the contrary, follow on from such a delay if it were established that the delay caused an incorrect supply of other services forming the subject matter of that package. However, as I stated in the context of Aegean Airlines, (81) it must be ensured that overcompensation does not result from the application of the rights to compensation offered by Regulation No 261/2004 in conjunction with those offered by Directive 90/314, so that, in my view, the amounts payable under that regulation should if necessary be deducted from those payable under that directive. (82)

72.      As regards the historical context of the provisions that are relevant here, as the Court observed in the judgment in Aegean Airlines, and in accordance with the observations which I set out in my Opinion in that case, (83) I would emphasise that it is clear from the travaux préparatoires of Regulation No 261/2004 that the EU legislature intended not to exclude from the scope of that regulation passengers whose flight forms part of a package tour, but to allow them to benefit from the rights granted by that regulation, while maintaining the adequate protection scheme which had previously been put in place for those passengers by Directive 90/314. In particular, the right to flat-rate compensation arising under Article 7 of Regulation No 261/2004 is clearly among the essential rights conferred on air passengers by that instrument, as against the operating air carrier, (84) and to my mind it has no equivalent in the scheme established by Directive 90/314, as against the tour organiser.

73.      Still from that temporal aspect, it is appropriate, in my view, to take into account the content of Directive 2015/2302, which has replaced Directive 90/314, (85) since that new directive on package travel contains provisions that indicate precisely the appropriate way in which that directive is to be combined with Regulation No 261/2004 with respect to the rights to compensation or to a reduction in prices which it establishes. (86) It follows, in particular, that the amounts granted under Directive 2015/2302, in case of the improper performance of the travel services, and those granted under other acts of EU law cited, including Regulation No 261/2004, should be deducted from each other to avoid overcompensation. Similar considerations are set out in a Commission communication on Regulation No 261/2004 which was published following the adoption of Directive 2015/2302. (87) To my mind, that means that the EU legislature has now expressly recognised that the right to compensation conferred by Article 7 of Regulation No 261/2004 is capable of applying to passengers whose flight forms part of package travel.

74.      As regards the objectives of the relevant provisions, (88) it is apparent from recital 1 of Regulation No 261/2004 that that regulation is aimed mainly at ensuring a high level of protection for passengers, although it also seeks to ensure a balance between the interests of the protected passengers and those of the air carriers.

75.      The fact that all categories of air passengers, including those whose flights form part of a package, are allowed to benefit from the right to compensation arising under Article 7 of Regulation No 261/2004 fully satisfies the principal objective of that regulation, (89) without affecting its secondary objective, since Article 13 of that regulation allows an operating air carrier which has paid compensation to a passenger under that regulation to seek compensation, in accordance with the applicable national law, from any person who has caused the carrier to fail to fulfil its obligations. (90)

76.      In addition, in practical terms, I observe that, unlike the difficulties caused by a claim for reimbursement of the costs of an airline ticket on the basis of Article 8 of Regulation No 261/2004, where the operating air carrier may find it difficult to identify the purchase price of the flight when it forms part of a package tour sold by a third party, (91) a claim for compensation based on Article 7 of that regulation, where the ticket was sold in the same circumstances, does not give rise to such problems in quantifying the price, since here the amount is payable to the passenger in the form of a lump sum and on the basis of uniform criteria set out in that article. (92)

77.      Last, I must make clear that I do not share the viewpoint of the Czech Government that an affirmative answer to the third question should be limited to cases where the delay is attributable to the operating air carrier, (93) on the ground that the latter must be able to avoid liability if it proves the existence of circumstances outside its control. (94) For my part, I consider that the point of that question is to determine whether such a carrier may be sued for compensation by passengers, and not the conditions in which it is able to escape the obligation to compensate the passenger which, in principle, is imposed on it under Regulation No 261/2004.

78.      Consequently, I consider that the answer to the third question should be that Articles 6 and 7 of Regulation No 261/2004 must be interpreted as meaning that a passenger on a flight delayed by 3 hours or more can claim compensation from the operating air carrier on the basis of that regulation, even though those parties had not concluded a contract and although that flight formed part of a package of services coming under Directive 90/314 to be supplied under a contract concluded between that passenger and a travel agency.

