Order — ECLI:EU:C:2019:330
Date: 2019-04-11
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Spain

Anonymised version 
Translation C-646/18 — 1 
Case C-646/18 
Request for a preliminary ruling 
Date lodged: 
15 October 2018 
Referring court: 
Juzgado de lo Mercantil n.º 1 de Gerona (Spain) 
Date of the decision to refer: 
30 July 2018 
Applicant: 
OD 
Defendant: 
Ryanair DAC 
  
JUZGADO DE LO MERCANTIL  
NÚMERO 1 DE GERONA (COMMERCIAL COURT NUMBER 1, 
GERONA) 
[details of the court and the proceedings] [...] 
Applicant 
OD 
Address for service 
[...] Sabadell 
Spain. 
Defendant: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 30.7.2018 — CASE C-646/18 
 
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RYANAIR, D.A.C 
[...] Dublin 
Ireland 
RYANAIR, D.A.C. Representation Office in Spain [Or. 2] 
[...] Girona 
Spain 
Which has not entered an appearance, awaiting summons pursuant to the decision 
of the court to allow the claim to proceed. 
ORDER 
[...] 30 July 2018 
BACKGROUND FACTS 
ONE.– [...] Ms OD, of Italian nationality and resident in Italy, [...] lodged a claim 
under the simplified procedure against the commercial entity RYANAIR, 
D.A.C. Under Article 58 of the Ley de Enjuiciamiento Civil (Law on Civil 
Procedure) 1/2000 of 7 January 2000, the Secretario Judicial (official performing 
certain duties in connection with the proceedings) [...] asked the parties who had 
entered an appearance and the Ministerio Fiscal (State Attorney General) for their 
views on whether this court has international jurisdiction to hear the action. 
TWO.– The Secretario Judicial submitted the case file to the judge for a ruling, 
indicating that only the Ministerio Fiscal had submitted written observations. The 
latter stated therein that –– although, under Article 7(1)(b) of Regulation 
1215/2012 of the European Parliament and of the Council of 12 December 2012, 
the courts of Rome (Italy) or Palermo (Italy) had jurisdiction on the basis of the 
place of performance of the contract (this not being a case of exclusive 
jurisdiction) –– as long as the defendant did not argue a lack of international 
jurisdiction in its defence, the Juzgado de [Or. 3] lo Mercantil n.º 1 de Gerona 
(Commercial Court No 1, Gerona, Spain) should make an order allowing the 
claim to proceed, because it might have jurisdiction under the rule of implied 
prorogation of jurisdiction laid down in Article 26(1) of the regulation. 
THREE.– In an order dated 10 July 2018, pursuant to Article 39 of the Spanish 
Law on Civil Procedure and Article 4bis of the Ley Orgánica del Poder Judicial 
(Organic Law on the Judiciary) 6/1985 of 1 July 1985, the parties who had entered 
an appearance and the Ministerio Fiscal were granted a hearing to enable them to 
comment on the international jurisdiction of this Court to hear the action and, if 
applicable, on whether they had any questions over the interpretation of the rule 
on implied prorogation of jurisdiction in Article 26 of Regulation (EU) 
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No 1215/2012, and to enable them to comment on whether a request for a 
preliminary ruling should be made to the Court of Justice of the European Union. 
Only the Ministerio Fiscal submitted observations. In a written submission of 
27 July 2018, it requested that its earlier written observations of 2 July 2018 be 
cancelled and stated that, under Article 71 of Regulation (EU) No 1215/2012 and 
Article 33 of the Montreal Convention, it considered that, as the defendant 
RYANAIR, D.A.C. had its registered office in Ireland, and as both the departure 
and destination points of the flight were Italian cities, the Spanish courts lacked 
jurisdiction on the grounds that it was for the courts of another State to hear the 
case. 
POINTS OF LAW 
ONE.– Subject matter of the main proceedings and relevant facts 
1. The applicant sued the airline RYANAIR, D.A.C., which has its registered 
office in Ireland, claiming, in accordance with the judgment of the Court of 
Justice of the European Union of 19 November 2009 [Sturgeon and Others 
(C-402/07 and C-432/07, EU:C:2009:716)], the sum of EUR 250 by way of 
compensation, bringing the action provided for in Article 7 of Regulation (EC) 
No 261/2004 of the European Parliament [Or. 4] 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. 
