Provisional text
OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered on 26 February 2026 (1)
Case C‑876/24
I.G.V.
v
Vueling Airlines SA
(Request for a preliminary ruling from the Juzgado de Primera Instancia no 1 de Fuenlabrada (Court of First Instance No 1, Fuenlabrada, Spain))
( Reference for a preliminary ruling – Carriage of passengers and their baggage by air – Regulation (EC)
No 2027/97 – Article 3(1) – Montreal Convention – Article 33(1) – Loss of baggage during a flight – Carriage within a Member State – Court having jurisdiction – Online contract – Place where the carrier has a place of business through which the contract has been entered into – Principal and permanent residence of the passenger – Principal or ancillary obligation )
Introduction
1.        This request for a preliminary ruling concerns the determination of the court having jurisdiction to hear a dispute relating to a claim for compensation for the damage caused by the loss of baggage during carriage by air between two airports located in the same Member State, where the contract of carriage was concluded by the passenger via an independent online sales platform, from his domicile, located in another place in the same Member State.
2.        The request has been made by the Juzgado de Primera Instancia no 1 de Fuenlabrada (Court of First Instance No 1, Fuenlabrada, Spain) and specifically concerns the interpretation of Article 33(1) of the Montreal Convention (2) and Article 3(1) of Regulation (EC) No 2027/97. (3) This is the first time that the Court has been called upon to interpret how to determine the court ‘where [the carrier] has a place of business through which the contract has been made’, laid down by Article 33(1) of the Montreal Convention, relating to jurisdiction. The present case also provides an opportunity to examine the challenges posed by the conclusion of online air transport contracts as regards the location of such contracts for jurisdictional purposes.
Legal framework
International law
3.        Under Article 33 of the Montreal Convention, entitled ‘Jurisdiction’:
‘1.      An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.
2.      In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.
3.      For the purposes of paragraph 2[:]
…
(b)      “principal and permanent residence” means the one fixed and permanent abode of the passenger at the time of the accident. …’
European Union law
4.        Article 1 of Regulation No 2027/97 provides that that regulation ‘implements the relevant provisions of the Montreal Convention in respect of the carriage of passengers and their baggage by air and lays down certain supplementary provisions. It also extends the application of these provisions to carriage by air within a single Member State’.
5.        Article 3(1) of Regulation No 2027/97 provides that ‘the liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability’.
The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
6.        On 8 November 2023, Ms I.G.V. entered into an air transport contract with Vueling Airlines S.A., an air carrier having its registered office in Viladecans (Barcelona, Spain), for a flight between Madrid airport (Spain) and Barcelona airport (Spain). That contract was entered into from Ms I.G.V.’s home in Fuenlabrada (Spain), through an independent online sales platform.
7.        As a service in addition to the flight, Ms I.G.V. concluded, in person at Madrid airport, a contract to check in her baggage. That baggage was lost during the journey between Madrid and Barcelona, the loss having been discovered at Barcelona airport, where Ms I.G.V. took a second flight to Rome airport (Italy) but was unable to collect and check in her baggage for that flight.
8.        Ms I.G.V. then brought an action before the referring court, the Juzgado de Primera Instancia no 1 de Fuenlabrada (Court of First Instance No 1, Fuenlabrada), seeking compensation for the damage caused by the loss of her baggage during carriage by air between Madrid and Barcelona. To that end, she provided documentary evidence of the expenses incurred in Rome to replace the contents of her baggage.
9.        The referring court states that Ms I.G.V. did not provide any documentation or information on the purchase of the second flight or on a possible return flight between Rome and Madrid, so it starts from the premiss that there was no ‘international carriage’ within the meaning of Article 1 of the Montreal Convention. It therefore raises the question of its jurisdiction to hear
the dispute brought before it.
10.      In that regard, the referring court notes, first of all, that, according to the case-law of the Court of Justice, Article 33 of the Montreal Convention governs, inter alia, the allocation of territorial jurisdiction as between the courts of each of the States Parties to it. (4) However, if it is held that that provision does not apply to carriage by air within a Member State, the referring court, which is the court of the place of residence of Ms I.G.V., would therefore have jurisdiction to hear
the dispute before it under the rules laid down by the Code of Civil Procedure, (5) which allow Ms I.G.V., as a consumer, to opt for the jurisdiction of her place of domicile.
11.      In so far as the rule laid down in Article 33 of the Montreal Convention is applicable, the referring court next raises the question whether it can be regarded as having jurisdiction as the court ‘where [the carrier] has a place of business through which the contract has been made’, as provided for in Article 33(1) of that convention.
12.      In that regard, the referring court highlights the various interpretations given by certain courts to the expression ‘where [the carrier] has a place of business through which the contract has been made’. For example, a Canadian court has ruled that the concept of ‘place of business’ within the meaning of that provision cannot be interpreted as referring to the computer used to purchase the tickets. (6) By contrast, some Spanish courts and the Corte suprema di cassazione (Supreme Court of Cassation, Italy) have held that those terms can cover the principal and permanent residence from which a passenger purchases a ticket. (7) According to the referring court, the rules for interpreting treaties do not preclude that broad interpretation of Article 33(1) of the Montreal Convention.
13.      Last, the referring court asks whether the words ‘place of business through which the contract has been made’, in Article 33(1) of the Montreal Convention, should be understood as referring to the place of business through which the main contract or the principal obligation of carriage by air was entered into, or whether a distinction should be made between that obligation and the ancillary obligation consisting of the additional service of the carriage of baggage, entered into in person at Madrid airport, in particular where, as in the present case, the damage caused relates specifically to the latter.
14.      The referring court adds that the Court’s answers could lead it to decline jurisdiction and to refer the case in the main proceedings to the courts of the province of Barcelona.
15.      In those circumstances, the Juzgado de Primera Instancia no 1 de Fuenlabrada (Court of First Instance No 1, Fuenlabrada) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘[(1)]      Must Article 3(1) of Regulation [No 2027/97] be interpreted as meaning that the liability of a Community air carrier in respect of the carriage of passengers and their baggage is also to be governed by Article 33 of the Montreal Convention[,
including]
in the case of carriage within a Member State of the European Union?
[(2)]      May Article 33(1) of the Montreal Convention be interpreted as meaning that the place where the carrier has a place of business through which the air transport contract has been entered into could be the principal and permanent residence of the passenger, if the contract was entered into online?
[(3)]      Must Article 33(1) of the Montreal Convention be interpreted as meaning that the place where the carrier has a place of business through which the contract has been entered into refers to the place in which the principal obligation of carriage by air was contracted for and not the place in which the ancillary service, from which the carrier’s liability arises, was contracted for, if the latter place differs from the former?’
16.      Written observations were submitted by the European Commission, the Spanish Government and Vueling Airlines. Pursuant to Article 101 of the Rules of Procedure of the Court, a request for clarification was sent by the Court of Justice to the referring court, which replied by letter of 4 November 2025. The Commission, the Spanish Government and Vueling Airlines presented oral argument at the hearing held on 19 November 2025.
Analysis
17.      Article 33(1) of the Montreal Convention, the substance of which was taken from Article 28(1) of the Warsaw Convention, (8) determines the courts having jurisdiction in the territory of one of the States Parties to hear
an action brought by an air passenger against a carrier. That provision offers applicants four jurisdictions in which they may, at their option, bring their action for damages, namely the court (i) of the domicile of the carrier, (ii) of its principal place of business, (iii) where it has a place of business through which the contract has been made, and (iv) at the place of destination. Unlike the Warsaw Convention, the Montreal Convention adds, in Article 33(2), that, in the event of damage resulting from the death or injury of a passenger, an action for damages
may also be brought in the territory of a State Party in which, at the time of the accident, the passenger has his or her principal and permanent residence, provided that the carrier also has a commercial link with that place.
18.      In the present case, the discussion focuses on the interpretation to be given to the third jurisdiction prescribed in Article 33(1) of the Montreal Convention and the expression ‘where [the carrier] has a place of business through which the contract has been made’. Since the Montreal Convention is an integral part of the European Union legal order, the Court has jurisdiction to give a preliminary ruling concerning its interpretation. (9)
19.      The referring court asks, in particular, whether that third jurisdiction can be regarded as including the passenger’s principal and permanent residence, where the air transport contract was entered into online (second question), and whether it is necessary to establish the existence of a principal obligation which determines the appropriate place of jurisdiction (third question). Before turning my attention to the analysis of those questions, I will examine the applicability of Article 33 of the Montreal Convention to the present case, since the flight after which the loss of the baggage was discovered took place within a single Member State of the European Union (first question).
First question
20.      By its first question, the referring court asks, in essence, whether Article 3(1) of Regulation No 2027/97 must be interpreted as meaning that the determination of the courts having territorial jurisdiction to hear an action for damages against an EU air carrier is to be governed by Article 33 of the Montreal Convention, including in the case of carriage within a Member State of the European Union.