V.      Conclusion

79.      In the light of the foregoing considerations, I propose that the Court answer the questions for a preliminary ruling submitted by the Obvodní soud pro Prahu 8 (District Court, Prague 8, Czech Republic) as follows:

(1)      Article 5(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that it covers an action for compensation brought by a passenger against the operating air carrier, even though those parties had not entered into a contract between them and although that flight formed part of a package of services supplied under a contract entered into between the applicant and a third party.

(2)      The provisions of Section 4 of Chapter II of Regulation No 44/2001, consisting in Articles 15 to 17 of that regulation, must be interpreted as meaning that they are not applicable to such an action.

(3)      Articles 6 and 7 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 must be interpreted as meaning that a passenger on a flight delayed by 3 hours or more can claim compensation from the operating air carrier on the basis of that regulation, even though those parties had not concluded a contract and although that flight formed part of a package of services coming under Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours to be supplied under a contract concluded between that passenger and a travel agency.


1      Original language: French.


2      Regulation 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 (OJ 2004 L 46, p. 1).


3      Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).


4      Council Directive of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).


5      Regulation 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 (OJ 2012 L 351, p. 1).


6      See point 18 of this Opinion.


7      On that subject, see recital 21 and Article 1(3) of Regulation No 44/2001, and the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and enforcement of judgments in civil and commercial matters, signed in Brussels on 19 October 2005 (OJ 2005 L 299, p. 62). See, also, judgment of 12 September 2013, Sunico and Others (C‑49/12, EU:C:2013:545, paragraph 5).


8      Directive of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (OJ 2015 L 326, p. 1).


9      Judgment of 19 November 2009 (C‑402/07 and C‑432/07, EU:C:2009:716; ‘the judgment in Sturgeon and Others’), where the Court interpreted Articles 5, 6 and 7 of Regulation No 261/2004 as meaning that ‘passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation, where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours’ (paragraph 69). See, also, judgment of 11 July 2019, České aerolinie (C‑502/18, EU:C:2019:604, paragraph 19).


10      On that subject, see point 10 of this Opinion.


11      The referring court states that as the defendant has not entered an appearance before it after being sued, its own jurisdiction cannot be based on Article 24 of that regulation. Nor does its request for a preliminary ruling relate to that provision.


12      I would point out that the right on which the plaintiff in the main proceedings relies because of a flight delay, which is based on Articles 6 and 7 of Regulation No 261/2004 as interpreted by the Court in the judgment in Sturgeon and Others (paragraph 69), is a right to a standardised and lump-sum payment (see, in particular, judgment of 10 March 2016, Flight Refund, C‑94/14, EU:C:2016:148, paragraph 45). Nor is it disputed that in the present case the conditions relating to the scope of that regulation, which are set out in Article 3, are satisfied. Last, it is common ground, in the light of the Court’s case-law, that a claim for compensation lodged on the basis of Regulation No 261/2004 alone must be examined in the light of Regulation No 44/2001 (see, in particular, judgments of 10 March 2016, Flight Refund, C‑94/14, EU:C:2016:148, paragraph 46, and of 11 April 2019, Ryanair, C‑464/18, EU:C:2019:311, paragraph 24, and my Opinion in Guaitoli and Others, C‑213/18, EU:C:2019:524, points 32 and 35 et seq.).


13      Although, having regard to the answers proposed in this Opinion, I shall follow here the order of analysis preferred by the referring court, I nonetheless observe that the provisions of Regulation No 44/2001 on consumer contracts constitute a lex specialis, and must therefore in principle be examined before those relating to contractual matters in general (see, with respect to the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Decisions in Civil and Commercial Matters, judgment of 20 January 2005, Engler, C‑27/02, EU:C:2005:33, paragraphs 31 and 32).


14      If the Court gives a negative answer to the third question, the referring court should declare the claim lodged by the plaintiff in the main proceedings inadmissible, not on the ground of lack of jurisdiction, as would be the case with regard to the first two questions, but because the defendant lacked the capacity to be sued.


15      Article 2(1) of that directive defines ‘package’ as ‘the pre-arranged combination of not fewer than two of the following when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation:
(a)      transport;
(b)      accommodation;
(c)      other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package’.


