Nejvyšší soud České republiky; 2015-09-15; 30 Cdo 4971/2014
Decision by national courts in the field of European Union law — ECLI:CZ:NS:2015:30.CDO.4971.2014.1
Date: 2015-09-15
Subject matter: Judicial cooperation in civil matters
Origin: Czechia

82015CZ0915(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a claim of the Czech citizen L.K. (hereinafter “the plaintiff”) against Primera Air Scandinavia (hereinafter “the defendant”), registered in Denmark, to pay compensation for a delayed flight.
The flight of the plaintiff, operated by the defendant, was delayed for more than 4 hours. The plaintiff based the claim on Articles 6(1) and 7 of Regulation (EC) No 261/2004 (1) and notified the defendant of the payment demand. The defendant refused the call for payment, alleging that the flight was delayed by extraordinary circumstances as stipulated in Article 5(3) of the Regulation (EC) No 261/2004. The plaintiff held the refusal as unfounded. Considering the claim as a consumer dispute, the plaintiff took the dispute to the Czech courts, referring to Articles 16(1) and 15(3) of the New Lugano Convention (2).
The Court of First Instance assessed its jurisdiction according to the Brussels I Regulation (3). Pointing out the special position of Denmark within the EU Member States, the court refused to apply this Regulation, assessed the jurisdiction according to the Czech law and decided that the Czech courts lack the jurisdiction. The court added that even under the Brussels regime, the Czech courts would still lack the jurisdiction, as Article 15(3) of the Brussels I Regulation stipulates that the provisions over consumer contracts shall not apply to a contract of transport other than contract which provides for a combination of travel and accommodation which is not the case for a flight.
The Court of Appeals confirmed this decision, although it did not agree with the exclusion of the applicability of the Brussels I Regulation. However, the lower court assessed the possible applicability of the Brussels I Regulation and its conclusions regarding Article 15(3) were held correct.
The plaintiff filled a cassation to the Nejvyšší soud (hereinafter “the Supreme Court”) alleging that both lower courts had drawn erroneous conclusions. The plaintiff alleged that having a contract which provides for a combination of travel and accommodation with a travel agency and based on case C-478/12 (4) of the Court of Justice of the European Union (CJEU), the concept of the “other party to the contract” must be interpreted as meaning that this also covers the contracting partner of the operator with which the consumer concluded that contract. Moreover, the plaintiff alleged that their had been breaches of Articles 24 and 26(1) of the Brussels I Regulation, as the defendant was not notified of the action prior to the decision concerning the jurisdiction.
The Supreme Court declared that the Brussels I Regulation applies also to Denmark. It has priority over the New Lugano Convention and over national legislation. Within the Brussels regime, the court cannot asses its international jurisdiction before it notifies the defendant of the action against him. The court can do so only in cases of exclusive jurisdiction according to Article 22 of the Brussels I Regulation or in cases where the defendant does not enter an appearance in court. Therefore, the Supreme Court agreed that the lower courts had breached Articles 24 and 26(1) of the Brussels I Regulation, annulled the decisions of the lower courts and referred the case back for a new hearing.
The Supreme Court provided several recommendations regarding how the Court of First Instance may consider this case, mainly concerning the concept of the “other party to the contract” and about the relationship between the consumer and the real operator of the service (travel agency vs. the flight operator). The Supreme Court recommended that the case bee referred to the CJEU for a preliminary ruling, when necessary.
(1) 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.
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano, 2007).
(3) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(4) Judgment of the Court of Justice of 14 November 2013, Maletic v lastminute.com and TUI Österreich, C-478/12, ECLI:EU:C:2013:735.