On 11 April 2024, the Court of Justice handed down its judgment in C‑173/23, Eventmedia Soluciones SL v Air Europa Líneas Aéreas SAU, on the interpretation of Article 6(1) and of Article 7(1) of Directive 93/13/EEC. The request has been made in proceedings between Eventmedia Soluciones SL (“Eventmedia”), the transferee of an air passenger’s claim, and Air Europa Líneas Aéreas SAU (“Air Europa”) concerning a compensation claim.

A passenger who suffered a delay in the transport of his baggage on a flight from Madrid to Cancún assigned his claim for damages against Air Europa to Eventmedia. The latter, therefore, brought an action before the Juzgado de lo Mercantil n^o1 de Palma de Mallorca (Commercial Court No 1, Palma de Mallorca; the “referring court) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to refer to the Court of Justice two questions for a preliminary ruling.

By the first question, the referring court asked whether Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted as meaning that the national court is required to examine ex officio whether a clause is unfair which, in the contract of carriage concluded between a passenger and an air carrier, prohibits the assignment of rights enjoyed by the former in respect of the latter, where that court has an action seeking compensation brought before it, against that carrier, by a commercial company which is the assignee of that passenger’s claim for damages.

According to the Court where, under domestic law, the national court has the discretion or the obligation to assess ex officio whether a contractual term is contrary to national rules of public policy, it must also have the discretion or the obligation to assess ex officio whether such a term is contrary to Article 6 of Directive 93/13, where it has the legal and factual information necessary to that effect. The national court, however, is not required to carry out such an examination provided that, in accordance with national procedural rules, the commercial company which is the assignee of the consumer’s claim has or has had a genuine opportunity to rely, before it, on the possible unfairness of a clause in the contract signed by that consumer.

By the second question, instead, the referring court asked whether the principle of audi alterem partem must be interpreted as meaning that, where the national court finds ex officio that a clause in a contract of carriage concluded between a passenger and an air carrier in an action for compensation brought, against that carrier, by a commercial company which is the assignee of that passenger’s claim for damages against the latter, is unfair, that court is required to inform that passenger and to ask him whether he intends to rely on the unfair nature of that clause or whether he agrees to its application.

According to the Court, where it finds ex officio that a clause in a contract concluded between a consumer and a seller or supplier is unfair, in a dispute between the latter and the commercial company which is the assignee of the rights of that consumer, the national court must inform the two parties to the dispute of that finding, so that they can put forward their respective arguments in the context of setting out their view on the matter with the opportunity to challenge those of the other party. In contrast, the national court is not required to inform that consumer of that examination or to obtain his observations in that regard, given that the consumer, who has assigned his claim for damages against the seller or supplier, is not a party to the dispute between the latter and the assignee of that claim.

Marco Stillo