Peter Rehder v Air Baltic Corporation.
Date: 2009-07-09
19. Mr Rehder, who resides in Munich, booked a flight from Munich to Vilnius with Air Baltic, the registered office of which is in Riga (Latvia). The distance between Munich and Villnius is slightly less that 1 500 kilometres. Approximately 30 minutes before the scheduled time of departure from Munich, passengers were informed that their flight had been cancelled. After his booking had been changed by Air Baltic, the applicant took a flight via Copenhagen to Vilnius, where he arrived more than six hours after the flight which he had initially booked should have landed.
27. In that regard, the right which the applicant in the main proceedings relies on in the present case, which is based on Article 7 of Regulation No 261/2004, is a passenger’s right to a standardised and lump-sum payment following the cancellation of a flight, a right which is independent of compensation for damage in the context of Article 19 of the Montreal Convention (see Case C‑344/04 IATA and ELFAA  [2006] ECR I‑403, paragraphs 43 to 46). The rights based respectively on those provisions of Regulation No 261/2004 and of the Montreal Convention accordingly fall within different regulatory frameworks.
28. It follows that, since it was introduced on the basis of Regulation No 261/2004 alone, the claim in the main proceedings must be examined in the light of Regulation No 44/2001.
29. By its questions, which it is appropriate to examine together, the referring court essentially asks the Court to specify how the words ‘the place in a Member State where, under the contract, the services were provided or should have been provided’ in the second indent of Article 5(1)(b) of Regulation No 44/2001 are to be interpreted in the case of the air transport of persons from one Member State to another, in the context of a claim for compensation based on Regulation No 261/2004.
30. In reality, by those questions, the Court is being asked whether, in the case of a provision of services such as those at issue in the main proceedings, the same interpretation should be given to those words as that which the Court gave to the first indent of Article 5(1)(b) in Color Drack,  in the case where there are several places of delivery within a single Member State.
31. In paragraph 18 of Color Drack , in order to answer the question posed, the Court based itself on the origins, objectives and scheme of Regulation No 44/2001.
32. In that context, the Court noted, first, that the rule of special jurisdiction set out in Article 5(1) of Regulation No 44/2001 in matters relating to a contract, which complements the rule that jurisdiction is generally based on the defendant’s domicile, reflects an objective of proximity and the reason for that rule is the existence of a close link between the contract and the court called upon to hear and determine the case ( Color Drack , paragraph 22).
33. The Court next noted that, regarding the place of performance of the obligations arising from contracts for the sale of goods, Regulation No 44/2001, in the first indent of Article 5(1)(b), defines that criterion of a link autonomously, in order to reinforce the objectives of unification of the rules of jurisdiction and predictability. Accordingly, in such cases the place of delivery of the goods is established as the autonomous linking factor to apply to all claims founded on one and the same contract of sale ( Color Drack , paragraphs 24 and 26).
34. In the light of the objectives of proximity and predictability, the Court held that the rule set out in the first indent of Article 5(1)(b) of Regulation No 44/2001 is also applicable where there are several places of delivery of goods within a single Member State, since one court must have jurisdiction to hear all the claims arising out of the contract ( Color Drack,  paragraphs 36 and 38).
35. Finally, where there are several places of delivery of the goods in a single Member State, the Court took the view that the place with the closest linking factor between the contract and the court having jurisdiction is that of the principal delivery, which must be determined on the basis of economic criteria, and that, if it is not possible to determine the place of the principal delivery, each of the places of delivery has a sufficiently close link of proximity to the material elements of the dispute, in which case the applicant may sue the defendant in the court for the place of delivery of his choice ( Color Drack , paragraphs 40 and 42).
36. The factors on which the Court based itself in order to arrive at the interpretation set out in Color Drack  are also valid with regard to contracts for the provision of services, including the cases where such provision is not effected in one single Member State. The rules of special jurisdiction provided for by Regulation No 44/2001 for contracts for the sale of goods and the provision of services have the same origin, pursue the same objectives and occupy the same place in the scheme established by that regulation.
