Judgment;Summary — ECLI:EU:C:2024:194
Date: 2024-02-29
Language of the case: Spanish
Court formation: Third Chamber
Subject matter: Consumer protection;Approximation of laws;Transport
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-11/23 – 1 
Case C-11/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
12 January 2023 
Referring court: 
Juzgado de lo Mercantil No 1 de Palma de Mallorca (Spain) 
Date of the decision to refer: 
31 October 2022 
Applicant: 
Eventmedia Soluciones, S.L. 
Defendant: 
Air Europa Líneas Aéreas, S.A.U. 
  
Subject matter of the main proceedings 
Contract of carriage by air – Clause in the contract of carriage prohibiting the 
transfer of the rights/claims of the passenger – Transfer, by means of a contract 
between the passenger and a transferee company that is not a consumer, of the 
passenger’s right to compensation in the event of the cancellation of their flight – 
Legal standing of the transferee company – Possible unfairness of the clause 
prohibiting the transfer of rights 
Subject matter and legal basis of the request 
Request for a preliminary ruling on interpretation – Article 267 TFEU – 
Interpretation of certain provisions of Regulation (EC) No 261/2004 and Directive 
93/13/EEC 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-11/23 
 
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Questions referred for a preliminary ruling 
1. Can the inclusion in the contract of carriage by air of a clause such as the clause 
in question be regarded as an inadmissible exception within the meaning of 
Article 15 of Regulation (EC) [No 261/2004], on the ground that it limits the 
carrier’s obligations by limiting the possibility for passengers to receive 
compensation for the cancellation of a flight by transferring the claim? 
2. Can Article 7(1) in conjunction with Articles 5(1)(c) and 5(3) of Regulation 
(EC) [No 261/2004] be interpreted as meaning [that] the payment of 
compensation for the cancellation of a flight to be paid by the operating carrier is 
an obligation imposed by the Regulation irrespective of the existence of a contract 
of carriage with the passenger and of the culpable breach of the air carrier’s 
contractual obligations? 
In the alternative, in the event [that] that clause is considered to not constitute an 
inadmissible exception within the meaning of Article 15 of Regulation (EC) 
[No 261/2004] or it is held that the right to compensation is of a contractual 
nature, the following [question] is referred for a preliminary ruling: 
3. Must Articles 6(1) and 7(1) of Council [Directive] 93/13/EEC of 5 April 1993 
on unfair terms in consumer contracts be interpreted as meaning that a national 
court hearing an action regarding the right to compensation for the cancellation of 
a flight provided for in Article 7(1) of Regulation (EC) [No 261/2004] is required 
to review of its own motion whether a clause in the contract of carriage that does 
not allow the passenger to transfer their rights is unfair, where the claim is brought 
by the transferee[,] who[,] unlike the transferor, is not a consumer or user? 
4. If it is appropriate to carry out a review of the court’s own motion, may the 
obligation to inform the consumer and establish whether they claim that the clause 
is unfair or consent to it be disregarded in the light of the conclusive act of having 
transferred their claim in breach of any unfair term that does not permit the claim 
to be transferred? 
Provisions of European Union law relied on 
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 (in particular, Articles 5, 7 and 
15). 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (in particular, Articles 6 and 7). 
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Provisions of national law relied on 
Código Civil (Civil Code): 
Article 1112 provides that ‘all rights acquired under an obligation shall be 
transferable in accordance with the law and unless the parties agree otherwise’. 
Article 1255: ‘The contracting parties may draw up such agreements, terms and 
conditions as they deem appropriate, provided that they are not contrary to law, 
morality or public order’. 
Article 1275: ‘Contracts without object or with unlawful objects shall have no 
effect. […]’ 
Ley 7/1998, de 13 de abril, sobre condiciones generales de la contratación (Law 
7/1998 of 13 April 1998 on general contractual conditions): 
Article 8: 
1. ‘ General conditions that infringe the provisions of this Law or of any other 
prescriptive or prohibitive rule, to the detriment of a party to the contract, shall 
automatically be void, save in so far as those provisions attach other 
consequences to cases of infringement. 
2. In particular, general terms which are unfair, where the contract has been 
concluded with a consumer as defined in any event in Article 10a and the first 
additional provision of Law 26/1984 of 19 July, the General Law for the 
Protection of Consumers and Users, shall be void.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 Several air passengers who were affected by the cancellation of a flight scheduled 
for 24 March 2022 – from Santa Cruz Viru Viru (Bolivia) to Madrid – transferred 
their right to compensation under Article 7 of Regulation (EC) No 261/2004 to the 
applicant, the company Eventmedia Soluciones, S.L., by means of a contract for 
the transfer of claims. 
