The case submitted to the Court of Justice of the European Union concerns the booking of connecting flights, with the airlines Air Berlin and Iberia, from Spain to Germany. In particular, the routes provided by both airlines included stopovers in Spain. The first domestic flights were made by the Spanish airline Air Nostrum. Due to delays in the first flights, the passengers missed their connection to Germany, reaching the final destination with a delay of more than 3 hours.

Because of these delays, the passengers has initiated legal proceedings before the German courts seeking compensation from Air Nostrum under the Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. The German courts, however, had doubts as to whether they have jurisdiction on this case, since the concerned airline has its seat in another Member State, it operated only the first domestic flights in Spain and it is not the passengers’ contracting partner. Air Nostrum did not have contractual relations with the passengers as it operated the flights on behalf of Air Berlin and Iberia. Therefore, the German courts have decided to suspend the proceedings and ask the Court of Justice if it is necessary to apply the provisions of the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters according to which a defendant domiciled in another Member State may be sued, in matters relating to a contract, in the courts of the place of performance of the obligation. In the case of the provision of services, that place is where, under the contract, the services were provided or should have been provided.

According to the Court of Justice, the final destination in Germany can be considered to be the place of performance of the services to be provided not only with respect to the second flight, but also with respect to the first domestic flight in Spain. The Court has found that, in the case of a connecting flight, the ‘place of performance’ of that flight, in the case where the different flights were part of a single booking for the entire journey and the long delay of the arrival at the final destination is due to an irregularity which took place on the first of those flights.

The Court has also noted that, according to Regulation (EC) No 261/2004, where an operating air carrier which has not concluded a contract with the passenger fulfils obligations under that regulation, it is to be regarded as doing so on behalf of the person which concluded the contract with the passenger concerned. Therefore, in the present case, Air Nostrum must be regarded as fulfilling the freely consented obligations vis-à-vis Air Berlin and Iberia.

As a consequence, the German courts have, in principle, jurisdiction to rule on actions for compensation brought against Air Nostrum.

Davide Scavuzzo