2. The applicant, an Italian national who is neither domiciled nor resident in 
Spain [...] brought the claim in connection with flight FR4902 of 11 September 
2017 from Rome airport to Palermo (Italy) before the Juzgado de lo Mercantil de 
Gerona (Commercial Court, Gerona), a city where a representation office of the 
airline has its headquarters, purely for tax purposes. 
TWO — Relevant legal provisions 
1. In Spain, in civil and commercial proceedings, the different types of 
declaratory proceedings are governed by the Law [...] on Civil Procedure. Since 
there is no substantive limitation which determines the type of action to be 
brought in matters relating to transport, claims brought in relation to such matters 
are dealt with using the ordinary procedure or the juicio verbal (oral proceedings 
for obtaining a declaratory judgment, ‘the simplified procedure’), depending on 
the amount of the claim. Where the claim in the proceedings does not exceed 
EUR 6 000, Article 250(2) of the Law on Civil Procedure provides that it must be 
dealt with according to the rules governing the simplified procedure. In 
accordance with Article 455(1) of the Law on Civil Procedure, no appeal lies 
against judgments given in cases heard under the simplified procedure on the basis 
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of the amount claimed where that amount is EUR 3 000 or less, and therefore the 
declaratory proceedings will be sole-instance proceedings. 
2. Under Article 56 of the Law [...] on Civil Procedure, ‘parties shall be 
deemed to have tacitly submitted to jurisdiction: 
‘1. In the case of the applicant, by the mere fact of bringing proceedings in 
the courts of a particular district by lodging the application or making a 
request or application that has to be submitted to the court with jurisdiction 
to hear the claim. 
2. In the case of the defendant, once he has entered an appearance in the 
proceedings following the lodging of the claim, by performing any 
procedural step other than lodging an objection to jurisdiction in due form. 
The defendant shall also be deemed to have tacitly [Or. 5] submitted where, 
having been given notice or summoned in due form, he does not enter an 
appearance in the proceedings or does so when the right to object to 
jurisdiction has become time-barred’. 
However, under Article 54([1]) of the Law on Civil Procedure, ‘express or 
implied prorogation shall [not] be valid in cases which have to be decided using 
the simplified procedure’. 
3. The extent and limits of the jurisdiction of Spanish civil courts are 
determined by the provisions of the Organic Law on the Judiciary and the treaties 
and international conventions to which Spain is a party. Article 36(2)(3) of the 
Law on Civil Procedure provides that: 
‘The Spanish ... courts shall refrain from hearing cases brought before them … 
where the defendant has been given notice in due form but does not enter an 
appearance in cases in which the international jurisdiction of the Spanish courts 
may be based solely on the implied prorogation of jurisdiction by the parties’. 
Under Article 38 of the Law on Civil Procedure, ‘a court shall decline jurisdiction 
... of its own motion, after hearing the parties and the Ministerio Fiscal, as soon 
as the lack of international jurisdiction is identified’. 
4. Since the action brought is based on the right to compensation laid down in 
Regulation (EC) No 261/04 and this court is of the view that international legal 
jurisdiction is to be determined by Regulation (EU) No 1215/2012 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, the 
court considers it necessary to make the present reference for a preliminary ruling 
to the Court of Justice in order to clarify the correct interpretation of certain 
provisions of that regulation. 
5. Specifically, since the defendant is a company domiciled in Ireland and the 
departure and arrival airports of the flight concerned are not situated in the judicial 
district of this court, there is no doubt that this court does not have international 
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jurisdiction under the general rule that jurisdiction lies with the courts of the 
Member State of the defendant’s domicile or under the alternative rule for actions 
brought in matters relating to a contract, based on the place of departure or arrival. 