2 In pursuing the right provided for in that article, the applicant brought a claim 
under the simplified procedure against Air Europa Líneas Aéreas, S.A.U. The 
action seeks, by way of compensation, the sum of EUR 600 for each passenger 
affected by the cancellation of the flight in question. 
3 The defendant airline, Air Europa Líneas Aéreas, S.A.U., lodged a defence 
disputing the claim. It does not deny that the flight was cancelled and, therefore, 
the assumption that this would give rise to the right to compensation provided for 
in Article 7(1)(c), read in conjunction with Article 5(1)(c), of Regulation (EC) 
No 261/2004, but does not agree that compensation must be paid to passengers 
who have transferred their claim. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-11/23 
 
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Specifically, the defendant airline disputes the applicant’s legal standing to bring 
proceedings on the ground that it believes there was no legally valid transfer of the 
claim because the prohibition on transferring the passenger’s rights laid down in 
Clause 15(1) of the general contractual conditions of the airline Air Europa was 
breached. The clause is worded as follows: 
‘The liability of Air Europa and of any carrier, in accordance with Article 1, shall 
be determined by the conditions of carriage of the carrier issuing the ticket, unless 
otherwise provided. The passenger’s rights are of a personal nature and the 
transfer of these rights is not permitted.’ 
The essential arguments of the parties in the main proceedings 
4 At the hearing, the referring court expressed doubts as to whether European Union 
law should apply. The doubts are as follows: 
(1) Whether the inclusion of Clause 15(1) in the contract of carriage 
constitutes a limitation of the obligations of airlines towards 
passengers that Article 15 of Regulation (EC) No 261/2004 considers 
an inadmissible exception. 
(2) The legal or contractual nature of the right to compensation under 
Article 7(1) of Regulation (EC) No 261/2004. 
(3) The scope of the review of the court’s own motion of unfair terms 
under Directive 93/13 on unfair terms and the corresponding case-law 
of the CJEU, in a case such as this where the transferee is not a 
consumer. 
5 The referring court raises the question in the alternative as to the review of its own 
motion of unfair terms, without prejudice to the Court of Justice of the European 
Union deeming it necessary to rule on the matter. 
6 The defendant airline (Air Europa) and the Public Prosecutor duly expressed their 
opinion on the possible submission of a request for a preliminary ruling. Air 
Europa raised, inter alia, the case-law regarding the legal or contractual nature of 
the right to compensation provided for in Regulation (EC) No 261/2004. In its 
view, that issue has been clarified by the CJEU in its judgments of 26 March 2020 
(Case C-215/18) and 7 March 2018 (Joined Cases C-274/16, C-447/16 and 
C-448/16). The Public Prosecutor disputed the need for a review of the court’s 
own motion of the unfairness of the clause in question. It considers that the 
transferee, as an entity specialising in air carriage claims, is not a consumer or 
user. In support of its view, it invoked the order of the Spanish Supreme Court, 
First Chamber, of 30 May 2018 (Case 47/18). 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
7 The importance, under Spanish procedural law, of airlines including in their 
contracts of carriage clauses that limit the transfer of claims for compensation 
provided for in Article 7(1) of Regulation (EC) No 261/2004. 
8 Unlike in the case of complaints made to the competent national enforcement 
bodies under Regulation (EC) No 261/2004 – where, according to point 7(1) of 
the Interpretative Guidelines on Regulation (EC) No 261/2004 (2016/C-214/04), 
‘a passenger should have the right to decide whether he/she wants to be 
represented by another person or entity’ – when the passenger decides to bring a 
claim before the courts, there is no such provision. The Regulation and the 
Interpretative Guidelines are silent on this matter. 
In such cases, the rules of procedure laid down in the Member State whose courts 
have jurisdiction under domestic laws allocating jurisdiction or, where 
appropriate, under the provisions allocating jurisdiction as established in 
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 
12 December 2003 on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters are to apply. 
9 In Spain, a legal action for compensation from the operating air carrier, as 
provided for in Regulation (EC) No 261/2004, is subject, on account of the 
amount involved, to the simplified procedure. As the claim does not exceed 
EUR 2 000, the applicant may appear on their own behalf and defend their 
interests. In other words, it is not necessary to instruct a procurador de los 
tribunales (court agent) and lawyer. If the applicant prefers, they may nevertheless 
appoint a court agent to appear in their name and on their behalf. However, it is 
not permissible to authorise any other person to represent the applicant and 
manage the claim in their name and on their behalf. 
