Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
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Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Article 5(3) — Article 7(1) — Compensation to passengers in the event of denied boarding and of cancellation or long delay of flights — Exemption — Concept of ‘extraordinary circumstances’ — Unruly passengers — Possibility of relying on the occurrence of an extraordinary circumstance in respect of a flight not affected by that circumstance — Concept of ‘reasonable measures’
Facts
The dispute in the main proceedings is between a passenger and the air carrier Transportes Aéreos Portugueses (TAP) concerning its refusal to compensate that passenger whose connecting flight was subject to a long delay in arrival at its final destination. The passenger in question had made a reservation with TAP for a flight from Fortaleza (Brazil) to Oslo (Norway) with a stopover in Lisbon (Portugal). The flight was operated on 21 and 22 August 2017 with a delay in arrival in Oslo of almost 24 hours. The delay was due to the fact that the passenger in question was unable to board the second leg of the connecting flight from Lisbon to Oslo because of a delay in the arrival of the first flight from Fortaleza to Lisbon. This delay was due to the fact that the aircraft which operated that flight, on its previous flight from Lisbon to Fortaleza, had had to be diverted to Las Palmas de Gran Canaria (Spain) in order to disembark an unruly passenger who had bitten a passenger and assaulted other passengers and members of the cabin crew. The passenger in question was therefore flown to Oslo on the next flight operated by TAP the following day.
TAP refused to allow the claim for compensation on the ground that the delay to the flight concerned was the result of the unruly behaviour of a passenger on a previous flight operated using the same aircraft, and that that circumstance had to be classified as ‘extraordinary’ within the meaning of the Article 5(3) of 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 (OJ 2004 L 46, p. 1).
Hearing the case, the Tribunal Judicial da Comarca de Lisboa (District Court, Lisbon, Portugal) had doubts (i) as to the legal classification of the circumstance giving rise to that delay, (ii) as to whether an air carrier may rely on such a circumstance when it affected the aircraft which made the flight concerned, but on the occasion of a flight prior to that flight, and (iii) as to the reasonableness of the measures implemented by that carrier.
Decision
The ECJ recalled that an air carrier is to be released from its obligation to pay passengers compensation under Article 7 of Regulation No 261/2004 if the carrier can prove that the cancellation or delay of three hours or more is caused by ‘extraordinary circumstances’ which could not have been avoided even if all reasonable measures had been taken and, where such circumstances do arise, that it adopted measures appropriate to the situation, deploying all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid that situation from resulting in the cancellation or long delay of the flight in question, without the air carrier being required to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time.
According to settled case-law, events may be classified as ‘extraordinary circumstances’, within the meaning of Article 5(3) of Regulation No 261/2004, if, by their nature or origin, they are not inherent in the normal exercise of the activity of the air carrier concerned and are outside that carrier’s actual control, both conditions being cumulative. After pointing out that the unruly behaviour of a passenger, which has led to the re-routing of the aircraft to an airport other than the airport of arrival in order to disembark that passenger and his baggage, in fact jeopardises the safety of the flight in question, the ECJ held that such behaviour is not inherent in the normal exercise of the air carrier’s activity and is not, in principle, under its control – and, therefore, falls within the concept of ‘extraordinary circumstances’, within the meaning of that provision. However, the ECJ stated that the behaviour in question cannot be regarded as beyond the actual control of the operating air carrier concerned, and therefore classified as an ‘extraordinary circumstance’, if it appears that the carrier contributed to the occurrence of the behaviour or failed to take appropriate measures in view of the warning signs of such behaviour, which is a matter for the national court to verify.
The ECJ further clarified that, in order to be exempted from its obligation to compensate passengers in the event of a long delay or cancellation of a flight, an operating air carrier may rely on an ‘extraordinary circumstance’ which affected a previous flight which it operated using the same aircraft, provided that there is a direct causal link between the occurrence of that circumstance and the delay or cancellation of the subsequent flight, which is for the national court to determine, having regard in particular to the conditions of operation of the aircraft in question by the operating air carrier concerned.
Lastly, the ECJ considered that, in the event of the occurrence of an ‘extraordinary circumstance’, the air carrier is exempted from its obligation to compensate passengers only if it proves that it has deployed all the resources at its disposal to ensure reasonable, satisfactory and timely re-routing, including seeking alternative direct or indirect flights which may be operated by other air carriers, whether or not belonging to the same airline alliance, and arriving at a scheduled time that is not as late as the next flight of the air carrier concerned. Therefore, in the event of the occurrence of an ‘extraordinary circumstance’, the circumstance that the air carrier merely offered to re-route the passenger concerned to his final destination on the next flight operated by that carrier and arriving at the destination on the day following the day initially scheduled for his arrival, does not constitute a ‘reasonable measure’ releasing that carrier from its obligation to pay compensation, unless there was no other possibility of direct or indirect re-routing by a flight operated by itself or any other air carrier and arriving at a time which was not as late as the next flight of the air carrier concerned, or unless the implementation of such re-routing constituted an intolerable sacrifice for that air carrier in the light of the capacities of its undertaking at the relevant time, which is a matter for the national court to assess.