However, for the purposes of deciding to decline jurisdiction to hear a case 
(Article 28(1) of [Or. 6] Regulation (EU) No 1215/2012) by means of a final 
decision that brings the proceedings to an end, or allowing the case to proceed 
and summoning the defendant, it is necessary to have the correct interpretation of 
Article 26(1) [of Regulation No 1215/2012] with regard to the concept of implied 
prorogation in relation to this specific case. The article in question is as follows: 
‘Apart from jurisdiction derived from other provisions of this Regulation, a court 
of a Member State before which a defendant enters an appearance shall have 
jurisdiction. This rule shall not apply where appearance was entered to contest 
the jurisdiction, or where another court has exclusive jurisdiction by virtue of 
Article 24.’ 
THREE.– Reasoning on which the decision is based 
1. Although the wording of Article 71 of Regulation (EC) No 44/2001 created 
uncertainties regarding the application of the rules on jurisdiction laid down in 
Article 33 of the Montreal Convention, the judgment of the Court of Justice 
(Fourth Chamber) of 9 July 2009, Rehder (C-204/08, EU:C:2009:439, 
paragraphs 26 to 28), made clear that, in cases such as this, in which the claim in 
the proceedings is based exclusively on Regulation No 261/2004, jurisdiction 
must be determined by reference to the provisions laid down in Regulation 
No 44/2001, which has now been repealed and replaced by Regulation (EU) 
No 1215/2012 […]. 
2. In the light of the case-law of the Court of Justice, it follows from a reading 
of Regulation (EU) No 1215/2012 that it provides for a system of multiple forums 
and that possible conflicts of jurisdiction are to be resolved by means of a 
hierarchy of jurisdictions. Jurisdiction based on subject matter and jurisdiction 
based on the defendant’s domicile yield to the exclusive forum rules which grant 
international jurisdiction to the courts of other Member States and also yield 
where the parties submit to the jurisdiction of courts of other Member States. 
3. Since the defendant, RYANAIR, D.A.C., is domiciled in a Member State 
[Or. 7] (Ireland) and neither the departure airport nor the arrival airport for the 
flight is located in Spain or, specifically, in the judicial district of the Juzgado de 
lo Mercantil de Gerona (Commercial Court, Gerona), where the application was 
lodged, this court lacks international jurisdiction under the general rule that 
jurisdiction is based on the defendant’s domicile, laid down in Article 4 of 
Regulation (EU) No 1215/2012, and [also under] the special rule of jurisdiction 
for matters relating to a contract laid down in Article 7(1)(a) and (b). However, 
bearing in mind that if, contrary to the prohibition of implied prorogation in 
simplified procedures laid down in Article 54(1) of the Spanish Law on Civil 
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Procedure, it were appropriate to allow the action to proceed, then –– in the light 
of the interpretation of Articles 26 and 28 –– this court might have international 
jurisdiction as a result of implied prorogation. 
4. Implied prorogation under the regulation is a concept which must receive an 
autonomous and uniform interpretation, as the Court of Justice has repeatedly held 
(inter alia, judgment of 15 November 2012, Gothaer Allgemeine Versicherung 
and Others (C-456/11, EU:C:2012:719), paragraph 25, and, specifically on 
implied prorogation, judgment of 27 February 2014, Cartier parfums-lunettes and 
Axa Corporate Solutions Assurance, (C-1/13, EU:C:2014:109)). The judgment of 
the Court of Justice of 3 July 1997, Benincasa (C-269/95, EU:C:1997:337) 
established that there is no requirement for there to be any objective connection 
between the dispute and the court designated, and [paragraph] 20 of the judgment 
of the Court of Justice of 3 October 1985, Capelloni and Aquilini (119/84, 
EU:C:1985:388), [establishes] that in certain aspects the procedure may be 
governed by the law of the court in which the proceeding is brought, in that ‘the 
Convention ... leaves the matter of resolving any question not covered by specific 
provisions of the Treaty to the procedural law of the court hearing the 
proceedings’. 
5. In view of the facts of the present case, Regulation (EU) No 1215/2012 [...] 
applies for the purposes of determining international jurisdiction. However, given 
that the only ground on which the Juzgado de lo Mercantil de Gerona 
(Commercial Court, Gerona) could have jurisdiction is that of implied prorogation 
provided for in Article 26(1) of Regulation (EU) No 1215/2012, and as there is no 
objective connection between the dispute and the nationality of the parties[, on the 
one hand,] and the Spanish courts [on the other], and as implied prorogation is not 
permitted under the [Or. 8] Spanish simplified procedure, under which the claim 
must be heard, certain questions regarding the interpretation of EU law arise, if 
the application of EU law, which has direct effect, is to be combined with national 
procedural law. 