10 However, although the passengers concerned do not need a lawyer and court agent 
(due to the small amount claimed and the simplicity of the proceedings), the fact 
that airlines generally put forward a robust defence means that passengers rarely 
represent themselves. A further obstacle is that, even though these proceedings do 
not normally require a hearing, if the defendant requests a hearing, a date and time 
for a hearing will be scheduled. As specified in the Code of Civil Procedure, if the 
applicant does not attend the hearing, they may be deemed to have withdrawn and 
will be ordered to pay the costs incurred and to compensate the defendant for the 
damage suffered, if the defendant so requests and provides proof thereof. 
11 Given the complexity that arises, in general, if the passenger concerned decides 
not to represent themselves, the passenger has only two options available. 
The first is to be defended by a lawyer, appearing at the trial either by themselves 
or through a court agent, who is the only professional authorised to appear in court 
in the name and on behalf of the principal. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-11/23 
 
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The second alternative is to transfer the right to claim in exchange for 
consideration. In such cases, the transferee, which is normally an entity 
specialising in claims under Regulation (EC) No 261/2004, appears in the trial in 
its own name and on its own behalf defending its interests as the transferee of the 
claim. 
12 In the present case, the airline alleges that the transferee lacks the legal standing to 
bring an action, claiming that the transfer is null and void on the ground that it 
was made in breach of Clause 15(1) of the general contractual conditions of the 
airline (the content of which appears above). 
13 The referring court considers that, by restricting one of the lawful opportunities 
that passengers have to assert the rights conferred on them by Regulation (EC) 
No 261/2004, the clause could affect the high level of protection for passengers 
that the first recital of this regulation envisages as a policy objective of the 
European Union in the field of air transport. Ultimately, although passengers are 
not parties to the proceedings because they have transferred their rights, the 
validity and effectiveness of the pre-formulated standard clause in the contract of 
carriage prohibiting the transfer of rights has a significant impact on the level of 
protection granted to passengers. It is therefore necessary to clarify the correct 
interpretation of certain provisions of EU law which allows for their uniform 
application. 
Interpretation of the exclusion of waiver provided for in Article 15 of Regulation 
(EC) No 261/2004. (Question 1) 
Irrespective of the review of the court’s own motion of unfair terms relating to the 
protection of consumers and users, the national court, in accordance with the 
domestic legal system, has the power to declare of its own motion that contracts, 
legal transactions and agreements entered into by individuals are automatically 
void if they contravene prescriptive or prohibitive rules. 
14 Clause 15(1) of the general contractual conditions of the airline Air Europa, which 
does not permit the transfer of the passenger’s rights, has its legal basis in 
domestic law in Article 1112 of the Civil Code, in conjunction with the limits on 
freedom of choice laid down in Article 1255 of the Civil Code. 
In that regard, if it contravenes a prescriptive or prohibitive rule and has an 
unlawful object because it is contrary to the law or morality, the agreement is null 
and void (Articles 1275 and 6.3 of the Civil Code). 
15 In the specific area of pre-formulated standard contracts or in respect of the 
general contractual conditions in question, in Spain there is recourse to Law 
7/1998 of 13 April on general contractual conditions. The purpose of the law was 
initially to transpose Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms, and to regulate general contractual conditions. 
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Law 7/1998 draws a clear distinction between unfair terms and general contractual 
conditions, which are pre-formulated and included in a number of contracts 
exclusively by one of the parties and do not necessarily have to be unfair. The 
concept of unfair terms specifically concerns consumers. Provided that there has 
been no individual negotiation, there may be both general contractual conditions 
and pre-formulated standard clauses for a particular contract to which the 
consumer merely agrees. 
16 The referring court, initially and irrespective of any review of its own motion of 
unfair terms, when ruling on the merits of the action regarding the right to 
compensation provided for in Article 7(1) of Regulation 261/2004, requires the 
Court of Justice to clarify the correct interpretation of that regulation. Specifically, 
whether such a clause included in the general contractual conditions of the airline 
constitutes a limitation of the obligations of airlines towards passengers, which, as 
an ‘exclusion of waiver’, is provided for in Article 15 of Regulation (EC) 
No 261/2004. 
In that case, because of the direct effect of the regulation, the general contractual 
condition would be contrary, to the detriment of the contracting party, to a 
prescriptive or prohibitive rule and, therefore, automatically null and void, with 
the clause declared not to form part of the contract. 