21.      I would recall that, in accordance with settled case-law, the interpretation of a provision of EU law requires consideration of not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. (10)
22.      It follows from the wording of Article 3(1) of Regulation No 2027/97
that ‘the liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability’. (11)
23.      However, Article 1 of Regulation No 2027/97
states that that regulation implements the ‘relevant provisions of the Montreal Convention in respect of the carriage of passengers and their baggage by air’. (12) While it adds that ‘it also extends the application of these provisions to carriage by air within a single Member State’, that regulation does not specify what is meant by such ‘relevant provisions’ and does not expressly refer to Article 33 of the Montreal Convention, which concerns the determination of the courts having jurisdiction to hear
an action for damages against an air carrier. (13) In addition, the recitals of that regulation more specifically emphasise the need to make the ‘level and nature of liability’ in national and international transport uniform, without providing any guidance as regards jurisdiction. (14)
24.      It is therefore permissible to raise the issue of what Article 1 of Regulation No 2027/97 means by ‘relevant provisions’ of the Montreal Convention and, more specifically, to ask whether that regulation extends not the scope of the rules on jurisdiction laid down in Article 33 of that convention but only the scope of the substantive provisions. (15)
25.      According to Advocate General Szpunar, it is possible to consider that the reference in Article 3(1) of Regulation No 2027/97 covers all of the provisions of Chapter III of the Montreal Convention relating to the liability of air carriers, including the provisions concerning the rules on jurisdiction set out in Article 33 thereof. That position is based on the consideration that the aim of Regulation No 2027/97 is to make the liability of air carriers subject to a single set of rules, both for international and national carriage within the European Union. Such an objective militates in favour of a broad interpretation of Article 3(1) of that regulation. The rules on jurisdiction form part of the overall approach taken by the Montreal Convention to eradicate conflicts of laws and jurisdiction and to establish a foreseeable set of rules on liability, protecting passengers and enabling air carriers to manage risk more effectively. Advocate General Szpunar also recalled the close interconnection of economic relations within the internal market, which means that a dispute may easily take on a cross-border dimension even if it arises as a result of an accident that occurred during a national flight. That consideration justifies, in his view, the application of uniform rules on jurisdiction as regards the liability associated with national and international flights within the European Union. (16)
26.      In my view, Advocate General Szpunar’s analysis is confirmed by the context of the provisions of Regulation No 2027/97
and by the objectives pursued by that regulation.
27.      In that regard, I would recall that Regulation No 2027/97, which was initially adopted in order to incorporate the Warsaw Convention into the Community legal order and to increase the liability limit of air carriers as laid down by that convention, (17) has been recast in order to align it with the provisions of the Montreal Convention. (18)
28.      It is true that it is not apparent from the travaux préparatoires for the adoption of Regulation No 2027/97
that the EU legislature expressly examined the application of the rule of jurisdiction laid down in Article 33 of the Montreal Convention to carriage by air within a single Member State.
29.      However, on the one hand, I note that certain considerations relating to the determination of the courts having jurisdiction surrounded the adoption of Regulation No 2027/97, in its original version. The Commission’s proposal for a regulation provided, in Article 7, that ‘a person entitled to compensation in the case of accidents involving Community air carriers may, in addition to the rights conferred by Article 28 of the Warsaw Convention, bring an action for liability before the courts of the Member State where the passenger has his domicile or permanent residence’. (19) However, Article 7 was deleted because of the ‘very complex legal and factual issues’ it raised, on account of ‘the possibility of bringing an action for liability before the Courts of the Member State where the passenger has his domicile or permanent residence’, which ‘would have to be resolved before settling the claim’. (20)
30.      In my view, it is clear from the deletion of Article 7 of the Commission’s proposal for a regulation that, when Regulation No 2027/97 was adopted, in its original version, the EU legislature wished to refer to Article 28(1) of the Warsaw Convention for the purposes of determining the courts having jurisdiction to hear claims for compensation brought on the basis of that regulation and not to provide for any additional or separate choice of court.
31.      On the other hand, the fact remains that recital 4 of Regulation No 2027/97, in its original and amended versions, states that ‘in the internal aviation market, the distinction between national and international transport has been eliminated’. Similarly, recital 8 of Regulation No 889/2002 provides that ‘in the internal aviation market, the distinction between national and international transport has been eliminated and it is therefore appropriate to have the same level and nature of liability in both international and national transport within the Community’. In the explanatory memorandum to the proposal for Regulation No 889/2002, the Commission also stated that since Regulation No 2027/97, in its original version, is binding ‘upon all European Community carriers, regardless of which route is being operated, the rules apply to domestic, intra-European and international transport of passengers’. The amendments to Regulation No 2027/97 were thus intended, in particular, to ‘align the provisions on liability, exoneration and compensation in case of death or injury exactly on the texts of the equivalent provisions in the Montreal Convention, so that the regime applicable to Community carriers, regardless of whether the route flown is international, intra-Community or domestic, is uniform’. (21)
32.      It follows that both the substantive and procedural rules of the Montreal Convention are intended to apply to carriage by air within a single Member State, (22) since European air transport policy aims to harmonise certain areas of carrier liability and to apply a coherent body of passenger rights, in order to reflect, in EU law, the objective of uniformity pursued by that Convention.
33.      In the light of the foregoing, I suggest that the Court answer the first question referred for a preliminary ruling to the effect that Article 3(1) of Regulation No 2027/97
must be interpreted as meaning that the determination of the courts having territorial jurisdiction to hear an action for damages against an EU air carrier is to be governed by Article 33 of the Montreal Convention, including in the case of carriage within a Member State of the European Union.
Second question
34.      By its second question, the referring court asks, in essence, whether Article 33(1) of the Montreal Convention must be interpreted as meaning that ‘where [the carrier] has a place of business through which the contract has been made’ may include the principal and permanent residence of the passenger, when the contract was entered into online.
35.      As a preliminary point, I would recall that it is settled case-law that the provisions of an international treaty, such as the Montreal Convention, must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose, under general international law, which is binding on the European Union, as codified in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331) (‘the Vienna Convention’). (23) Article 32 of that
convention also provides that recourse may be had to supplementary means of interpretation, including the travaux préparatoires
of the treaty at issue and the circumstances of its conclusion. (24)
36.      Moreover, since the Court is but one of many jurisdictions throughout the world that are competent to interpret the Montreal Convention, and since the uniform application of that convention in all States Parties is an aim to be pursued, it is appropriate for the Court to duly take into account, and give the required weight, to the decisions handed down by the courts of those States Parties, without, however, being required to follow them without question. (25)
37.      According to the Court, Article 33(1) of the Montreal Convention, relating to jurisdiction, determines not only which State has legal jurisdiction to hear a case, but also the court which, among those sitting in that territory, may declare itself to have jurisdiction ratione loci, by means of specific connecting factors. The Court therefore considered that, by its very wording, Article 33(1) of the Montreal Convention must be regarded as governing not only the allocation of jurisdiction as between the States Parties to that convention, but also the allocation of territorial jurisdiction as between the courts of each of those States. (26)
38.      Of the four jurisdictions prescribed by Article 33(1) of the Montreal Convention, the third, which is ‘where [the carrier] has a place of business through which the contract has been made’, has raised a number of difficulties of interpretation, in particular as the aviation sector has adapted to the rapid growth of online ticketing and in the light of the increasing number of passengers purchasing their airline tickets exclusively in that way. In that regard, I note that national case-law is not consistent in its interpretation of that expression as regards whether it can be considered to cover the court of the place of the passenger’s principal and permanent residence.
39.      For example, a District Court in California (United States) held that an electronic ticket is normally issued where it is purchased and that a contract is ‘made’, within the meaning of Article 28 of the Warsaw Convention, in the place where the last act was done that was essential to a meeting of the minds of the parties, namely ‘the place where the acceptor’ expresses or manifests his or her assent. A foreign airline which has a partnership with a US air carrier may therefore be regarded as having, in essence, a place of business in the United States through which it can conclude contracts and be sued in California when the passenger has accepted the offer and performed the final act of payment either at his or her home in California by internet or at Los Angeles airport. (27)
40.      Similarly, as noted by the referring court, according to the Corte suprema di cassazione (Supreme Court of Cassation), when tickets are purchased electronically, the place of business through which the contract has been made must be identified irrespective of the physical location of the agencies, subsidiaries or branches of the air carrier concerned. It therefore recognises the jurisdiction of the Italian courts of the domicile of the passenger in the case of the direct online purchase of tickets for international carriage by air, on the ground that the domicile of the purchasers is the place where they became aware of the acceptance of the offer made when they sent the order and paid the consideration by electronic means. (28)
41.      By contrast, in Quebec (Canada), a court has already rejected the argument that the location of a personal computer, as the place where the airline tickets were purchased, may be ‘the place of business through which the contract has been made’. (29)
42.      The French courts also consider that the court of the domicile of the passenger does not have territorial jurisdiction to hear
an action for damages brought on the basis of the Montreal Convention, including when the airline ticket was purchased directly on the website of a French airline or through a travel agency operating exclusively on the internet. (30)
43.      Moreover, in Luxembourg, a juge de paix (Magistrate) systematically declares itself to have no territorial jurisdiction to hear an action for damages brought on the basis of the Montreal Convention in respect of material damage, when the airline’s registered office is located in another State, the claim relates to a flight with a destination in another State and ‘it is not apparent from the documents before the court that [the air carrier] has a place of business in Luxembourg through which the air transport contract has been made’, although the airline ticket was purchased online. (31)
44.      It is therefore clear that, at present, there is no established interpretation of the expression ‘where [the carrier] has a place of business through which the contract has been made’ among the States Parties to the Montreal Convention.
45.      It should be noted, however, that the travaux préparatoires
for the Montreal Convention show that there was much discussion concerning the addition of a ‘fifth jurisdiction’, corresponding to the domicile or principal and permanent residence of the passenger, to the four jurisdictions provided for in Article 28 of the Warsaw Convention. The inclusion of that additional jurisdiction was controversial and opposed by many delegations, and it was the insistence of the United States of America which made it possible for passengers to bring a legal action against the carrier in their State of origin, (32) albeit subject to certain conditions.
