OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 7 November 2019 (1)
Case C‑215/18
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.