17 The correct interpretation of Article 15 of Regulation (EC) No 261/2004 will 
clarify whether or not the high level of protection for passengers referred to in the 
first recital of the regulation would be limited with the inclusion of such clauses in 
contracts of carriage by restricting and making it more difficult to exercise 
passengers’ rights. Ultimately, it will resolve the alleged lack of standing by 
specifying whether or not the transfer of the claim is legally valid due to the 
clause limiting the transfer being void under Article 15 of Regulation (EC) 
No 261/2004. 
Legal or contractual nature of the right to compensation provided for in 
Regulation (EC) No 261/2004. (Question 2) 
18 As stated above, in Spain, actions regarding the right to compensation provided 
for in Regulation (EC) No 261/2004, on account of the amount involved, are 
settled by means of simplified proceedings. As most claims do not exceed 
EUR 3 000, judgments cannot be appealed under the Code of Civil Procedure. 
This explains why there is a great disparity in the criteria applied by the courts of 
first instance, since there is no settled case-law of the higher courts. 
19 However, this type of clause has on occasion been examined by higher courts. The 
rulings have varied. It has been argued that the breach of the prohibition on 
transfers would only have consequences between the transferor and the airline, 
that the clause would be null and void due to a lack of lawful object, and even that 
the clause prohibiting the transfer of passenger rights would be irrelevant in so far 
as the right to compensation arises not from the contract but from Regulation (EC) 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-11/23 
 
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No 261/2004. Therefore, general contractual conditions to which the passenger 
merely agrees do not lay down a prohibition on transferring the right to 
compensation to be paid by the operating air carrier. 
The latter position was supported by the Audiencia Provincial de Baleares 
(Provincial Court, Balearic Islands) in a judgment of 21 July 2020, which reverses 
a first instance judgment confirming the validity of the transfer of the claim for 
compensation. 
20 The airline Air Europa Líneas Aéreas, S.A., in the present proceedings, submits 
that such a view is incorrect. It submits in its pleadings that the Court of Justice of 
the European Union has already clarified the contractual nature of the right to 
compensation. Consequently, in accordance with Clause 15(1) of the general 
contractual conditions of the airline, the passenger could not transfer the right to 
compensation provided for in Regulation (EC) No 261/2004 due to the non-
performance of the contract of carriage. 
To that end, it relies on a number of judgments. The judgment of the CJEU of 
7 March 2018 (Joined Cases C-274/16, C-447/16 and C-448/16), which states in 
paragraph 63 that the obligations of the carrier ‘arise under the contract for 
carriage by air’. And the judgment of 26 March 2020 (Case C-215/18), which, in 
paragraph 49 and in preliminary ruling (2), for the purposes of determining 
jurisdiction in accordance with the provisions of Council Regulation (EC) 
No 44/2001 of 22 December 2000, rules that an action for compensation brought 
under Regulation (EC) No 261/2004 by a passenger against the operating air 
carrier is covered by the concept of a ‘matter relating to a contract’, within the 
meaning of Article 5(1) of Regulation (EC) No 44/2001, ‘even if no contract was 
concluded between those parties and the flight operated by that air carrier was 
provided for by a package travel contract’. 
21 The referring court is aware of the complexity as regards the parties to the contract 
of carriage. Contractual positions are sometimes interchangeable both as regards 
the passenger and the carrier. The passenger may be changed at the time when the 
contract is entered into, since sometimes the contract with the airline is entered 
into by a person other than the person who will take the flight. In the case of the 
carrier, a change to the contracting party may occur during the performance of the 
contract, when the airline that entered into the contract is replaced by another, or 
enters into an interlining agreement with other airlines. 
Regulation (EC) No 261/2004 uses the term ‘passenger’ in a generic manner, 
without providing any definition in Article 2. However, it seems to imply that the 
right to compensation provided for in Article 7(1) of Regulation (EC) 
No 261/2004 corresponds to the passenger who is travelling, regardless of whether 
they personally entered into the contract with the airline. This is without prejudice 
to the fact that the CJEU, in its judgment of 17 February, Case C-429/14, 
recognised, within the scope of the Montreal Convention, that the employers of 
passengers who have entered into a contract of international carriage have legal 
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standing to bring the actions provided for in Articles 19, 22 and 29 of the 
Montreal Convention. 
On the other hand, Regulation (EC) No 261/2004, in relation to the carrier, allows 
the carrier to be replaced by another carrier without the consent of the passenger. 
Although Article 3(5) of Regulation (EC) No 261/2004 provides for a sort of 
contractual replacement and direct representation, by stating that, where the de 
facto carrier fulfils the obligations under the regulation, it does so on behalf of the 
person who has a contract with the passenger, liability for the payment of 
compensation is nevertheless imposed by the regulation on the ‘operating air 
carrier’. In other words, the regulation makes the de facto operating carrier liable, 
even if it does not have a contract with the passenger. 