16      The situation may prove even more complex when a passenger buys a journey on an internet site, since it is possible that his or her actual contracting partner is a different company, namely the real tour organiser. On the set of problems raised in that context, see, in particular, de Lambertye-Autrand, M.-C., ‘Contrats de prestations touristiques et for de protection des consommateurs dans l’espace judiciaire européen — Excursion sur les terres du for de protection du consommateur dans l’espace judiciaire européen en compagnie d’un voyageur de tourisme’, Mélanges offerts au professeur Pascale Bloch, Bruylant, Brussels, 2015, pp. 381-397.


17      These rules acquire a special nature in that they derogate from the general rule laid down in Article 2(1) of that regulation, according to which persons domiciled in a Member State should be sued in the courts of that Member State.


18      On the concept of ‘operating air carrier’, defined in Article 2(b) of Regulation No 261/2004, see judgments of 4 July 2018, Wirth and Others (C‑532/17, EU:C:2018:527, paragraphs 17 to 20), and of 11 July 2019, České aerolinie (C‑502/18, EU:C:2019:604, paragraph 23).


19      See, to that effect, judgments of 23 April 2009, Falco Privatstiftung and Rabitsch (C‑533/07, EU:C:2009:257, paragraph 40); of 19 December 2013, Corman-Collins (C‑9/12, EU:C:2013:860, paragraph 42); and of 14 July 2016, Granarolo (C‑196/15, EU:C:2016:559, paragraph 31).


20      The referring court makes reference, in particular, to the judgment of 9 July 2009, Rehder (C‑204/08, EU:C:2009:439, paragraph 47), where the Court held that the court having jurisdiction to deal with a claim for compensation founded on a contract with the operating air carrier and on Regulation No 261/2004 is that, at the applicant’s choice, which has territorial jurisdiction over the place of departure or place of arrival of the airport, as those places are agreed in that contract.


21      Judgment of 7 March 2018 (C‑274/16, C‑447/16 and C‑448/16, EU:C:2018:160; ‘the judgment in flightright and Others’). I note that that judgment was delivered after the date on which the order for reference in the present case was made.


22      It being noted that those passengers had booked air transport involving a connection with an airline, only one flight of which was operated by that airline, while an operating air carrier was responsible for the other flight (see judgment in flightright and Others, paragraphs 22 to 24, 37 and 64).


23      See judgment in flightright and Others (paragraphs 58 to 65 and the case-law cited).


24      Apart from the judgment in flightright and Others, see, with regard to Article 7(1)(a) of Regulation No 1215/2012, which is equivalent to Article 5(1)(a) of Regulation No 44/2001, judgments of 4 October 2018, Feniks (C‑337/17, EU:C:2018:805, paragraphs 38 to 39 and 48), and of 8 May 2019, Kerr (C‑25/18, EU:C:2019:376, paragraphs 20 and 23 to 26), where it is stated inter alia that in order for the rule of jurisdiction in question to apply it is essential to identify an obligation, since jurisdiction based on those provisions is determined by the place of performance of the obligation in question.


25      See judgment in flightright and Others (paragraphs 66 to 78 and the case-law cited). The second indent of Article 5(1)(b) is interpreted in that judgment as meaning that, in the case of a connecting flight, the ‘place of performance’ of that flight is the place of arrival of the second flight, where the carriage on both flights was operated by two different air carriers and the action for compensation for the long delay of that connecting flight under Regulation No 261/20004 is based on an irregularity which took place on the first of those flights, operated by the air carrier with which the passengers concerned do not have contractual relations.


26      That recital indicates that the EU legislature considered it appropriate that the court of the defendant’s domicile, which by principle has jurisdiction under Article 2 of that regulation, should be supplemented by other courts, whose jurisdiction is justified by the close link between the court and the action or by the desire to facilitate the sound administration of justice. See, also, judgments of 4 September 2014, Nickel & Goeldner Spedition (C‑157/13, EU:C:2014:2145, paragraphs 40 and 41), and of 4 October 2018, Feniks (C‑337/17, EU:C:2018:805, paragraphs 34 to 36).