46.      Under those conditions, the jurisdiction of ‘the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence’, as provided for in Article 33(2) of the Montreal Convention, is applicable only if the claims for damages are based on the death or injury of the passenger. That jurisdiction also retains a connecting factor with air carriers. It is necessary that the carrier ‘operates services for the carriage of passengers by air’ to or from the territory of the State Party in which the passenger has his or her principal and permanent residence, ‘either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement’, and ‘conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement’. (33)
47.      However, as the Commission rightly stated at the hearing, at the time of the negotiations surrounding the adoption of the Montreal Convention, the States Parties were aware of the use of online booking. (34)
48.      In the light of the objections expressed by many delegations to the addition of a ‘fifth jurisdiction’ and in view of its scope limited to claims for personal injury suffered by passengers, and also in so far as the air carrier operates its services and carries out its activities, either directly or through a commercial agreement with another carrier, in the country concerned, it is not for the Court, in my view, to extend the scope of that jurisdiction to claims other than those expressly referred to in the wording of Article 33(2) of the Montreal Convention. (35)
49.      Moreover, the consequence of accepting that ‘the virtual space replicates the geographical space’ (36) of the principal and permanent residence of each passenger would be that the mere accessibility of an online sales platform would justify the jurisdiction of the courts of each passenger’s principal and permanent residence. Such an outcome appears to me to be contrary to the objectives of foreseeability and legal certainty in the designation of the courts having territorial jurisdiction pursued by Article 33 of the Montreal Convention. (37)
50.      I would add that, although such an interpretation does not offer the highest level of protection for passengers, air transport law is a special field of law, since passengers are traditionally regarded as belonging to a particular category of consumers. (38) Taking as an example, by way of analogy, 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, (39) the Court has clarified that passengers who bring an action for compensation against an air carrier on the basis of that regulation may bring their action either before the courts of the place where that carrier has its statutory seat, central administration or principal place of business, or before the courts of the place where the services were or should have been provided, that is to say the place of departure or the place of arrival of the aircraft. (40) The domicile or principal and permanent residence of the passenger does not therefore constitute a connecting factor for determining the court with jurisdiction in such cases.
51.      Air passengers should therefore be aware that, unless their principal and permanent residence coincides with the domicile of the airline, its principal place of business or the place of destination of the flight, they cannot rely on Article 33(1) of the Montreal Convention to bring an action before the courts of the place where their principal and permanent residence is located.
52.      The fact that the airline ticket was purchased through an independent online sales platform and not purchased directly on the airline’s website does not alter my proposed reading of Article 33(1) of the Montreal Convention.
53.      In the light of the foregoing, I propose that the Court answer the second question referred for a preliminary ruling to the effect that Article 33(1) of the Montreal Convention must be interpreted as meaning that ‘where [the carrier] has a place of business through which the contract has been made’ does not include the principal and permanent residence of the passenger,
if the contract was entered into online.
Third question
54.      By its third question, the referring court asks, in essence, whether Article 33(1) of the Montreal Convention must be interpreted as meaning that the place where the carrier has a place of business through which ‘the contract’ has been made refers to the place in which the principal obligation of carriage by air was contracted for and not the place in which the ancillary service, from which the carrier’s liability arises, was contracted for, if the latter place differs from the former.
55.      I would recall that it is clear from the wording of Article 33(1) of the Montreal Convention that the plaintiff may choose to bring legal proceedings against the air carrier concerned, in the territory of one of the States Parties, inter alia, before the court of the place where the carrier ‘has a place of business through which the contract has been made’. The very wording of that provision suggests that the concept of ‘contract’ refers more generally to the ‘air transport contract’, which may cover the international carriage of both passengers and baggage or cargo, in accordance with the scope of that convention.
56.      However, that article does not specify whether, in the case of the carriage of passengers by air accompanied by checked baggage, the contract for the carriage of passengers should be distinguished from the contract for the carriage of that baggage when the place where those contracts were concluded is not the same, or whether, as the Commission maintains, the checking in of baggage must systematically be regarded as a service ancillary to a single contract for the carriage of passengers. Moreover, no such clarification is provided in any other provision of the Montreal Convention or in the travaux préparatoires.
57.      However, whether the carriage of baggage is regarded as an ancillary service included in a single contract for the carriage of passengers by air (41) or as a contract which is in itself severable, separate from the contract for the carriage of passengers, (42) the same interpretation of Article 33(1) of the Montreal Convention seems to me to be necessary.
58.      In the context of the carriage of passengers by air, (43) the carriage of baggage is always ancillary to the carriage of the passenger concerned, the carriage of the passenger being a prerequisite for the carriage of baggage. (44) It is of little relevance whether that obligation is regarded as a ‘service’ ancillary to a single contract for the carriage of passengers by air or whether it can be classified as a ‘contract’ ancillary to the main contract for the carriage of passengers by air. An ancillary obligation or contract cannot be considered decisive in identifying where the carrier has a place of business through which ‘the contract has been made’. The principal obligation must take precedence, (45) so that the court seised must rely, in determining its jurisdiction, on the maxim accessorium sequitur principale. (46)
59.      The third jurisdiction provided for in Article 33(1) of the Montreal Convention, which is available to an applicant bringing an action for damages against an air carrier, refers therefore to the court of the place where the carrier has a place of business through which the main contract of carriage or the principal obligation was contracted for.
60.      In my view, that interpretation is consistent with the purpose of the Montreal Convention. Accordingly, it is clear from the preamble to that convention that the States Parties to that convention have intended not only to ‘[ensure the] protection of the interests of consumers in international carriage by air’, but also to ‘further [harmonise and codify] certain rules governing [such carriage, so as to achieve] an equitable balance of interests’. (47)
61.      The interpretation to the effect that, by the expression ‘place of business through which the contract has been made’, Article 33(1) of the Montreal Convention refers to the place of business through which the main contract or the principal obligation was contracted for is such as to contribute to the balancing of the interests of consumers and air carriers, by ensuring greater predictability and greater legal certainty. Such an interpretation prevents passengers who request the carriage of their baggage when they arrive at the airport, after having concluded a contract for the carriage of passengers by air at a different location, from being regarded as having a different choice of jurisdiction in the event of an action for damages resulting from damage to baggage, as compared with passengers who simultaneously purchased services relating to the carriage of the passenger and his or her baggage.
62.      I therefore propose that the Court answer the third question referred for a preliminary ruling to the effect that Article 33(1) of the Montreal Convention must be interpreted as meaning that the place where the carrier has a place of business through which ‘the contract’ has been made refers to the place in which the principal obligation of carriage by air was contracted for and not the place in which the ancillary service, from which the carrier’s liability arises, was contracted for, if the latter place differs from the former.
63.      I could conclude here, having proposed specific answers to the three questions referred to the Court for a preliminary ruling.
64.      However, the referring court stated on several occasions that, if the answers given by the Court were to rule out its jurisdiction as the court of the place of the passenger’s principal and permanent residence, it would be required to decline jurisdiction in favour of the courts of the province of Barcelona, which are the three other jurisdictions established in Article 33(1) of the Montreal Convention, namely the court of the domicile of the carrier, that of its principal place of business and that of the place of destination. Since I consider that ‘where [the carrier] has a place of business through which the contract has been made’ cannot be understood as referring to the passenger’s principal and permanent residence, a broader examination of the possible interpretation of that expression, in particular when the contract of carriage is concluded online, will be useful, in my view, in order to supplement the answers given to the referring court.
The interpretation of the expression ‘where [the carrier] has a place of business through which the contract has been made’
65.      In 1929, when the Warsaw Convention was adopted, purchases of airline tickets were transactions in which almost all tickets were purchased in person by the customer at the airline’s office. Although passengers could also, in some cases, purchase their tickets at the counter of another airline or of a third-party travel agent, which did not provide carriage and with which the airline providing that carriage had entered into a partnership, the offices in which tickets were purchased or collected had, as a matter of course, a specific geographical location.
66.      The commissioning of computers and access to the internet developed during the second half of the 20th century, enabling airlines to offer the booking of airline tickets on the internet by the end of that century. Although the drafters of the Montreal Convention were aware of that possibility, they were undoubtedly unable to foresee the extent of the impact which technological developments would have on the advent of online ticketing. They therefore deemed it appropriate to retain, in Article 33(1) of the Montreal Convention, the wording of Article 28(1) of the Warsaw Convention.
67.      However, the online purchase of tickets calls into question the traditional methods of determining the location of contracts for jurisdictional purposes. In most transactions involving electronic tickets, the airline and passenger are not located in the same jurisdiction, or even in the same country. The physical distance between the parties and the fact that the contract is concluded by means other than a traditional signature therefore raise the question of the precise determination of the place ‘where [the carrier] has a place of business through which the contract has been made’, for the purposes of the Montreal Convention.
