Ryanair DAC v DelayFix.
Date: 2020-11-18
31


It is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court of Justice by way of a reference for a preliminary ruling unless a case is pending before it in which it is called upon to give a decision which is capable of taking account of the preliminary ruling. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (see, to that effect, judgment of 27 February 2014, Pohotovosť, C‑470/12, EU:C:2014:101, paragraphs 28 and 29 and the case-law cited.)
33


Since the procedure created by Article 267 TFEU is an instrument of cooperation between the Court and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them, such an indication by a national court is binding on the Court and cannot, in principle, be called into question by the parties to the main proceedings (judgment of 27 February 2014, Pohotovosť, C‑470/12, EU:C:2014:101, paragraph 30 and the case-law cited).
38


In accordance with the settled case-law, the concept of a ‘jurisdiction clause’ must be interpreted as an independent concept of EU law and as giving full effect to the principle of freedom of choice on which Article 25(1) of Regulation No 1215/2012 is based (see, to that effect, judgments of 10 March 1992, Powell Duffryn, C‑214/89, EU:C:1992:115, paragraph 14; of 9 December 2003, Gasser, C‑116/02, EU:C:2003:657, paragraph 51 and the case-law cited; and of 7 February 2013, Refcomp, C‑543/10, EU:C:2013:62, paragraphs 22 and 40 and the case-law cited).
39


In particular, the fact that the contract in question was concluded online is not, in itself, able to invalidate such a clause, subject to compliance with conditions set out in the case-law of the Court regarding, inter alia, the creation of a durable record of the text in which that clause is found (see, to that effect, judgment of 21 May 2015, El Majdoub, C‑322/14, EU:C:2015:334, paragraph 40).
40


Furthermore, Article 25(1) of Regulation No 1215/2012 does not specify whether a jurisdiction clause may be assigned, beyond the circle of the parties to a contract, to a third party, who is a party to a subsequent contract and successor, in whole or in part, to the rights and to the obligations of one of the parties to the initial contract (judgments of 7 February 2013, Refcomp, C‑543/10, EU:C:2013:62, paragraph 25, and of 20 April 2016, Profit Investment SIM, C‑366/13, EU:C:2016:282, paragraph 23).
41


Thus, the court before which the matter is brought has the duty of examining, in limine litis, whether the jurisdiction clause was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated, the purpose of the requirements as to form imposed by Article 25(1) of Regulation No 1215/2012 being, in that regard, to ensure that consensus between the parties is in fact established (see, to that effect, judgments of 7 February 2013, Refcomp, C‑543/10, EU:C:2013:62, paragraph 27 and the case-law cited, and of 8 March 2018, Saey Home & Garden, C‑64/17, EU:C:2018:173, paragraph 25 and the case-law cited).
42


It follows that, in principle, a jurisdiction clause incorporated in a contract may produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract (judgments of 7 February 2013, Refcomp, C‑543/10, EU:C:2013:62, paragraph 29, and of 28 June 2017, Leventis and Vafeias, C‑436/16, EU:C:2017:497, paragraph 35 and the case-law cited).
47


Only where the third party not privy to the original contract had succeeded to an original contracting party’s rights and obligations, in accordance with national substantive law, could that third party nevertheless be bound by a jurisdiction clause to which it had not agreed (see, to that effect, judgment of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 65 and the case-law cited).
51


Furthermore, it is for the court seised of a dispute, such as that in the main proceedings, to apply the legislation of the Member State whose courts are designated in that clause, interpreting that legislation in accordance with EU law, in particular Directive 93/13 (see, to that effect, judgments of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 79, and of 17 May 2018, Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraph 41).
52


In that context, first, it is important to point out that, as regards the relationship between Directive 93/13 and the rights of air passengers such as those stemming from Regulation No 261/2004, the Court has held that Directive 93/13 is a general regulation for consumer protection, intended to apply in all sectors of economic activity, including in the air transport sector (see, to that effect, judgment of 6 July 2017, Air Berlin, C‑290/16, EU:C:2017:523, paragraph 44 and the case-law cited).
53


Second, it is important to note that, in circumstances such as those in the main proceedings, regarding the assignment of claims to a collection agency, the Court has held, with regard to Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66), that the fact that the disputes in those proceedings were between only sellers or suppliers would not preclude the application of a relevant instrument of EU consumer law, in so far as the scope of that directive is not dependent on the identity of the parties to the dispute, but on the capacity of the parties to the agreement (see, to that effect, judgment of 11 September 2019, Lexitor, C‑383/18, EU:C:2019:702, paragraph 20).
55


Under Articles 1(1) and 3(1) of Directive 93/13, that directive applies to the terms incorporated in contracts concluded between a seller or supplier and a consumer which have not been individually negotiated (judgments of 7 November 2019, Profi Credit Polska, C‑419/18 and C‑483/18, EU:C:2019:930, paragraph 51 and the case-law cited, and of 10 September 2020, A(Subletting of social housing), C‑738/19, EU:C:2020:687, paragraph 34).
58


In that context, the Court has repeatedly held that a jurisdiction clause, incorporated in a contract between a consumer and a seller or supplier, that was not subject to an individual negotiation and which confers exclusive jurisdiction to the courts in whose territory that seller or supplier is based, must be considered as unfair under Article 3(1) of Directive 93/13 if, contrary to requirement of good faith, it causes significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer (see, in that regard, judgments of 27 June 2000, Océano Grupo Editorial and Salvat Editores, C‑240/98 to C‑244/98, EU:C:2000:346, paragraph 24; of 4 June 2009, Pannon GSM, C‑243/08, EU:C:2009:350, paragraph 40; and of 9 November 2010, VB Pénzügyi Lízing, C‑137/08, EU:C:2010:659, paragraph 53).
59


Such a term falls within the category of terms which have the object or effect of excluding or hindering the consumer’s right to take legal action, a category referred to in paragraph 1(q) of the Annex to that directive (judgments of 27 June 2000, Océano Grupo Editorial and Salvat Editores, C‑240/98 to C‑244/98, EU:C:2000:346, paragraph 22; of 4 June 2009, Pannon GSM, C‑243/08, EU:C:2009:350, paragraph 41; and of 9 November 2010, VB Pénzügyi Lízing, C‑137/08, EU:C:2010:659, paragraph 54).
62


Finally, it should be pointed out that, in accordance with the settled case-law, under Article 7(1)(b) of Regulation No 1215/2012 and with regard to direct flights, both the place of departure and that of arrival must be considered, in the same respect, as the principal places of provision of the services which are the subject of a contract for transport by air, thus giving the person bringing a claim for compensation on the basis of Regulation No 261/2004 the choice of bringing that claim before the court or tribunal which has territorial jurisdiction over either the place of departure or the place of arrival of the aircraft, as those places are agreed in that contract (see, to that effect, judgment of 9 July 2009, Rehder, C‑204/08, EU:C:2009:439, paragraph 47, and order of 13 February 2020, flightright, C‑606/19, EU:C:2020:101, paragraph 26).