27      Likewise, the Commission considers that the factual differences that exist between the present case and the joined cases that gave rise to the judgment in flightright and Others (in that here the plaintiff in the main proceedings, (i), bought her airline ticket through a travel agency, and not from an airline with which she entered into a contract and, (ii), exercised a right to compensation for a direct flight, and not for a flight with a stopover) do not hinder such a transposition.


28      In accordance with the provisions relating to the operating air carrier providing a flight on behalf of the contracting partner of the passenger concerned that are set out in Article 2(b), in fine, and the second sentence of Article 3(5) of that regulation.


29      Conversely, the fact that the contract entered into by the passenger concerned is for a combination of travel and accommodation is decisive in the case of the second and third questions referred (see, respectively, point 39 et seq. and point 60 et seq. of this Opinion).


30      See, also, to that effect, Opinion of Advocate General Bobek in Joined Cases flightright and Others (C‑274/16, C‑447/16 and C‑448/16, EU:C:2017:787, points 52 to 61).


31      See judgments of 9 July 2009, Rehder (C‑204/08, EU:C:2009:439, paragraphs 43 to 47); flightright and Others (paragraph 68); and of 11 April 2019, Ryanair (C‑464/18, EU:C:2019:311, paragraph 27). See, also, my Opinion in Guaitoli and Others (C‑213/18, EU:C:2019:524, point 46).


32      I note that, at the end of its written observations, the Czech Government proposes that the answer to the first question should be that Article 5(1)(a) of Regulation No 44/2001 must be interpreted as meaning that the concept of ‘matters relating to a contract’, within the meaning of that provision, covers an action such as that in the main proceedings, but it previously states that, in the main proceedings, the jurisdiction of the court may be based on the second indent of Article 5(1)(b), so that the place where the service in question was provided must prevail, namely, in accordance with the Court’s case-law, the place of departure or place of arrival of the aircraft.


33      See judgments of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraph 30); of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 23); and of 23 December 2015, Hobohm (C‑297/14, EU:C:2015:844, paragraphs 23 and 24).


34      In the latter regard, the abovementioned conditions seem to be satisfied in the present case, since, according to the information that emerges from the order for reference, first, Ms Králová acted as a private consumer, second, she entered into a contract with a travel agent, which, third, is established on the territory of the Member State of the consumer’s domicile, in accordance with Article 15(1)(c) of Regulation No 44/2001.


35      See, to that effect, judgment of 7 December 2010, Pammer and Hotel Alpenhof (C‑585/08 and C‑144/09, EU:C:2010:740, paragraphs 35 to 46).


36      See, also, concerning the equivalent provisions in Section 4 of Chapter II of Regulation No 1215/2012, judgment of 11 April 2019, Ryanair (C‑464/18, EU:C:2019:311, paragraph 29).


37      In that regard, I note that Article 6 of Regulation No 44/2001 expressly refers to cases in which derived jurisdiction may be raised against a defendant, but that none of those cases (namely where there are a number of defendants, where the action is on a warranty or guarantee, where there is a counter-claim or where the action relates to rights in rem in immovable property) arises here.


38      According to its order, the referring court wonders ‘whether the damage compensation proceedings [brought] against the air carrier retain the features of a consumer relationship according to the main contractual relationship [existing] between the plaintiff (consumer) and the service package provider, so that the consumer is able to raise all potential claims arising from that relationship with [just one court]’.


39      Expressions used in Article 15(1), Article 15(2), Article 16(1) and (2) and Article 17(3), respectively, of Regulation No 44/2001.


40      On that subject, see point 42 of this Opinion and the case-law cited, and also judgment of 14 May 2009, Ilsinger (C‑180/06, EU:C:2009:303, paragraph 52 et seq.).


41      This latter criterion is in my view also consistent with the objectives of those provisions (see, in particular, point 57 of this Opinion).


42      See point 31 of this Opinion and the case-law cited.


43      See judgments of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 32), and of 25 January 2018, Schrems (C‑498/16, EU:C:2018:37, paragraph 45), emphasis added.


44      For the reasons stated in point 25 et seq. of this Opinion.


45      Concerning the exceptional nature of the provisions of Section 4 and the consequences thereof, see point 56 of this Opinion.