68.      From a strictly literal point of view, the wording of Article 33(1) of the Montreal Convention is in essence identical to that of Article 28(1) of the Warsaw Convention. However, while the Warsaw Convention was authentic only in French, (48) the text of the Montreal Convention is authentic in French, English, Arabic, Chinese, Spanish and Russian. (49) It is permissible, at first sight, to raise the question whether there may be a discrepancy between the wording of the French version of the third jurisdiction prescribed by Article 33(1) of the Montreal Convention, on the one hand, and the wording of the English and Spanish versions, on the other. (50)
69.      While the French version refers to the ‘lieu où [le transporteur] possède un établissement par le soin duquel le contrat a été conclu’ (place ‘where [the carrier]
owns a place of business/an establishment through which the contract has been made’), the English version refers to the place ‘where it has a place of business through which the contract has been made’ and the Spanish version refers to the place ‘en que tiene una oficina por cuyo conducto se ha celebrado el contrato’ (where it has an office through which the contract has been made). (51)
70.      It is true that multilingualism and the linguistic diversity arising therefrom have generally led to the possibility that the name or designation of a specific element may differ in each language version, without this automatically reflecting a difference in meaning. (52)
71.      However, as I have already stated in point 38 of this Opinion, it is clear that the third jurisdiction prescribed by Article 33(1) of the Montreal Convention is not interpreted uniformly by the various national courts which have been called upon to apply it, including as regards what is meant by the expression ‘possède un établissement’ (‘has a place of business’) and its equivalents in the various language versions.
72.      Accordingly, the concept of ‘possession’ of an ‘établissement’ (‘having’ a ‘place of business’) has led to a restrictive interpretation of that jurisdiction by some French courts, which have excluded the offices of an agent, responsible for selling tickets, who is independent of the airline. (53) By contrast, other courts consider that those terms, or at least their linguistic equivalents, encompass a wide range of locations and include not only the branch or physical infrastructure of the airline through which the tickets were sold, but also locations managed by an independent agent where the ticket is sold and which carries on its activities on behalf of the airline. This applies, in particular, to courts in the United States, (54) Italy (55) and Norway. (56)
73.      I have doubts as to the intention of the drafters of the Montreal Convention in that regard. During the negotiations, was the aim to ensure that the terms chosen for the English and Spanish versions corresponded as closely as possible to their French equivalents, which were already included in the Warsaw Convention, or did a difference of opinion influence the choice of terms in the other language versions? (57)
74.      The travaux préparatoires for the Montreal Convention do not provide an unequivocal answer to that question. While it may be observed that the wording of the third jurisdiction prescribed by Article 33(1) of the English version of the Montreal Convention was amended during the negotiations, since the phrase ‘has an establishment by which the contract has been made’, which appeared in some proposals, was replaced by ‘has a place of business through which the contract has been made’, the reasons for that amendment are not clear from the travaux préparatoires. (58) The discussions surrounding the meaning of the term ‘establishment’ in English also focused specifically on the use of that term in the various proposals for the wording of the provision which would become Article 33(2) of the Montreal Convention. Although those discussions suggest that the concept of ‘establishment’ has a narrower meaning than that given to the concept of ‘place of business’, (59) the travaux préparatoires
do not make it possible to determine whether the final choice of wording in paragraph 1 was dictated by such considerations or what the situation was with respect to the concept of ‘place of business’ in the light of the concept of ‘établissement’ in the French version.
75.      As regards the interpretation of an international treaty, I would point out that, as stated in point 35 of this Opinion, the Vienna Convention provides, in Article 31(1)
thereof, that a treaty must be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Article 33, which concerns the interpretation of treaties authenticated in two or more languages, also states, in paragraph 3, that ‘the terms of the treaty are presumed to have the same meaning in each authentic text’. I would add that, in accordance with Article 33(4) of that convention, when a comparison of the authentic texts discloses a difference of meaning which the application of the other rules of interpretation does not remove, the meaning to be adopted is that which ‘best reconciles the texts, having regard to the object and purpose of the treaty’. (60)
76.      The wording of Article 28(1) of the Warsaw Convention, the substance of which was reproduced in Article 33(1) of the Montreal Convention, undeniably corresponded to the sales practices of the time, as referred to in point 65 of this Opinion. Of the four proposed jurisdictions, three refer to a place with which the air carrier has a close connection, namely its domicile, its principal place of business and the place where it has a place of business through which the contract has been made. In the context of an international air transport contract, it is unlikely that the carrier’s domicile or principal place of business will be located in the country in which the passenger makes his or her booking. As regards the fourth choice, relating to the place of destination, while it seems generally to be accepted that, in the case of a return flight, that place coincides with the place of departure, (61) the same does not apply to a one-way flight.
77.      In such circumstances, it has been argued that the third jurisdiction prescribed by Article 28(1) of the Warsaw Convention, that of ‘where [the carrier] has an establishment
by which the contract has been made’, allowed passengers to benefit from a more favourable choice of jurisdiction, because it is located in the State Party in which the ticket was purchased, provided that the airline carries on a commercial activity there. (62) Such a reading of the intention of the drafters of the Warsaw Convention, which aims to allow at least the bringing of an action before the courts of the country in which the ticket was purchased when the carrier has a commercial presence there, seems convincing to me. In my view, it must also be concluded that that intention was retained by the drafters of the Montreal Convention.
78.      While the Warsaw Convention was adopted to foster the development of the nascent airline industry, (63) it should be noted that the objectives of the Montreal Convention, as set out in the preamble to that convention, expressly include ensuring ‘protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution’, in particular in the event of accidents, by means of a system of strict liability for air carriers. The Montreal Convention thus put an end to the very favourable system of liability conferred on air carriers by the Warsaw Convention. Moreover, as I indicated in point 60 of this Opinion, the Montreal Convention also aimed to achieve an ‘equitable balance’ between the interests of passengers and those of carriers. However, as is apparent, in essence, from recital 7 of Regulation No 889/2002, the Montreal Convention reinforced the protection of passengers and their dependents and cannot be interpreted so as to weaken their protection in relation to the previous rules. (64)
79.      In a globalised world that has seen the development of the airline market, in which passengers are offered a seemingly endless choice of travel deals from numerous foreign airlines, and in which the vast majority of airline tickets are purchased on the internet, how should the expression ‘where [the carrier] has a place of business through which the contract has been made’ be interpreted when the contract of carriage is concluded online?
80.      As is apparent from points 45 to 53 of this Opinion, and while being aware that that view conflicts with some of the case-law, in particular that of the Italian and Spanish courts, I am of the view that, in the case of the purchase of an airline ticket online, the place ‘where [the carrier] has a place of business through which the contract has been made’ cannot be understood as referring to the place of domicile or principal and permanent residence of the passenger.
81.      Moreover, even if the air transport contract is concluded when the passenger confirms his or her intention to pay for the airline ticket on the website of the airline, a travel agency or an independent online sales platform, the place from which he or she makes such a booking is not, in my view, the place where the carrier has a place of business through which the contract is made. The increased mobility of individuals around the world and the development of internet access have resulted in a multiplication of the places where such a booking can be completed, which would multiply the number of conceivable courts, irrespective of the links between the passenger or the airline and those courts. It seems to me to be contrary to the objective of striking a balance between the interests of consumers and air carriers, and to the need to ensure greater predictability and greater legal certainty, to consider that, by simply creating a web page, airlines must accept the risk of being sued anywhere in the world. (65)
82.      Nor can the place of issue of the ticket correspond to ‘where [the carrier] has a place of business through which the contract has been made’. The same issue of multiple locations arises in the case of an electronic ticket sent to the passenger’s email address or mobile phone. Moreover, it follows from the Montreal Convention that the issuing of the ticket merely confirms the contractual relationship which has been formed between the parties. (66)
83.      At the hearing, the Commission suggested, with reservations, that, in the alternative, the place where the airline’s host server is located could be taken into account, since the passenger contacts that server electronically and his or her data is also stored there. However, it must be noted that the Corte suprema di cassazione (Supreme Court of Cassation) rejected that option on the ground that it would be unreasonable to burden the passenger with the task of determining the location of the server concerned. It therefore considered that, unlike in a situation in which tickets are purchased by telephone or on site from the airline, a passenger has no knowledge of the geographical location of the airline’s server at the time of accessing the website. It added that such an inquiry would lead to uncertain results and would be difficult to reconcile with the objectives of predictability pursued by the rules on jurisdiction. (67) I agree with that analysis.
84.      Should it be concluded that ‘where [the carrier] has a place of business through which the contract has been made’ cannot be geographically defined in the case of the purchase of airline tickets on the internet, with the result that the third jurisdiction prescribed by Article 33(1) of the Montreal Convention is not available to the passenger?
85.      I am not convinced that it should.
86.      If that were the case, passengers opting for a flight operated by a foreign airline would have their choice of jurisdiction limited to the courts of the domicile of the carrier, of its principal place of business or at the place of destination, and would find themselves in a situation in which they could bring an action against the air carrier only before foreign courts in the event of a dispute. Such a system would be likely essentially to benefit carriers, as it is highly flexible and significantly reduces the costs of processing bookings and tickets, while compelling passengers to bring legal proceedings in a foreign country with which they have no connection. (68)
87.      In my view, this creates an imbalance between passengers and air carriers which the drafters of the Montreal Convention intended to avoid.