Order of the Court (Sixth Chamber) of 13 February 2020, C-606/19 – Flightright, EU:C:2020:101
Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Area of freedom, security and justice — Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Regulation (EU) No 1215/2012 — Second indent of Article 7(1)(b) — Special jurisdiction in matters relating to a contract — Concept of ‘place of performance’ — Contract for the provision of services — Air transport — Regulation (EC) No 261/2004 — Right to compensation for flight passengers in the event of cancellation or long delay of flights — Flight under a confirmed single booking with several connecting flights operated by two separate air carriers — Cancellation of the final leg of the journey — Claim for compensation brought against the air carrier in charge of the final leg of the journey before the court or tribunal which has territorial jurisdiction over the place of departure of the first leg of the journey.
This request for a preliminary ruling concerns the interpretation 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 request has been made in proceedings between flightright GmbH, a company established in Potsdam (Germany), and Iberia LAE SA Operadora Unipersonal (‘Iberia’), an airline established in Madrid (Spain), concerning a claim for compensation brought on the basis of 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 (OJ 2004 L 46, p. 1).
The dispute in the main proceedings concerns a journey with connecting flights scheduled for 25 August 2018, under a confirmed single booking for two passengers (‘the passengers at issue’).
The journey from Hamburg (Germany) to San Sebastian (Spain) comprised three connecting flights. The first leg of the journey, from Hamburg to London (United Kingdom), was operated by British Airways, while Iberia was in charge of the other two legs of the journey, from London to Madrid (Spain) and from Madrid to San Sebastian.
The Amtsgericht Hamburg (Local Court, Hamburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling
(1) Does the referring court have international jurisdiction, where connecting flights constitute a whole, two different … air carriers performed the individual connecting flights and the referring court only has international jurisdiction for the connecting flight not affected by a cancellation?
(2) Do both air carriers performing the connecting flights constituting a whole have the capacity to be sued where two Community air carriers performed the connecting flights?’
The Court considered that, in so far as Regulation No 1215/2012 repeals and replaces 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 Court’s interpretation of the provisions of the latter regulation also applies to Regulation No 1215/2012, whenever the provisions of the two instruments of EU law may be regarded as equivalent (judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 19 and the case-law cited). Consequently, the Court’s interpretation of Article 5(1) of Regulation No 44/2001 also applies to Article 7(1) of Regulation No 1215/2012, since those provisions may be regarded as equivalent (judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 20 and the case-law cited).
With regard to Article 5(1) of Regulation No 44/2001, the Court held, for direct flights, that 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 carriage 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, paragraphs 43 and 47).
Where a flight consists of a confirmed single booking for the entire journey and comprises two legs, the person bringing a claim for compensation on the basis of Regulation No 261/2004, can also choose to bring the claim either before the court or tribunal which has territorial jurisdiction over the place of departure of the first leg of the journey or before the court or tribunal which has territorial jurisdiction over the place of arrival of the second leg of the journey.
The Court considered that in situations in which a journey with connecting flights consists of a confirmed single booking for the entire journey and comprises several legs, the place of performance, within the meaning of the second indent of Article 7(1)(b) of Regulation No 1215/2012, can be the place of departure of the first leg of the journey, as one of the principal places of provision of the services which are the subject of a contract for carriage by air.
Given that that place has a sufficiently close link with the material elements of the dispute and, therefore, ensures the close connection required by the rules of special jurisdiction set out in Article 7(1) of Regulation No 1215/2012 between the contract for carriage by air and the competent court or tribunal, it satisfies the objective of proximity underlying those rules (see, to that effect, judgment of 7 March 2018, flightright and Others, C‑274/16, C‑447/16 and C‑448/16, EU:C:2018:160, paragraphs 74 and the case-law cited). That solution also fulfils the principle of predictability pursued by those rules in so far as it allows both the applicant and the defendant to identify the court or tribunal for the place of departure of the first leg of the journey, as it is set out in that contract for carriage by air, as the court or tribunal before which actions may be brought (see, to that effect, judgment of 7 March 2018, flightright and Others, C‑274/16, C‑447/16 and C‑448/16, EU:C:2018:160, paragraphs 75 and 77 and the case-law cited).
With regard to the possibility, in a case such as that in the main proceedings, to sue the air carrier in charge of the final leg of the journey before the court or tribunal which has territorial jurisdiction over the place of departure of the first leg of the journey, the Court observed that while it does not transpire from the order for reference that Iberia was the contracting partner of the passengers at issue, the rule of special jurisdiction for matters relating to a contract set out in Article 7(1) of Regulation No 1215/2012 does not require the conclusion of a contract between two persons, but the existence of a legal obligation freely consented to by one person in respect of another and on which the claimant’s action is based (see, to that effect, judgment of 7 March 2018, flightright and Others, C‑274/16, C‑447/16 and C‑448/16, EU:C:2018:160, paragraph 60 and the case-law cited).