46      Judgment of 14 November 2013 (C‑478/12, EU:C:2013:735, paragraph 32; ‘the judgment in Maletic’).


47      That case concerned a package holiday sold by a travel agency in Germany but organised by a company established in Austria, which gave rise to an action brought by a pair of consumers, whose place of domicile was in Austria, seeking payment from those suppliers, jointly and severally (see judgment in Maletic, paragraphs 11 to 14). The referring court notes, referring to the analysis made by the Nejvyšší soud (Supreme Court) in this instance, that, contrary to the former case, in the present case, first, the operator that was actually required to perform the service at issue was responsible not for the entire package holiday but only for the transport and, second, the plaintiff in the main proceedings sued only a single professional.


48      See judgment of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraph 33).


49      In fact, in the words of paragraph 29 of the judgment in Maletic, ‘even assuming that a single transaction, such as the one which led the [consumers] to book and pay for their package holiday on lastminute.com’s website, may be divided into two separate contractual relationships, first, with the online travel agency lastminute.com and, second, with the travel operator TUI, the second contractual relationship cannot be classified as “purely” domestic since it was inseparably linked to the first contractual relationship which was made through the travel agency situated in another Member State’.


50      Paragraphs 30 and 31 of the judgment in Maletic state that ‘the objectives set out in recitals 13 and 15 [of] Regulation No 44/2001 concerning the protection of the consumer as “the weaker party” to the contract and the aim to “minimise the possibility of concurrent proceedings … to ensure that irreconcilable judgments will not be given in two Member States”’ preclude ‘a solution which allows [the consumers concerned to pursue proceedings before different courts], by way of connected actions against two operators involved in the booking and the arrangements for the package holiday at issue’.


51      See judgment of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraphs 34 and 35), where the Court held that an applicant who, as a consumer, has acquired a bearer bond from a third party professional, without a contract having been concluded between that consumer and the issuer of the bond, may not invoke jurisdiction under Article 15(1) of Regulation No 44/2001 for the purposes of an action brought against the issuer of the bond.


52      In that regard, the Commission claims that, according to its own interpretation, when a consumer decides to bring proceedings against both the travel agency and other persons connected with the latter he or she may rely before a (single) court on the rights which he or she enjoys with regard to all the inseparably linked obligations.


53      On the precise grounds of that protection, see, in particular, judgments of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165, paragraph 33), and of 23 December 2015, Hobohm (C‑297/14, EU:C:2015:844, paragraph 31).


54      On that subject, the Commission notes that, at the time of entering into the contract with the travel agent, the plaintiff in the main proceedings was not necessarily aware that the travel agency used third parties in order to fulfil its obligations.


55      See, in particular, judgments of 23 December 2015, Hobohm (C‑297/14, EU:C:2015:844, paragraph 32), and of 25 January 2018, Schrems (C‑498/16, EU:C:2018:37, paragraphs 27 and 43).


56      I recall that Article 2(1), as a general principle, confers jurisdiction on the courts of the Member State in which the defendant is domiciled.


57      On the rules applicable to ‘matters relating to contracts’, see point 27 et seq. of this Opinion, relating to the first question. In that regard, I would emphasise that the affirmative answers which the Commission proposes be given to both the first question and the second question submitted in the present case seem to me to be contradictory, in that those answers suggest that an action such as that in the main proceedings comes within the specific scope of Article 5(1) and at the same time within that of Section 4, although the provisions of the latter section are in the nature of a lex specialis by reference to Article 5(1) (see also footnote 13 of this Opinion).


58      See judgments of 28 January 2015, Kolassa (C‑375/13, EU:C:2015:37, paragraphs 29 to 32), and of 25 January 2018, Schrems (C‑498/16, EU:C:2018:37, paragraphs 45 and 46).


59      The Czech Government considers that ‘[Regulation No 261/2004] must be interpreted as meaning that in the event of a delay of a flight forming part of package services, in accordance with [Directive 90/314], the air carrier has capacity to be sued for the purposes of the passenger’s claim for compensation under [that regulation], provided that the flight delay was attributable to the air carrier’ (emphasis added).


60      According to the Commission, ‘an operating air carrier, such as the defendant [in the main proceedings], which has not entered into a contract with a passenger, such as the plaintiff [in the main proceedings], has capacity to be sued for the purpose of the exercise of the rights arising under [Regulation No 261/2004]’ (emphasis added).