88.      It is therefore not appropriate to limit the interpretation of Article 33(1) of that
convention to a purely literal interpretation, but instead a broad interpretation should be adopted – one which takes into account the current state of the aviation sector and its transformation as a result of technological advances, and one which is the most appropriate for achieving the aim and purpose of the Montreal Convention; in short, the interpretation of that provision should evolve, ‘in the light of present-day conditions’, including travel conditions, to paraphrase the classic formula of the ECtHR. (69)
89.      However, the essential element on which the third jurisdiction prescribed by Article 33(1) of the Montreal Convention is based, in the light of the intention underlying the adoption of that provision, as set out in point 77 of this Opinion, is, in my view, the permanent and recognisable establishment of an air carrier in a place in which the passenger can make contact with it. In today’s world, in view of the disappearance of physical offices owned or managed by, or on behalf of, air carriers and the dematerialisation of airline ticket purchases, interpreting that place as referring, in the case of a contract concluded online, to the airport where the air carrier, either directly or through a commercial agreement with another carrier, checks in passengers and their baggage could fulfil that intention and meet the objectives pursued by the Montreal Convention.
90.      An air carrier which operates, from an airport, transport services to and from countries will set up a number of counters and employ staff at that airport. That staff is also authorised to offer additional services to passengers in the name and on behalf of the airline. It is therefore a place of business in which the carrier carries out an activity which is closely linked to the sale of airline tickets. (70)
91.      Such an interpretation would make it possible to prevent, in many scenarios, the exercise of the passenger’s right of action from being limited to the courts of a foreign country with which he or she has no connection, as I pointed out in point 86 of this Opinion. It also meets the objective of striking a balance between the possibility for individuals to bring proceedings before their national courts and the protection of airlines against the obligation to defend themselves in countries in which they have no commercial presence. Moreover, it has the advantage of being consistent with the objectives of foreseeability and legal certainty. It can be argued that if an air carrier chooses to operate its transport services from a particular airport, it acknowledges that it is carrying on activities there and must accept being brought before the courts of the place where the airport in question is located. The carrier is not merely maintaining a web page accessible to all on the internet, but is actually offering air transport services from specific airports, with the result that it deliberately directs its activity towards the place concerned. By checking in passengers at a given airport, either itself or, where applicable, through another company to which it subcontracts that role, (71) it can therefore anticipate that legal proceedings may be brought against it in that place.
92.      I would add that such an interpretation is not inconsistent with the answer to the third question referred that I propose to present to the Court. Otherwise, an applicant who, as in the case in the main proceedings, has concluded an online contract for the carriage of passengers by air to which an ancillary contract for the carriage of baggage has been added at the airport, in the presence of the airline’s staff, would be unable to rely on the place ‘where [the carrier] has a place of business through which the contract has been made’, even though the dispute concerns the loss of that baggage.
93.      It must nevertheless be pointed out that the interpretation proposed in point 89 of this Opinion also implies giving a broad meaning to the words ‘through which the contract has been made’, since the purchase of the airline tickets in such circumstances was not formally made at counters managed in the name and on behalf of the airline.
94.      In that regard, although the Commission referred at the hearing to the Court’s judgment in Ryanair, (72) in which the Court stated that a passenger cannot rely on the location of an airline’s branch to bring proceedings before the courts of that place where there is nothing to establish that the air transport contract, which was concluded online, was concluded through that branch, it must be noted that that case concerned the interpretation of Article 7(5) of the Brussels
Ia Regulation in the context of a claim for compensation for a delayed flight, brought on the basis of Regulation No 261/2004. However, according to the settled case-law of the Court, one of the criteria for determining whether legal proceedings ‘aris[e] out of the operations of a branch’, within the meaning of that provision of the Brussels
Ia Regulation, is whether the dispute concerns either acts relating to the operations of that branch or commitments entered into by that branch on behalf of the parent body, if those commitments are to be performed in the State in which that branch is situated. (73)
95.      The case which gave rise to the judgment in
Ryanair is thus characterised by circumstances which differ from those relevant in the present case, in so far as the staff of an airline which has offices or counters at an airport is involved in the legal relationship between that airline and the passenger concerned.
96.      In the light of the foregoing, if it is nonetheless necessary to conclude that, in the case of online airline ticket purchases, it is no longer possible to interpret in concrete terms the third jurisdiction prescribed by Article 33(1) of the Montreal Convention, it must be hoped that the States Parties to that convention, or even the EU legislature, will address that issue and propose an update to the provisions on jurisdiction in such cases, in order to meet the challenges posed by recent technical developments.
97.      I would add that a more general examination concerning the courts to which EU passengers can apply would be particularly useful because, since the provisions of Regulation No 261/2004 and the provisions of the Montreal Convention relate to different contexts (74) and fall within different regulatory frameworks, (75) a passenger who is denied boarding or who experiences a long delay, as a result of which his or her baggage is lost, would potentially be required to bring an action against the carrier, on the basis of Regulation No 261/2004 and the Montreal Convention, respectively, before different courts. (76) That lack of uniformity, which cannot fail to cause confusion, seems to me to be particularly regrettable.
Conclusion
98.      In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Juzgado de Primera Instancia no 1 de Fuenlabrada (Court of First Instance No 1, Fuenlabrada, Spain) as follows:
(1)      Article 3(1) of Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air, as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002,
must be interpreted as meaning that
the determination of the courts having territorial jurisdiction to hear
an action for damages against an EU air carrier is to be governed by Article 33 of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded at Montreal on 28 May 1999, signed by the European Community on 9 December 1999, and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001 (‘the Montreal Convention’), including in the case of carriage within a Member State of the European Union.
(2)      Article 33(1) of the Montreal Convention
must be interpreted as meaning that
‘where [the carrier] has a place of business through which the contract has been made’ does not include the principal and permanent residence of the passenger, if
the contract was entered into online.
(3)      Article 33(1) of the Montreal Convention
must be interpreted as meaning that
the place where the carrier has a place of business through which ‘the contract’ has been made refers to the place in which the principal obligation of carriage by air was contracted for and not the place in which the ancillary service, from which the carrier’s liability arises, was contracted for, if the latter place differs from the former.
1      Original language: French.
2      Convention for the Unification of Certain Rules for International Carriage by Air, concluded at Montreal on 28 May 1999, signed by the European Community on 9 December 1999, and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38) (‘the Montreal Convention’).
3      Council Regulation of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air (OJ 1997 L 285, p. 1), as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 (OJ 2002 L 140, p. 2).
4      The referring court refers to the judgment of 7 November 2019, Guaitoli and Others (C‑213/18, EU:C:2019:927, paragraph 55; ‘the judgment in Guaitoli’).
5      Article 52(3) of Ley 1/2000 de Enjuiciamiento Civil (Code of Civil Procedure) (BOE No 7 of 8 January 2000, p. 575).
6      See Judgment No 500-32-700113-162 of 19 March 2018, Charbonneau v.
Scoot Pte Ltd. (Scoot Airlines), Court of Quebec (Canada) (2018 QCCQ 1645) (‘the judgment in
Charbonneau v. Scoot Pte Ltd. (Scoot Airlines)’).
7      The referring court refers to Order No 2132/2020 of 6 November 2020 of the Fourth Chamber of the Audiencia Provincial de Bizkaia (Provincial Court, Biscay, Spain) (ES:APBI:2020:1742A), and to Judgment No 286/2019 of 11 November 2019 of the Juzgado Mercantil no 4 de Barcelona (Commercial Court No 4, Barcelona, Spain) (ES:JMB:2019:10412), while stating that, in most court decisions, the courts have frequently concluded that the Spanish courts do not have international jurisdiction over international carriage carried out by non-Spanish airlines. It also refers to Order No 18257 of 8 July 2019 of the Combined Chambers of the Corte suprema di cassazione (Supreme Court of Cassation, Italy) and Order No 3561 of 13 February 2020 of the same court.
8      Under Article 28(1) of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929 (‘the Warsaw Convention’), ‘an action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the Court having jurisdiction where the carrier is ordinarily resident, or has his principal place of business, or has an establishment by which the contract has been made or before the Court having jurisdiction at the place of destination’.
9      See judgments of 30 April 1974, Haegeman (181/73, EU:C:1974:41, paragraph 5); of 30 September 1987, Demirel (12/86, EU:C:1987:400, paragraph 7); and of 19 December 2019, Niki Luftfahrt (C‑532/18, EU:C:2019:1127, paragraph 30 and the case-law cited).
10      See judgment of 3 September 2020, Niki Luftfahrt (C‑530/19, EU:C:2020:635, paragraph 23 and the case-law cited).
11      Emphasis added.
12      Emphasis added.
13      While the Court has already had occasion to state that Article 1 of Regulation No 2027/97 rendered the Montreal Convention applicable to carriage by air within a single Member State (see judgments of 26 February 2015, Wucher Helicopter and Euro-Aviation Versicherung (C‑6/14, EU:C:2015:122, paragraph 34), and of 9 September 2015, Prüller-Frey (C‑240/14, EU:C:2015:567, paragraph 28)), those cases concerned, respectively, the determination of the status of ‘passenger’ and ‘air carrier’, within the meaning of the Montreal Convention and that regulation, and not the choice of the court having jurisdiction.
14      Accordingly, recital 4 of Regulation No 2027/97, in its original version (and amended version), states that ‘… in the internal aviation market, the distinction between national and international transport has been eliminated; … it is therefore appropriate to have the same level and nature of liability in both national and international transport’.
15      That question was inter alia raised by Advocate General Szpunar in his Opinion in Prüller-Frey (C‑240/14, EU:C:2015:325, point 55). The Court ultimately did not rule
in fine on that question.