37. Where the services in question are provided at several places in different Member States, a differentiated approach cannot be applied to the objectives of proximity and predictability, which are pursued by the centralisation of jurisdiction in the place of the provision of services under the contract at issue and by the determination of sole jurisdiction for all claims arising out of that contract. Apart from the fact that there is no basis for it in the provisions of Regulation No 44/2001, such a differentiated approach would contradict the objectives for which it was adopted, which, through the unification of the rules governing conflict of jurisdiction in civil and commercial matters, contributes to the development of an area of freedom, security and justice, as well as to the proper functioning of the internal market within the Community (see recitals 1 and 2 in the preamble to Regulation No 44/2001).
38. Consequently, where there are several places at which services are provided in different Member States, it is also necessary to identify the place with the closest linking factor between the contract in question and the court having jurisdiction, in particular the place where, pursuant to that contract, the main provision of services is to be carried out.
40. The services the provision of which corresponds to the performance of obligations arising from a contract to transport passengers by air are the checking-in and boarding of passengers, the on-board reception of those passengers at the place of take-off agreed in the transport contract in question, the departure of the aircraft at the scheduled time, the transport of the passengers and their luggage from the place of departure to the place of arrival, the care of passengers during the flight, and, finally, the disembarkation of the passengers in conditions of safety at the place of landing and at the time scheduled in that contract. From that point of view, places where the aircraft may stop over also do not have a sufficient link to the essential nature of the services resulting from that contract.
41. The only places which have a direct link to those services, provided in performance of obligations linked to the subject-matter of the contract, are those of the departure and arrival of the aircraft, since the words ‘places of departure and arrival’ must be understood as agreed in the contract of carriage in question, made with one sole airline which is the operating carrier.
43. In those circumstances, both the place of arrival and the place of departure of the aircraft must be considered, in the same respect, as the place of provision of the services which are the subject of an air transport contract.
44. Each of those two places has a sufficiently close link of proximity to the material elements of the dispute and, accordingly, the close connection required by the rules of special jurisdiction set out in Article 5(1) of Regulation No 44/2001. Accordingly, a person claiming compensation on the basis of Regulation No 261/2004 may sue, as a matter of choice which he must make, the defendant in the court in whose jurisdiction one of those places may be found on the basis of the second indent of Article 5(1)(b) of Regulation No 44/2001.
45. Such a choice granted to the applicant, apart from respecting the criterion of proximity, also satisfies the requirement of predictability, in so far as it allows the applicant, as well as the defendant, easily to identify the courts before which proceedings may be brought. What is more, it is consistent with the objective of legal certainty, since the applicant’s choice is limited to two possible judicial fora within the framework of the second indent of Article 5(1)(b) of Regulation No 44/2001. It must also be borne in mind that the applicant retains the option of bringing the matter before the courts of the defendant’s domicile, as provided for by Article 2(1) of Regulation No 44/2001, that is to say, in the circumstances of the present case, pursuant to Article 60(1) of that regulation, the court with the jurisdictional district of which the air carrier has its registered office, central administration or principal place of business, which is in conformity with Article 33 of the Montreal Convention.
46. Furthermore, such a choice for an applicant, even when it concerns courts situated in different Member States, is also recognised by the Court’s established case-law, in the context of the special jurisdiction in tort, delict or quasi-delict, provided for in Article 5(3) of the Brussels Convention and also reiterated in Article 5(3) of Regulation No 44/2001 (see, inter alia, Case 21/76 Bier ‘Mines de potasse d’Alsace’ [1976] ECR 1735, paragraphs 24 and 25, and Case C-168/02 Kronhofer  [2004] ECR I-6009, paragraph 16 and the case-law cited).
47. Regard being had to all of the foregoing considerations, the answer to the questions referred is that the second indent of Article 5(1)(b) of Regulation No 44/2001 must be interpreted as meaning that, in the case of air transport of passengers from one Member State to another Member State, carried out on the basis of a contract with only one airline, which is the operating carrier, the court having jurisdiction to deal with a claim for compensation founded on that transport contract and on Regulation No 261/2004 is that, at the applicant’s choice, which has territorial jurisdiction over the place of departure or place of arrival of the aircraft, as those places are agreed in that contract.
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