61      In application of Article 2(b), read with Article 3(5) of that regulation.


62      See point 34 et seq. of this Opinion.


63      More specifically, referring to paragraphs 62 and 63 of the judgment in flightright and Others.


64      I would make clear that that problem is the result not of the wording of the third question, but of the grounds of the order for reference relating to that question, where the referring court cites Directive 90/314, and in particular Article 5(1) of that directive, which provides that the organiser and/or retailer party to a package holiday contract are to be liable to the consumer for the proper performance of the obligation arising from the contract, even where those obligations are to be performed by other suppliers of services, such as, here, the operating air carrier, without prejudice to any action brought against those other suppliers of services.


65      Judgment of 10 July 2019 (C‑163/18, EU:C:2019:585; ‘the judgment in Aegean Airlines’).


66      Defined, in Article 2(2) of Directive 90/314, as ‘the person who, other than occasionally, organises packages and sells or offers them for sale, whether directly or through a retailer’.


67      Article 8 of Regulation No 261/2004, entitled ‘Right to reimbursement or re-routing’, states in paragraph 1(a) that ‘where reference is made to this Article, passengers shall be offered [inter alia] reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger's original travel plan, together with, when relevant, … a return flight to the first point of departure, at the earliest opportunity’. Article 8 provides, in paragraph 2, that ‘paragraph 1(a) shall also apply to passengers whose flights form part of a package, except for the right to reimbursement where such right arises under Directive 90/314/EEC’.


68      Judgment in Aegean Airlines (paragraph 44).


69      See my Opinion in Aegean Airlines (C‑163/18, EU:C:2019:275, points 35 to 67; ‘my Opinion in Aegean Airlines’).


70      See points 16 to 18 and footnote 9 of this Opinion.


71      Article 3(6) of Regulation No 261/2004 adds, as does recital 16, that ‘in cases where a package tour is cancelled for reasons other than the cancellation of the flight’, ‘[that] regulation shall not apply’. I note, however, that only the long delay of a flight forming part of a package tour, and not the cancellation of such a package tour, is at issue in the main proceedings in the present case.


72      The right to reimbursement of the costs of the airline ticket, which is available, in particular, to a passenger who has experienced a delay of at least 5 hours, in accordance with Article 6(1)(iii) of Regulation No 261/2004, which refers to Article 8(1)(a) of that regulation.


73      In the words of paragraph 31 of the judgment in Aegean Airlines, ‘it is also apparent from the clear wording of Article 8(2) that the mere existence of a right to reimbursement, arising under Directive 90/314, is sufficient to rule out the possibility for a passenger, whose flight forms part of a package tour, to be able to claim reimbursement of the cost of his ticket, pursuant to Regulation No 261/2004, from the operating air carrier’.


74      On that subject, see point 72 of this Opinion.


75      The first subparagraph of Article 4(6) of that directive provides that ‘if the consumer withdraws from the [package tour] contract … or if, for whatever cause, other than the fault of the consumer, the organiser cancels the package before the agreed date of departure, the consumer shall be entitled:      
(a)      either to take a substitute package of equivalent or higher quality where the organiser and/or retailer is able to offer him such a substitute. If the replacement package offered is of lower quality, the organiser shall refund the difference in price to the consumer;      
(b)      or to be repaid as soon as possible all sums paid by him under the contract’.


76      See judgment in Aegean Airlines (paragraphs 32 to 34), where it refers, on that subject, to my Opinion in Aegean Airlines (points 43 and 44 and also point 64).


77      On the exceptional nature of the reservation set out in Article 8(2), see also my Opinion in Aegean Airlines (points 50 and 51).


78      In accordance with the judgment in Sturgeon and Others (paragraph 69).


79      In the event of withdrawal from or annulment of the travel contract, apart from the right to reimbursement provided for in the first subparagraph of Article 4(6) of Directive 90/314 (cited in footnote 75 of this Opinion), a right to compensation for failure to perform the contract is provided for in the second subparagraph of Article 4(6). Where ‘a significant proportion of the services contracted for’ is not provided, a right to compensation for improper performance of the contract is provided for in Article 4(7), ‘for the difference between the services offered and those supplied’. The third and fourth subparagraphs of Article 5(2) of that directive refer to the limits that the Member States may allow to be placed on compensation for the damage resulting from failure to perform or the improper performance of the contract. See, also, recitals 16 to 19 of that directive.