16      See Opinion of Advocate General Szpunar in Prüller-Frey (C‑240/14, EU:C:2015:325, points 57 to 61).
17      See recitals 1, 3, 7 and 15 of Regulation No 2027/97, in its original version.
18      See recital 6 of Regulation No 889/2002.
19      Proposal for a Council Regulation (EC) on air carrier liability in case of accidents, of 20 December 1995 (COM(95) 724 final) (OJ 1996 C 104, p. 18). Emphasis added.
20      See Common Position (EC) No 16/97 adopted by the Council on 24 February 1997 with a view to adopting Regulation (EC) No …/97, of …, on air carrier liability in the event of accidents (OJ 1997 C 123, p. 89).
21      Proposal for a Regulation of the European Parliament and of the Council amending Regulation [No 2027/97] on air carrier liability in the event of accidents (COM(2000) 340 final) (OJ 2000 C 337 E, p. 68), in particular paragraphs 13 and 14(ii). Emphasis added. See also Deleuze, N., « Introduction », La responsabilité du transport aérien de la Communauté : (droit positif et droit prospectif), Atelier national de reproduction des thèses, Lille, 2001, p. 27.
22      However, that extension applies only to the carriage of passengers and baggage by air, as such is the scope of Regulation No 2027/97, in its original version and amended version. See Cachard, O., Ben Hamida, W. and Dalmau, R., « Chapitre 3 – Le transport international aérien de marchandises », Droit des affaires internationales: commerce international et investissement, Librairie générale de droit et de jurisprudence-Lextenso, Paris, 4th ed., 2024, p. 468, No 867.
23      See judgment of 9 July 2020, Vueling Airlines (C‑86/19, EU:C:2020:538, paragraph 27 and the case-law cited).
24      See judgment of 16 October 2025, Iberia Líneas Aéreas de España and IATA España (Concept of ‘baggage’) (C‑218/24, EU:C:2025:794, paragraph 27 and the case-law cited).
25      See Opinion of Advocate General Emiliou in Austrian Airlines (First aid on board an aircraft) (C‑510/21, EU:C:2023:19, points 38 and 39).
26      See the judgment in
Guaitoli (paragraphs 50 to 55). It is interesting to note that the US courts have a different reading of Article 33(1) of the Montreal Convention. They consider that that provision, and Article 28(1) of the earlier Warsaw Convention, refers only to the jurisdiction of the State concerned and not to any districts or subdivisions which may exist within it, with the determination of the court having territorial jurisdiction being subject to domestic law. In that regard, see de Juglart, M., « Transport soumis au régime de responsabilité », Traité de droit aérien, Librairie générale de droit et de jurisprudence, Paris, Vol. 2, 2nd ed., 1992, pp. 439 and 440; Dettling-Ott, R., ‘Article 28’, Warsaw Convention: Commentary,  annotated by Giemulla, E., Schmid, R., Müller-Rostin, W. and Ehlers, P.N., Kluwer Law International, The Hague, Chapter 3, supplement 15 (January 2002), pp. 4 and 5, Nos 6 to 8; Dettling-Ott, R., ‘Article 33’, Convention for the Unification of Certain Rules for International Carriage by Air, Done at Montreal on 28 May 1999 (Montreal Convention of 1999), annotated by Giemulla, E., Schmid, R., Dettling-Ott, R. and Müller-Rostin, W., Kluwer Law International, The Netherlands, 2022, pp. 537 to 539, Nos 20 to 24.
27      See judgment of 7 July 2005, Polanski v. KLM Royal Dutch Airlines, United States District Court, S.D. California (378 F. Supplement 2d 1222); Tillery, R., ‘Airline Liability – The Warsaw Convention – United States District Court of the Southern District of California Holds That the Passenger May Bring Suit in the United States because It Is KLM’s Place of Business through Which the Contract Was Made: Polanski v. KLM Royal Dutch Airlines’, Journal of Air Law and Commerce, Vol. 71, No 1, 2006, pp. 70 and 71.
28      See Orders No 18257 of 8 July 2019 and No 3561 of 13 February 2020 of the Corte suprema di cassazione (Supreme Court of Cassation). Moreover, as the referring court rightly pointed out, some Spanish courts also consider that the place of conclusion of the contract ‘is the website through which travellers made their booking from their home, their place of work or any other public place with a wireless connection’, with the result that a passenger can bring proceedings against an air carrier before the courts of his or her domicile (see Order No 2132/2020 of 6 November 2020 of the Fourth Chamber of the Audiencia Provincial de Bizkaia (Provincial Court, Biscay) (ES:APBI:2020:1742A). See also Judgment No 286/2019 of 11 November 2019 of the Juzgado de lo Mercantil no 4 de Barcelona (Commercial Court No 4, Barcelona) (ES:JMB:2019:10412).
29      See the judgment in Charbonneau v. Scoot Pte Ltd. (Scoot Airlines); CMS Law-Now, ‘Aviation: e-ticketing jurisdiction under the Montreal Convention 1999’, Scotland, United Kingdom, 2018, available at: https://cms-lawnow.com/en/ealerts/2018/06/aviation-e-ticketing-jurisdiction-under-the-montreal-convention-1999.
30      See judgments No 09-17.372 of 23 June 2011, Cour de cassation (Court of Cassation, France), Civil Division, Civil Chamber 1, not published; No 18/05005 of 7 March 2019, cour d’appel de Toulouse (Court of Appeal, Toulouse, France); No 12/01346 of 24 September 2012, cour d’appel de Bordeaux (Court of Appeal, Bordeaux, France); and No 15/04926 of 8 April 2016, cour d’appel de Poitiers (Court of Appeal, Poitiers, France).
31      See decisions No 2830/2024 of 24 September 2024, RPL 336/23; No 774/2025 of 26 February 2025, RPL 285/24; and No 775/2025 of 26 February 2025, RPL 309/24, Juge de Paix (Magistrate, Luxembourg).
32      See International Civil Aviation Organisation, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, Canada, 10 to 28 May 1999, Vol. I, Minutes, Vol. II, Documents and Vol. III, Preparatory Materials (Doc 9775-DC/2); Deiró, G., ‘Jurisdiction and Conflicts of Laws in Contracts of International Carriage by Air’, Air & Space Law, Vol. 37, No 4/5, 2012, p. 346; Huggler, H., ‘Still Far From Home – How Personal Jurisdiction Doctrine Undercuts The Montreal Convention’s “Fifth Jurisdiction” For “Wandering Americans”’, Journal of Air Law and Commerce, Vol. 89, No 2, 2024, pp. 251 to 295; Derache, C., ‘Forum Shopping in Air Law: Analysis of the Situation in France from a Defence Lawyer’s Perspective’, Air & Space Law, Vol. 45, No 6, 2020, pp. 616 and 617.
33      By way of comparison, the protocol to amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929 and amended by the protocol done at The Hague on 28 September 1955, signed at Guatemala on 8 March 1971, provided, in Article XII, for a ‘fifth jurisdiction’ for actions for damages brought in respect of damage resulting not only from death, injury or delay of passengers, but also from the destruction, loss, damage or delay of baggage. That protocol never entered into force.
34      The United States of America had emphasised that the introduction of a ‘fifth basis of jurisdiction’ or ‘fifth jurisdiction’ would have facilitated the determination of the courts having jurisdiction, which had become more complex owing, in particular, to ‘electronic ticketing, internet booking, etc.’. See International Civil Aviation Organisation, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, Canada, 10 to 28 May 1999, Vol. II, Documents (Doc 9775-DC/2), p. 102.
35      That distinction has, in particular, had the result that, in principle, if passengers bring an action for personal injury before the courts of the State Party in which they have their principal and permanent residence at the time of the accident, they may have to bring another action for damage to or loss of baggage before a different court. See Tang, Z.S., ‘Aviation Jurisdiction and Protection of Passengers’, European Journal of Consumer Law – Revue européenne de droit de la consommation, No 2, 2011, p. 341.
36      Expression used by Advocate General Campos Sánchez-Bordona in his Opinion in Stichting Right to Consumer Justice and Stichting App Stores Claims (C‑34/24, EU:C:2025:212, point 60).
37      I also note that, ruling on Article 33(2) of the Montreal Convention in a case concerning personal injury suffered by a passenger, the United States Court of Appeals for the District of Columbia Circuit held, in essence, that the mere accessibility of an airline’s website in the territory of a district does not support the conclusion that that airline is analogous to a national undertaking operating in the territory in question (see judgment No 19-7034 of 19 January 2021, Erwin-Simpson v. AirAsia Berhad, United States Court of Appeals for the District of Columbia Circuit, available at: https://cases.justia.com/federal/appellate-courts/cadc/19-7034/19-7034-2021-01-19.pdf?ts= 1611072048. See also memorandum opinion of 22 March 2019, by Judge Christopher R. Cooper, in the case which gave rise to the judgment in Erwin-Simpson v. AirAsia Berhad, D.C. Circuit (375 F. Supplement 3d 8, D.C. Cir. 2019), available at: https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2018cv00083/192721/17/, in which he stated that ‘embracing the theory that a website accessible to Americans suffices for subject matter jurisdiction would stretch the fifth jurisdiction too far’. Such reasoning also applies to the third jurisdiction prescribed by Article 33(1) of the Montreal Convention).