22 Although the position of the airline may in principle appear to be well founded, 
the referring court observes that Article [3(5)] of the regulation provides that the 
regulation applies ‘to any operating air carrier providing transport to passengers 
…’. Consequently, since the operating air carrier is obliged to pay compensation, 
whether or not it entered into the contract with the passenger, the question arises 
whether the obligation to pay compensation provided for in Article 7(1) of 
Regulation (EC) No 261/2004 is legal or contractual in nature. 
It is also understood that the rights of passengers under Regulation (EC) 
No 261/2004 must not be confused with the rights laid down in the Montreal 
Convention, even though that convention provides for the liability of the 
contractual and de facto carrier. Whereas under the Montreal Convention 
compensation can be claimed for damages caused to passengers, assessed on a 
case-by-case basis according to personal circumstances, compensation under 
Regulation (EC) No 261/2004 is imposed on the operating air carrier on an 
objective basis and for mere inconvenience due to loss of time, unless there are 
extraordinary circumstances and on the basis of a standardised amount. This is 
without prejudice to the fact that Article 12 of Regulation (EC) No 261/2004 
allows compensation granted under that regulation to be deducted from the 
liability for damages in the case of further compensation being claimed. 
23 For these reasons, in order to rule on the legal standing of the transferee of the 
right to compensation and, specifically, the validity or invalidity of the transfer of 
the claim due to the prohibition on transfers in the contract of carriage, it is 
necessary to correctly interpret the nature of the right to compensation provided 
for in Article 7(1) of Regulation (EC) No 261/2004. 
In addition to the actions that the passenger is entitled to bring for any culpable 
breach of the carrier’s obligations, Article 7(1) of Regulation (EC) No 261/2004, 
read in conjunction with Article 5(1)(c) thereof, imposes the obligation to pay 
compensation in the event of cancellation for the ‘trouble’ and ‘inconvenience’ 
that it entails, provided that there are no extraordinary circumstances that could 
not have been avoided even if all reasonable measures had been taken. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-11/23 
 
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Clarification of whether the obligation to pay compensation, although provided 
for in the regulation, is based on breach of contract would therefore enable the 
referring court to determine whether or not the clause prohibiting the transfer of 
rights contained in the contract of carriage is relevant to the transfer of the right to 
compensation. 
Review of the court’s own motion of the unfairness of a clause contained in a 
contract of carriage. (Questions 3 and 4) 
Aside from reviewing whether the general contractual conditions form part of the 
contract, the referring court, after examining Clause 15(1) of the airline’s general 
contractual conditions, considers that it has sufficient factual and legal elements to 
carry out a review of the content of the clause and to find, after both sides have 
been heard, that it is unfair. 
The clause was not individually negotiated, but appears as a standard term in most 
of the airline’s passenger contracts. It also appears that, contrary to the 
requirement of good faith, it causes a significant imbalance in the parties’ rights 
and obligations arising under the contract of carriage, to the detriment of the 
consumer and user. Without justification, a limit is imposed on the rights of the 
consumer and user to transfer their rights under the terms of Article 1112 of the 
Civil Code (Articles 82(1) and 86(7) of Real Decreto Legislativo 1/2007, de 16 de 
noviembre, por el que se aprueba el texto refundido de la Ley General para la 
Defensa de los Consumidores y Usuarios y otras leyes complementarias (Royal 
Legislative Decree No 1/2007 of 16 November 2007, approving the re-cast text of 
the General Law for the protection of consumers and users and related laws)). 
In turn, the review of the court’s own motion would comply with the principle of 
the delimitation of the subject matter of an action by the parties and with the 
principle of the correlation between the claims put forward in the action and the 
rulings contained in the operative part, and would be carried out in relation to an 
undisputed term linked to the subject matter of the dispute. It is necessary 
because, under the clause in question, the transferee’s legal standing is called into 
question. 
However, the proceedings were not initiated at the request of a consumer, but at 
the request of the transferee of the claim who is not a consumer. Therefore, in 
addition to the difficulty of complying with the requirement in the judgment of 
1 October 2015, ERSTE Bank Hungary, C-32/14, EU:C:2015:637, paragraph 63, 
that the proceedings be initiated by a party to the contract, the consumer’s wishes 
could not be taken into account by informing them and seeking their opinion on 
the matter in order to determine whether they wish to invoke the unfair and non-
binding nature of the clause (judgment of the Court of Justice of 4 June 2009, 
Pannon GSM, C-243/08, EU:C:2009:350, paragraph 33).