In that regard, the second sentence of Article 3(5) of Regulation No 261/2004 states that where an operating air carrier, within the meaning of Article 2(b) thereof, which has no contract with the passenger performs obligations under that regulation, it is to be regarded as doing so on behalf of the person having a contract with that passenger.Therefore, that carrier must be regarded as fulfilling the freely consented obligations vis-à-vis the contracting partner of the passenger concerned. Those obligations arise under the contract for carriage by air (judgment of 7 March 2018, flightright and Others, C‑274/16, C‑447/16 and C‑448/16, EU:C:2018:160, paragraph 63).
The Court answered to the questions referred in the sense that the second indent of Article 7(1)(b) of Regulation No 1215/2012 must be interpreted as meaning that the ‘place of performance’, within the meaning of that provision, in respect of a flight consisting of a confirmed single booking for the entire journey and divided into several legs, can be the place of departure of the first leg of the journey where transport on those legs of the journey is performed by two separate air carriers and the claim for compensation brought on the basis of Regulation No 261/2004 arises from the cancellation of the final leg of the journey and is brought against the air carrier in charge of that last leg.
Facts
Case C-762/18 concerns QH, a former employee of a school in Bulgaria. She was initially dismissed and then reinstated in her employment following a court judgment declaring her dismissal unlawful. Subsequently, QH was again dismissed.
QH brought an action against the school seeking, inter alia, payment of compensation in lieu of leave not taken for the period between her unlawful dismissal and her reinstatement. The Varhoven kasatsionen sad na Republika Bulgaria (Supreme Court of Cassation, Bulgaria), ruling at last instance, did not uphold her claims.
QH then brought proceedings before the Rayonen sad Haskovo (District Court, Haskovo, Bulgaria) against the Varhoven kasatsionen sad na Republika Bulgaria, seeking compensation for the losses allegedly suffered as a result of that court’s infringement of EU law.
Case C-37/19 involves facts similar to those of Case C-762/18, concerning CV, a former employee of Iccrea Banca, an Italian credit institution.
CV was reinstated in her employment following the annulment of her dismissal by a court judgment declaring that dismissal to be unlawful. Subsequently, CV’s contract of employment was again terminated.
The Corte suprema di cassazione (Court of Cassation, Italy) was seised at last instance of CV’s action seeking an order that Iccrea Banca pay compensation for leave not taken in respect of the period between her unlawful dismissal and her reinstatement.
Requests for a preliminary ruling
The Bulgarian and Italian courts decided to refer questions for a preliminary ruling to the Court of Justice. The Rayonen sad Haskovo asks the Court whether EU law – Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (JO 2003, L 299, p. 9), and Article 31(2) of the Charter of Fundamental Rights of the European Union – must be interpreted as meaning that a worker, in the situation described, is entitled to paid annual leave for the period between unlawful dismissal and reinstatement as an employee even if, during that period, he or she has not actually worked for the employer. In additional, the Rayonen sad Haskovo and the Corte suprema di cassazione ask the Court whether EU law must be interpreted as meaning that workers, in the situations described, are entitled to financial compensation in lieu of paid annual leave not taken during the period between unlawful dismissal and reinstatement.
According to the Court of Justice press release:
The Court recalls, first of all, its case-law 2 in accordance with which, where the worker is unable to perform his or her duties for an unforeseeable reason beyond his or her control, such as sickness, the right to paid annual leave cannot be made subject to a condition that the worker has actually worked.
The Court notes, next, that, as when a worker is unable to perform his duties due to sickness, the fact that a worker has been deprived of the opportunity to work as a result of a dismissal subsequently found to be unlawful is, in principle, unforeseeable and beyond the control of that worker.
The Court concludes therefrom that the period between a worker’s unlawful dismissal and reinstatement in his or her employment must be assimilated to a period of actual work for the purposes of determining the entitlement to paid annual leave. Consequently, a worker unlawfully dismissed then reinstated in his or her employment, by virtue of national law, following the annulment of the dismissal by the judgment of a court, is entitled to the paid annual leave acquired during that period.
The Court observes that, if the reinstated worker is again dismissed or if the employment relationship, after reinstatement, ceases for any reason, the worker is entitled to a payment in lieu of paid annual leave not taken to which the entitlement was acquired during the period between the unlawful dismissal and the reinstatement.
However, the Court specifies that, if, during the period between the unlawful dismissal and his or her reinstatement in his or her former employment, the worker has taken new employment, he or she will be able to claim the entitlement to paid annual leave corresponding to the period during which he or she has been in that employment only from the new employer.”
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