38      Under EU law, the application of the rules on jurisdiction means that consumers can, in principle, bring proceedings before the court of their domicile. That is apparent from Article 18(1) 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 (OJ 2012 L 351, p. 1) (‘the Brussels Ia Regulation’), which provides that ‘a consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled’ (formerly Article 16(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) (‘the Brussels I Regulation’)). However, in accordance with Article 17(3) of the Brussels Ia Regulation (formerly Article 15(3) of the Brussels I Regulation), that provision, which appears in Section 4 on ‘Jurisdiction over consumer contracts’, ‘shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation’. See, inter alia, Cachard, O., « Le transport international aérien de passager », Recueil des cours de l’Académie de droit international de La Haye, Vol. 373, 2014, Martinus Nijhoff Publishers, Leiden/Boston, 2015, p. 98, No 139.
39      OJ 2004 L 46, p. 1.
40      The Court stated that the rules on international jurisdiction applicable to claims introduced on the basis of Regulation No 261/2004 must be examined in the light of the Brussels Ia Regulation (formerly the Brussels I Regulation), so that the court having jurisdiction will be determined on the basis of the general rule of jurisdiction laid down in Article 4 of the Brussels Ia Regulation (formerly Article 2 of the Brussels I Regulation), which confers jurisdiction on the courts of the Member State in which the defendant is domiciled, and the rule of special jurisdiction based on the place of performance of the obligation which forms the basis of the application, contained in Article 7(1)(b) of the Brussels Ia Regulation (formerly Article 5(1)(b) of the Brussels I Regulation) (see judgments of 9 July 2009, Rehder (C‑204/08, EU:C:2009:439, paragraphs 28 to 32 and 41 to 43), and of 10 March 2016, Flight Refund (C‑94/14, EU:C:2016:148, paragraph 46); Clavel, S., « Le passager aérien est-il un consommateur comme les autres? Réflexions inspirées par le droit à l’accès effectif à un tribunal », Études à la mémoire de Philippe Neau-Leduc: le juriste dans la cité, Librairie générale de droit et de jurisprudence-Lextenso, Issy-les-Moulineaux, 2018, p. 235, and Tang, Z.S., footnote 35, op. cit., p. 349).
41      According to Advocate General Bot, the performance of a contract of carriage by air involves numerous services, including booking, boarding and receiving passengers on board the aircraft, the carriage of those passengers and their baggage from the point of departure to the point of destination, taking care of the passengers during the flight, disembarkation of the passengers and, lastly, the delivery of their baggage (see Opinion of Advocate General Bot in Vueling Airlines (C‑487/12, EU:C:2014:27, point 46)).
42      In the present case, it is apparent from the documents in the file and from the wording of the third question referred that the baggage check-in contract concluded at Madrid airport is considered to be ancillary to the main contract for the carriage of passengers. The same is true in France (see Article L6421-1 of the code des transports (Transport Code): ‘a contract for the carriage of passengers is evidenced by the issuing of an individual or collective ticket. A contract for the carriage of baggage is evidenced by the issuing of an identification tag for each item of checked baggage’).
43      In the present case, the question of which court has jurisdiction to hear an action for damages against a carrier of baggage alone, without a passenger accompanying that baggage, does not arise.
44      In principle, if a passenger does not actually board an aircraft, his or her checked baggage is removed from the hold before the flight.
45      I would point out that this does not mean that, where a dispute with an air carrier involves several claims based on different legal instruments, such as Regulation No 261/2004, on the one hand, and the Montreal Convention, on the other, it would be appropriate for the court seised to determine the principal obligation among several obligations at issue in order to establish its jurisdiction. I would recall that the Court has already stated that the rights and the rules on jurisdiction based on the provisions of Regulation No 261/2004 and the provisions of the Montreal Convention, respectively, fall within distinct regulatory frameworks (see, to that effect, the judgment in
Guaitoli, paragraphs 34 to 36).
46      See, to that effect and by analogy, judgments of 14 July 2016, Granarolo (C‑196/15, EU:C:2016:559, paragraph 33 and the case-law cited); of 8 March 2018, Saey Home & Garden (C‑64/17, EU:C:2018:173, paragraph 36); and of 28 November 2024, VariusSystems (C‑526/23, EU:C:2024:985, paragraph 20).
47      See third paragraph and fifth paragraph of the preamble to the Montreal Convention.
48      According to Article 36 of the Warsaw Convention: ‘This Convention is drawn up in French in a single copy’. The same was true of the Treaty of Paris of 18 April 1951 establishing the European Coal and Steel Community. See Pescatore, P., « Sur les dérives linguistiques de l’Union européenne et quelques moyens de s’en sortir », Études de droit communautaire européen 1962-2007: avec une liste bibliographique, Bruylant, Brussels, 2008, p. 997.
49      See the final provisions of the Montreal Convention: ‘Done at Montreal on the 28th day of May of the year one thousand nine hundred and ninety-nine in the English, Arabic, Chinese, French, Russian and Spanish languages, all texts being equally authentic …’.
50      My comments are restricted to the Spanish, French and English versions, since I am not in a position to grasp the subtleties which may be apparent from the Arabic, Chinese and Russian versions.
51      Emphasis added.
52      See Papaux, A. and Samson, R., ‘1969 Vienna Convention – Article 33. Interpretation of treaties authenticated in two or more languages’, The Vienna Conventions on the Law of Treaties: A Commentary, Corten, O. and Klein, P. (eds), Oxford University Press, 2011, p. 868. See also, by analogy, Opinion of Advocate General Tanchev in Tesco Stores ČR (C‑881/19, EU:C:2021:830, point 44).
53      See Dettling-Ott, R., footnote 26, op. cit., p. 542, who refers to the judgment of 2 March 1962, Herfroy v. Artop and Companhia de Seguros Imperio, cour d’appel de Paris (Court of Appeal, Paris, France), R.F.D.A., 1962, p. 177, and the judgment in Orchestre Symphonique de Vienne v. TWA, tribunal de grande instance de la Seine (Regional Court, Seine, France), R.F.D.A., 1972, p. 202. See also judgment No 14/00969 of 1 July 2014, cour d’appel de Paris (Court of Appeal, Paris).
54      See judgments of 18 December 1956, Berner v. United Airlines, Appellate Division of the Supreme Court of New York, First Department (United States) (3 A.D.2d 9 – 157 N.Y.S.2d 884), available at: https://www.casemine.com/judgement/us/59149ed4add7b04934660a24/amp, and of 13 May 1966, Eck v. United Arab Airlines, Inc., United States Court of Appeals, Second Circuit (360 F.2d 804), available at: https://law.justia.com/cases/federal/appellate-courts/F2/360/804/390725/ (‘the judgment in
Eck v. United Arab Airlines, Inc’); de Juglart, M., footnote 26, op. cit., p. 443; Dettling-Ott, R., footnote 26, op. cit., p. 8. See also Cachard, O., footnote 38, op. cit., pp. 95 and 96, No 134, who notes that that interpretation is established by the case-law, particularly in Germany, Switzerland and the United States.
55      The Corte suprema di cassazione (Supreme Court of Cassation) considers that the fact that a travel agency is authorised to issue a ticket on behalf of an airline supports the inference, on the basis of a mere common presumption, that ‘that agency has been authorised by the carrier to issue tickets and therefore constitutes a ticketing office of the carrier itself’, pursuant to a specific bilateral agreement, which may be characterised as a manager, agent or subcontractor of the air carrier’s services. Accordingly, in order to be able to assert that the carrier has a place of business through which the contract has been made, within the meaning of Article 33 of the Montreal Convention, ‘it is necessary for the carrier to have its own organisation in Italy (for example, a ticketing office) or an entity closely linked to it by contract (for example, a manager/agent), through which it distributes airline tickets’ (unofficial translation) (see Order No 24632 of 5 November 2020, Corte suprema di cassazione, sez. VI. civ. (Supreme Court of Cassation, Italy, Civil Section VI) (Rv. 659913-02, points 6.3.2. and 6.3.3.), available at: https://www.fog.it/giurisprud/ca-20-24632.pdf; Dominelli, S., ‘The Italian Supreme Court on Competence and Jurisdiction in Flight Cancellation Claims’, 12 November 2020, published on the website Conflict of Laws.net – Views and News in Private International Law, available at: https://conflictoflaws.net/2020/the-italian-supreme-court-on-competence-and-jurisdiction-in-flight-cancellation-claims/.
56      See Fuglevåg, I., ‘An important Court decision regarding transportation of seafood by air from Norway – Article 33 of the Montreal Convention’, 3 May 2024, published on the Simonsen Vogtwiig website, available at: https://svw.no/en/insights/an-important-court-decision-regarding-transportation-of-seafood-by-air-from-norway. It is apparent from that article that the Norwegian courts follow the same approach as the Italian courts and deliberately distance themselves from the approach taken by the French courts.
57      See, by analogy, with regard to the Treaties of the European Economic Community, Lipstein, K., ‘Some Practical Comparative Law: The Interpretation of Multi-Lingual Treaties With Special Regard to the EEC Treaties’, Tulane Law Review, Vol. 48, No 4, 1973 and 1974, pp. 907 to 915.
58      The concept of ‘establishment’ appeared more specifically in the translation submitted by the United Kingdom, while the term ‘place of business’ was proposed by the United States of America. See International Civil Aviation Organisation, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, Canada, 10 to 28 May 1999, Vol. III, Preparatory Materials (Doc 9775-DC/2), Attachment D, p. 337.
