BGH; 2017-11-28; X ZR 76/16
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2017:281117BXZR76.16.0
Date: 2017-11-28
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE1128(51)_ENG_SUMJURE
JURE summary
JURE summary
The case dealt with by the Bundesgerichtshof (hereinafter ‘the Supreme Court’) concerned the place of performance in a claim for compensation where the journey consisted of two legs without a significant stay at the transit airport. The Supreme Court submitted to the Court of Justice of the European Union the following question:
If the passenger transportation involves two flights without a significant stay at the transit airport, does the final destination of the air passenger also represent the place of performance under Article 7(1)(b) second indent of the Brussels I Regulation (recast) (1) when the compensation claim pursued by the action under Article 7 of Regulation (EC) No 261/2004 (2) is based on a problem which occurred during the first part of the journey and the action is made against a party of the contract of carriage who was the operating air carrier of the first, but not the second part of the journey?
The air passengers (hereinafter ‘the plaintiffs’) flew from Jekaterinburg through Helsinki to Düsseldorf. The first flight was delayed by 50 minutes which caused the plaintiffs to miss the connecting flight and then arrive in Düsseldorf with a delay of five hours. The plaintiffs filed an action with the Amtsgericht Düsseldorf (hereinafter ‘the Court of First Instance’) against the air carrier domiciled in Finland  with whom they had concluded the contract of carriage by air (hereinafter ‘the defendant’).  The Court of First Instance ordered the defendant to pay EUR 400 including interest to each of the plaintiffs. Based on the subsequent appeal, the Landesgericht Düsseldorf (hereinafter ‘the Court of Appeal’) increased the respective amount to EUR 600. The defendant filed an admissible revision against this ruling.
The Supreme Court concluded that the decisive question was whether the German courts held international jurisdiction. The international jurisdiction could follow solely from Article 7(1)(a/b) second indent of the Brussels I Regulation. However, it did not follow from the domicile of the defendant or the existence of jurisdiction in consumer contracts, as the defendant was not domiciled in Germany and the provisions regarding the jurisdiction in consumer contracts do not apply to services of carriage. The jurisdiction of the German courts could be established if the final destination of the whole journey (Düsseldorf) were to be considered as place of performance. For this reason, the Supreme Court submitted the above question for clarification.
(1) 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.
(2)  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.