80      On the system of standard, immediate compensation introduced by Regulation No 261/2004, see, in particular, my Opinion in Guaitoli and Others (C‑213/18, EU:C:2019:524, point 36 et seq. and the case-law cited), and judgment of 29 July 2019, Rusu (C‑354/18, EU:C:2019:637, paragraph 28).


81      See my Opinion in Aegean Airlines (points 63 and 64).


82      On the provisions dealing expressly with this topic which now appear in Directive 2015/2302, see point 73 of this Opinion. See, also, proposal presented by the Commission on 13 March 2013 for the amendment of Regulation No 261/2004 (COM (2013) 130 final), recital 6 and amended Article 3(6), which states, first, that Regulation No 261/2004 is also to apply to passengers transported according to package travel contracts but is not to affect the rights of passengers under Directive 90/314; second, that the passenger is to be entitled to present claims under that regulation and under that directive but may not in relation to the same facts cumulate rights under both legal acts if the rights safeguard the same interest or have the same objective; and, last, that that regulation is not to apply in cases where a package tour is cancelled or delayed for reasons other than cancellation or delay of the flight.


83      See judgment in Aegean Airlines (paragraph 32), and my Opinion in Aegean Airlines (points 40 to 46 and the sources cited).


84      In the statement of reasons for the Common Position adopted by the Council on 18 March 2003 (OJ 2003 C 125 E, p. 70) and in a communication from the Commission of 25 March 2003 (SEC(2003) 361 final, p. 3), it was made clear that laying all obligations to compensate and assist passengers arising from the future Regulation No 261/2004 on the operating air carrier constituted a simple and practical solution, as that carrier is usually best placed for ensuring that flights go according to plan and is present in the airports.


85      Even though it is not applicable in the present case (see point 14 of this Opinion).


86      In fact, recital 36 and Article 14(5) of Directive 2015/2302 state, first, that any right to compensation or price reduction under that directive is not to affect the rights of travellers under, inter alia, Regulation No 261/2004; second, that travellers are to be entitled to present claims under that directive and under that regulation; and, last, that compensation or price reduction granted under that directive and the compensation or price reduction granted under that regulation are to be deducted from each other in order to avoid overcompensation.


87      See Commission Notice setting out Interpretative Guidelines on Regulation No 261/2004, published on 15 June 2016 (OJ 2016 C 214, p. 5), especially Section 2.2.6, entitled ‘Scope of the Regulation in relation to the Package Travel Directive’.


88      On that subject, see judgment in Aegean Airlines (paragraph 38), and also my Opinion in Aegean Airlines (point 58 et seq. and the case-law cited).


89      On the advantages obtained for passengers covered by Article 7 of Regulation No 261/2004, see, in particular, judgment of 29 July 2019, Rusu (C‑354/18, EU:C:2019:637, paragraphs 26 to 31).


90      See, in particular, judgment of 11 July 2019, České aerolinie (C‑502/18, EU:C:2019:604, paragraph 31). On the sharing of responsibility and of the costs inherent in the compensation paid by the operating air carrier in the event of long delay, see the Commission Communication of 19 December 2011, ‘A European vision for Passengers: Communication in Passenger Rights in all transport modes’ (COM (2011) 898 final, p. 12, point 7.1).


91      See my Opinion in Aegean Airlines (point 66).


92      However, I do not deny that the normative system resulting from the combination of the provisions of Regulation No 261/2004 and those of Directive 90/314, before the clarification provided by Directive 2015/2302, is not one of the easiest to implement for a passenger who has entered into a contract for travel with one company, in this instance the travel agency, but who must claim flat-rate compensation from another company, in this instance the operating air carrier (see also de Lambertye-Autrand, M.‑C., op. cit. in footnote 16, p. 397, point 29).


93      See the Czech Government’s reply cited in footnote 59 of this Opinion.


94      In that regard, the Czech Government refers to the judgment in Sturgeon and Others (paragraph 69 in fine), where the Court held that a flight delayed for at least 3 hours ‘does not, however, entitle passengers to compensation if the air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier’.