59      See International Civil Aviation Organisation, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, Canada, 10 to 28 May 1999, Vol. III, Preparatory Materials (Doc 9775-DC/2). During the negotiations surrounding the addition of a fifth jurisdiction relating to claims for personal injury suffered by passengers, several terms were initially proposed. The aim was to allow passengers to choose the jurisdiction ‘in which the carrier [has a commercial presence] [has an establishment] [operates a service]’ (C-WP/10470 Attachment, A-12, p. 42) or ‘in which the carrier has an establishment’  (emphasis added). A paragraph 3, aimed at defining the concept of ‘establishment’, was also proposed: ‘For the purposes of paragraph 2 of this Article, “establishment” means premises leased or owned by the carrier concerned from which, [through its own managerial and administrative employees,] it conducts its business of carriage by air’ (emphasis added) (C-WP/10613 Attachment, A-13, p. 99, and Attachment D, D-13, p. 219). Some discussions highlighted the strict meaning of the definition of the term ‘establishment’ in the light of that paragraph 2, as well as the problem of limiting the definition to that paragraph, when the same concept also appeared in paragraph 1. Reference was also made to the broader meaning given to that concept by the United States of America (see Attachment E, Discussion material, p. 319, and Report of the fourth meeting of the secretariat study group on the modernisation of the ‘Warsaw System’ (Montreal, 26 to 27 January 1998), p. 326, points 4.16 and 4.17, and p. 328, point 4.28). The concept of ‘establishment’ in paragraph 2 was then replaced by the term ‘place of business’ which has become
the current authentic wording, and paragraph 3, which defined the concept of ‘establishment’, was deleted (emphasis added) (‘Article 27 – Jurisdiction’, Attachment C, p. 336).
60      For further information on the interpretation of international treaties, see Prieto Ramos, F. and Pacho Aljanati, L., ‘Comparative Interpretation of Multilingual Law in International Courts: Patterns and Implications for Translation’, Institutional Translation for International Governance: Enhancing Quality in Multilingual Legal Communication, Bloomsbury, London, 2018, pp. 181 to 201; Villiger, M.E., ‘Section 3. Interpretation of Treaties’, Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, Leiden/Boston, 2009, pp. 415 to 462; Pacho Aljanati, L., ‘Multilingual EU Law: A New Way of Thinking’, European Journal of Legal Studies, Special Issue, Autumn 2018, pp. 5 to 46; Daillier, P. and Pellet, A., Droit international public (Nguyen Quoc Dinh), Librairie Générale de Droit et de Jurisprudence, Paris, 2002, 7th ed., pp. 253 to 266, Nos 162 to 170; Verhoeven, J., Droit International Public, Larcier, Brussels, 2000, pp. 421 to 423. The latter author also states that ‘what is important lies not in the “accuracy” which [the interpretation] is presumed to ensure; it concerns only the rational justification that it provides for the meaning which is actually given to the treaty in the specific situation in which its scope has been called into question’ (p. 422). See, also, ECtHR, 10 December 2007, Stoll v. Switzerland [GC] (CE:ECHR:2007:1210JUD006969801).
61      See Opinion of Advocate General Saugmandsgaard Øe in Guaitoli and Others (C‑213/18, EU:C:2019:524, footnote 38); Dettling-Ott, R., footnote 26, op. cit., p. 546; Bernigaud, S. et al., Droit du transport de passagers. Droits français et de l’Union européenne, Larcier, Collection Paradigme, Brussels, 2016, p. 251; Letacq, F., ‘Fasc. 460: Transport aérien. – Sources du droit applicable. – Titre de transport. – Responsabilité. Action en réparation’, JurisClasseur Civil Code: Art. 1240 to 1245-17, 11 April 2019, §§ 167 and 168. The latter author points out that not all courts follow that approach, however, with some appearing to take into account the destination of each individual flight.
62      See the judgment in
Eck v. United Arab Airlines, Inc.: ‘Article 28(1)’s third provision … clearly manifests the framers’ intention to permit, at least in some cases, the maintenance of suit in the courts of the country where the ticket was purchased. … The central purpose of Article 28(1)’s third provision was to make venue always proper in the country where the ticket was purchased – assuming it is a High Contracting Party – if, but only if, the defendant has a place of business there’.
63      See Correia, V., « Section 1 . Le dépassement du droit international de l’aviation civile en matière de droits des passagers », L’Union européenne et le droit international de l’aviation civile, Bruylant, Brussels, 1st ed., 2014, p. 768.
64      See recital 7 of Regulation No 889/2002, according to which: ‘This Regulation and the Montreal Convention reinforce the protection of passengers and their dependants and cannot be interpreted so as to weaken their protection in relation to the present legislation on the date of adoption of this Regulation’. See, also, Opinion of Advocate General Emiliou in Austrian Airlines (First aid on board an aircraft) (C‑510/21, EU:C:2023:19, point 46), and Deleuze, N., footnote 21, op. cit., pp. 9 to 11.
65      In its judgment of 28 November 2024, VariusSystems (C‑526/23, EU:C:2024:985), the Court turned its attention to the determination of the ‘place of performance’, within the meaning of the second indent of Article 7(1)(b) of the Brussels Ia Regulation, in respect of a contract for the supply of software, performed online. After stating that it was necessary to determine the place of the main provision of services, the Court considered that that is the place where the customer accesses the software, that is to say where he or she consults and uses it, and that, where that software is to be used in different places, that place is the customer’s domicile. For the reasons set out in points 45 to 52 and 80 of this Opinion, I am of the view that such reasoning cannot simply be applied to the online sale of airline tickets.
66      Article 3(2) of the Warsaw Convention, the substance of which is reproduced in Article 3(5) of the Montreal Convention, establishes that the absence of a ticket or other form of transport document does not affect the existence or the validity of the contract of carriage. It follows that the ticket itself cannot be regarded as constituting the contract. See Tillery, R., footnote 27, op. cit., p. 95; Lyck, P. and Dornic, B.A., ‘Electronic Ticketing under the Warsaw Convention: The Risk of ‘Going Ticketless’ on International Flights’, Air & Space Law, Vol. XXII, No 1, 1997, p. 16.
67      See Orders No 18257 of 8 July 2019 and No 3561 of 13 February 2020, Corte suprema di cassazione (Supreme Court of Cassation).
68      See Lyck, P. and Dornic, B.A., footnote 66, op. cit., p. 26.
69      See, inter alia, ECtHR, 28 July 1999, Selmouni v. France (CE:ECHR:1999:0728JUD002580394, § 101 and the case-law cited). The Court has also already given such an interpretation, referring to the need to place every provision of Community law in its context and to interpret it in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied (see judgment of 6 October 1982, Cilfit (283/81, EU:C:1982:335, paragraph 20)). The European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as a ‘living instrument’ to be interpreted in the light of present-day conditions, is, moreover, the central theme chosen for the collection of Mélanges en l’honneur de Christos L. Rozakis, La Convention européenne des droits de l’homme, un instrument vivant, Spielmann, D., Tsirli, M. and Voyatzis, P. (eds), Bruylant, Brussels, 2011, back cover.
70      See Cachard, O., footnote 38, op. cit., pp. 95 and 96, No 134, who considers that ‘since the concept of establishment is economic, a broad interpretation of that term must be proposed, covering situations in which the carrier has a long-term commercial presence through the physical infrastructure of an agent with a certain degree of permanence’. However, he adds that ‘it must still be verified whether the contract of carriage in question was indeed concluded through that establishment …’.
I note, however, that, in accordance with a strict interpretation of the third jurisdiction prescribed by Article 33(1) of the Montreal Convention, the cour d’appel de Limoges (Court of Appeal, Limoges, France), Civil Chamber, in its judgment No 15/00345 of 11 February 2016, held that the fact that an airline operates a regular route between Limoges and Lyon (France) and advertises such flights at Limoges airport is not sufficient to characterise Limoges as a place where that airline has an establishment. I propose that the Court depart from that interpretation.
71      Here I depart from the interpretation adopted by the French courts and note that this criterion was adopted, inter alia, by the Corte suprema di cassazione (Supreme Court of Cassation), as stated in footnote 55 to this Opinion, and by the Court of Appeals, New York, in the judgment in Eck v. United Arab Airlines, Inc.
72      Judgment of 11 April 2019 (C‑464/18, EU:C:2019:311; ‘the judgment in Ryanair’).
73      See the judgment in
Ryanair (paragraphs 32 to 36). The Court also noted that the services provided by the branch in question appeared to relate to tax matters.
74      See judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771, paragraph 32 and the case-law cited).
75      See, to that effect, judgment of 9 July 2009, Rehder (C‑204/08, EU:C:2009:439, paragraph 27), and the judgment in
Guaitoli (paragraphs 34 to 36).
76      Neither the Warsaw Convention nor the Montreal Convention has retained a ground of jurisdiction based on the place of performance of the obligation which forms the basis of the application, as set out in Article 7(1)(b) of the Brussels Ia Regulation (formerly Article 5(1)(b) of the Brussels I Regulation). See Cachard, O., footnote 38, op. cit., p. 93, No 127, who considers that this results from the fact that, ‘by definition, the contract is performed successively in the State of departure, the States overflown, the high seas and the State of destination. However, as is traditional in transport law, it can be difficult to localise damage, in particular damage caused to baggage’. I add that, in principle, an international element is required for the Brussels Ia Regulation to apply. See Quéguiner, J-S., « Variations sur la condition d’internationalité et l’internationalisation volontaire des contrats internes », in Avout, L., et al., « Droit International privé de l’Union européenne (2024) », Journal du droit international (Clunet), LexisNexis, Paris, No 4, chronique No 9, October 2025,
pp. 1491 to 1502.