6. According to settled case-law of the Court of Justice of the European Union, 
the objective of the regulation is to unify the rules on the jurisdiction of the courts 
of the Member States, so as to avoid as far as possible different solutions and, in 
this regard, to provide legal certainty, allowing the parties to identify the courts 
before which they may bring an action and be sued, and making it easy for 
national courts to decide on their jurisdiction under the rules of the regulation. 
7. The need to make a reference for a preliminary ruling arises at the very 
moment a decision is made on whether or not to allow the case to proceed –– and 
thus before the defendant has been summoned and the question has been debated 
by both parties –– because the very nature of implied prorogation as a ground for 
international jurisdiction makes that necessary, since the decision whether to 
allow the case to proceed and to summon the defendant, or, alternatively, to 
decline to hear the case and to rule it inadmissible, is determined by the 
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interpretation of Article 26(1) taken in conjunction with Article 28 of Regulation 
(EU) No 1215/2012. 
The aspects on which the referring court has questions are as follows: 
• Connection between the subject matter of the dispute or the parties to the 
proceedings and the court of the Member State in which the application is 
lodged 
The judgment of the Court of Justice of 3 July 1997, Benincasa (C-269/95, 
EU:C:1997:337), cited above, made clear that the intentions of the parties 
should prevail and that if they elected for a particular jurisdiction it was 
possible to establish exclusive jurisdiction, [Or. 9] dispensing with any 
objective connection between the subject matter of the proceedings and the 
court designated. However, this statement was made in relation to express 
acceptance of jurisdiction as governed by the Brussels Convention of 
27 September 1968 on jurisdiction and the enforcement of judgments in civil 
and commercial matters, and the court considers it appropriate to clarify 
whether this opinion also applies to implied prorogation of jurisdiction. 
Although the correct interpretation of Article 26 of Regulation (EU) 
No 1215/2012 is needed to enable this court to rule at this stage in the 
proceedings on whether to allow the case to proceed or to declare it 
inadmissible on grounds of lack of international jurisdiction, the referring 
court wishes to point out that the interpretation will affect hundreds of 
proceedings brought in this court. 
The fact that the entity domiciled in Ireland, RYANAIR, D.A.C., has a 
representation office (not a branch) in Gerona (Spain) for the purposes of 
carrying on ancillary activities leads citizens mistakenly to believe that the 
office in question is the registered office of RYANAIR, D.A.C. Although 
they may be able to file the claim with other Spanish courts which have 
jurisdiction under the jurisdictional rules on the place of performance of the 
contract laid down in Article 7(1)(a) and (b) of the regulation, citizens opt to 
file the claim with the Juzgado de lo Mercantil de Gerona (Commercial 
Court of Gerona), in whose district the representation office is domiciled. In 
most cases, they do so in the belief that the Commercial Court of Gerona has 
jurisdiction [Or. 10] under the rules attributing jurisdiction to the 
defendant’s place of domicile in Article 4 of the regulation. However, the 
court lacks jurisdiction both under Article 4 and with regard to the place of 
performance of the contract provided for in Article 7(1)(a) and (b): its 
jurisdiction can only be founded on the implied prorogation of jurisdiction 
provided for in Article 26(1) of the regulation. This situation not only leads 
to an excessive workload for the court concerning disputes that have no 
connection with the court district, but also generates a certain degree of legal 
uncertainty for citizens. 
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Unlike what happens in national law under Article 56(2) of the Law on Civil 
Procedure, under which implied prorogation of jurisdiction occurs where a 
defendant fails to enter an appearance, under Article 36(2)(3) of the Law on 
Civil Procedure and Article 26(1) and Article 28 of Regulation (EU) 
No 1215/2012, international competence on grounds of implied prorogation 
of jurisdiction occurs only if the defendant enters an appearance and does 
not contest the jurisdiction. Consequently, citizens face having to deal with 
proceedings which may or may not end in a judgment, depending on 
whether or not the defendant decides to enter an appearance. 
