On 26 March 2020, the Court of Justice held its judgment in Case C‑215/18, Libuše Králová v Primera Air Scandinavia, on the interpretation of Article 5(1), and Articles 15 to 17 of Regulation (EC) No 44/2001 and Regulation (EC) No 261/2004. The request has been made in proceedings between Ms Libuše Králová and Primera Air Scandinavia A/S (“Primera”), an air transport company based in Denmark, concerning an action for compensation under Regulation No 261/2004 on account of the long delay of a flight operated by Primera.

Ms Libuše Králová entered into a package travel contract with the travel agency FIRO-tour a.s. consisting of carriage by air between Prague and Keflavík (Iceland), operated by Primera, and accommodation in Iceland. Following the delay of more than four hours of the flight, Ms Králová brought an action for compensation before the Obvodní soud pro Prahu 8 (District Court, Prague 8; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceeding and to ask the Court of Justice three preliminary questions. 

By its third question, examined as first by the Court of Justice, the referring court asked 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. According to the Court, a passenger on a flight delayed can resort to Regulation No 261/2004 against an operating air carrier even if a contract does not exist between those parties. Furthermore, since Regulation No 261/2004 does not affect the rights of passengers under Directive 90/314, the right to compensation according to article 7 of that Regulation is applicable to a passenger whose flight forms part of a package.

By its first question, the referring court asked the Court 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 are to apply to an action for compensation brought on the basis of Regulation No 261/2004 by a passenger against the operating air carrier, 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. According to the Court, since a carrier which has not entered into a contract with the passenger and fulfils obligations arising under Regulation No 261/2004 is deemed as acting on behalf of the person who entered into that contract for carriage with that passenger, an action for compensation for a long flight delay brought by that passenger against that operating air carrier must be regarded as covering matters relating to a contract. 

By its second question, the referring court asked the Court 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 laying down rules on special jurisdiction “over consumer contracts”. The Court answered the question negatively, inasmuch as, unlike the rules of special jurisdiction according to article 5(1) of Regulation no. 44/2001, the rules of jurisdiction laid down in Chapter II, section 4, of that Regulation require the parties to the dispute to be also the parties to the contract.

Marco Stillo