Therefore, in view of the fact that neither the applicant nor the defendant are 
Spanish citizens or resident in Spain, and the case has no connection with 
Spain, one of the questions referred for a preliminary ruling concerns 
whether or not the autonomous and uniform interpretation of jurisdiction on 
grounds of implied prorogation of jurisdiction provided for in Article 26 of 
Regulation (EU) No 1215/2012 requires an objective element of connection 
between the subject matter of the dispute and the parties[, on the one hand,] 
and the court of the Member State in which the claim is lodged [on the 
other]. [Or. 11] 
• Restriction on implied prorogation of jurisdiction in the procedure to be 
followed under Spanish procedural law 
As noted above, there is no substantive provision in matters relating to 
transport which determines the civil procedure to be followed and therefore, 
in view of the amount of the claim, under Article 250(2) of the Law on Civil 
Procedure, the claim must be heard under the simplified procedure. 
With regard to express agreement as to jurisdiction (‘express prorogation’), 
the EU legislature establishes in Article 25 of Regulation (EU) 
No 1215/2012 that the substantive validity of the agreement is subject to its 
not being null and void under the law of the Member State [...]; therefore 
express prorogation is not considered possible under the simplified 
procedure in Spain, because Article 54(2) of the Law on Civil Procedure 
stipulates that express prorogation is not to be valid in cases which have to 
be decided using the simplified procedure. 
However, under Article 54 of the Law on Civil Procedure, that restriction 
also applies to implied (tacit) prorogation of jurisdiction in relation to the 
simplified procedure. In that connection, since Article 26 of Regulation (EU) 
No 1215/2012 does not refer expressly to national law and, therefore, the EU 
legislature cannot be taken to have intended that issue to be resolved under 
the procedural law of the Member States, and bearing in mind that declining 
jurisdiction to hear the case under Article 54 of the Law on Civil Procedure 
could ‘lead to frustration of the principles laid down’ in relation to implied 
prorogation of jurisdiction, ‘whether expressly or by implication’, by the 
regulation ([paragraph] 21 of the judgment of the Court of Justice of 
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3 October 1985, [Capelloni and Aquilini, (119/84, EU:C:1985:388)]), this 
court considers it necessary to clarify the [Or. 12] correct interpretation of 
the concept of implied prorogation provided for in Article 26 of Regulation 
[No 1215/2012]. 
In the event that the case is allowed to proceed, the court wishes to point out that 
this request for a preliminary ruling is linked to the request made by order of 
9 July 2018 in the proceedings brought under the simplified procedure in this 
court under number 698/2018. The principal aim of the earlier question was to 
clarify the scope of implied prorogation of jurisdiction, in the sense of whether it 
constitutes a ‘pure’ rule of international jurisdiction or a mixed one, and thus 
whether or not it allows the parties to choose both the Member State and the 
specific court. However, that request is closely linked to the present request for a 
preliminary ruling, in that both ask a question concerning the primacy of EU law, 
although they differ in that the present case also seeks to clarify whether implied 
acceptance of the jurisdiction of the courts of a Member State is permissible 
where there is no objective connection between the dispute and the parties’ 
domicile, on the one hand, and the court with which the claim is lodged, on the 
other. 
OPERATIVE PART 
In the light of the foregoing considerations, this court orders that the following 
questions be referred to the Court of Justice of the European Union for a 
preliminary ruling: 
(1) Does the concept of implied prorogation of jurisdiction laid down in and 
governed by Article 26 of Regulation (EU) No 1215/2012 [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] 
require there to be any objective connection between the subject matter of 
the dispute or the domicile of the applicant and the court with which the 
claim is lodged? 
(2) Does the concept of implied prorogation of jurisdiction laid down in and 
governed by Article 26(1) of Regulation (EU) No 1215/2012 require, in all 
respects, an autonomous interpretation [Or. 13] common to all the Member 
States? Is it therefore unable to be made subject to limitations laid down in 
Member States’ rules on domestic jurisdiction, such as a provision that such 
jurisdiction is not valid in proceedings which, because of the small sum 
involved, are required by the Spanish Law on Civil Procedure to be heard 
under the simplified procedure? 
[Internal procedural law, concluding formulas and signature] [...]. [Or. 14]