Choice of jurisdiction for passenger claims under Regulation 261: Brussels Recast and the Montreal Convention? Advocate General's opinion
Advocate General's opinion of the 20 June 2019 on case C-213/18
Simon Phippard and Sandra Nicolle, July 2019
Frequently our reports on cases covering passenger rights turn on issues around "extraordinary circumstances" or the respective obligations of multiple carriers in connecting flights. However these claims also raise questions about jurisdiction, especially where claims may be brought under Regulation 261/2004 and other air carriers' liability instruments.
When a claim is brought for standard compensation under Regulation 261 and for further compensation under the 1999 Montreal Convention, the Advocate General (AG) argued that both Regulation (EU) No 1215/2012 of the European Parliament (Brussels Recast) and article 33 of the Montreal Convention govern jurisdiction of the case, with Brussels Recast being applicable to the Regulation 261 limb of the claim, and article 33 of the Montreal Convention applicable to the limb of the claim under the same text. He also argued the Montreal Convention can determine jurisdiction intra-state, in addition to international jurisdiction.
Background
The claimants purchased return flight tickets between Italy and Greece. The outbound flight was delayed, and eventually cancelled.
The claimants issued proceedings in Rome to make a claim for compensation under Regulation 261. They made a claim for standard indemnification, and for the reimbursement of costs incurred due to the cancellation, under articles 5, 7 and 9 of the regulation. They also claimed further compensation under the Montreal Convention as envisaged by article 12 of the Regulation.
The airline challenged the jurisdiction of the courts in Rome. They said the courts had to start by determining how jurisdiction rules under Brussels Recast and the Montreal Convention operated together, and what room did that leave for national rules on competence. The claimants were domiciled in Rome; however the airport of departure was within the jurisdiction of the Tribunal of Civitavecchia.
Referral to the CJEU
The Tribunal of Rome referred two questions to the CJEU. Firstly, where the claimants claim both for standard compensation under Regulation 261, and also for further compensation under its article 12, must the courts apply the Montreal Convention to determine the competent jurisdiction, or is the competent jurisdiction (both internationally and intra-nationally) determined by Brussels Recast? Secondly, if the Montreal Convention is applicable, should it be interpreted solely to determine jurisdiction between Member States, or can it also apply to determine jurisdiction within each Member State, internally?
The first question
The AG's opinion considered Regulation 261 and the Montreal Convention, their scopes, and rules of jurisdiction applicable to claims made under them.
The CJEU has already held that the texts' scopes are different, and this difference is at the heart of the AG's reasoning. Regulation 261 creates a framework for standard and immediate compensation for delays, cancellation and denied boarding. Articles 19 and onwards of the Montreal Convention, on the other hand, set out the conditions under which claims can be made for tailored compensation, by reference to the exact losses suffered by passengers. Regulation 261 is clear on its aim to create minimum rights for passengers (article 1), and allows for supplemental compensation pursuant to article 12. A judge may therefore award a claimant compensation under Regulation 261 on one hand, and damages under another text such as the Montreal Convention, or national law, on the other. The two texts constitute two independent legal bases.
The AG's opinion argued that, given the two separate legal bases, jurisdiction must be determined pursuant to the Brussels Recast in relation to the parts of the claim coming under articles 5 to 7 of Regulation 261; and under the Montreal Convention in relation to the claims made under that instrument.
The very existence of two separate legal bases, and their recognition by the courts, suggests that two separate rules of jurisdiction may apply to cases where both legal bases are invoked. Settled case law has already ruled that when faced with a Regulation 261 claim, a judge must assess jurisdiction under Brussels Recast. The AG argued that Brussels Recast itself does not prevent the application of other conventions to which Member States are a party, or instruments of the Union, governing jurisdiction in relation to specific matters. Air carriage would fall under "specific matters", and the Montreal Convention is officially an instrument of the Union. On this basis, the AG believed article 33 of the Montreal Convention should apply to determine jurisdiction in relation to a part of the claim, based on article 19 of that Convention.
Thus the AG concluded that both texts governing jurisdiction can apply to the same case. He concluded that there is very limited risk that jurisdiction will be split. Two criteria under the instruments are the same: the domicile of the defendant, and the place of destination of the flight, two options between which the passengers may choose. Therefore, the AG concluded that both texts could be expected to designate the same jurisdiction as competent to hear a claim.
The second question
The AG argued that the Montreal Convention can determine jurisdiction among jurisdictions within contracting States.
The AG takes a literal approach to article 33 of the Montreal Convention, looking at the wording of the text in its six original languages to determine its scope. He points out that the article, in its French version, is entitled "juridiction compétente". In French, that would be understood to designate any body with jurisdictional power, and not to refer only to the contracting State in question. This description allows claimants directly to seize one of the courts designated, circumventing any internal rules of competence. The AG asserted that article 33 would have been drafted differently if the intention were for it to only determine international competence.
The AG claimed that the objectives of the Montreal Convention support his argument. The Convention aims to protect the interests of consumers in international carriage by air, and to harmonize the relevant rules to achieve an equitable balance of interests. The AG argued that if article 33 only applies on an international level, this would go against the objective of harmonization. According to the AG, there is greater legal certainty if article 33 determines jurisdiction within a Member State. Claimants would not have to study each State's internal rules to identify which court has jurisdiction. The AG believed this interpretation is therefore in line with the objectives of the Montreal Convention.
Conclusion
According to the AG in this opinion, Brussels Recast should govern the claims brought under articles 5, 7, 9 and 12 of Regulation 261, but article 33 of the Montreal Convention should be referred to by the judge regarding any claims for further compensation brought under the Convention. In this case, based on either instrument, the claimants would be entitled to bring their claims in the jurisdiction of the domicile of the defendant, or in the jurisdiction of destination of the relevant flight. However, the CJEU will have to assess carefully whether the use of two instruments governing jurisdiction would not risk competing claims in different jurisdictions, despite the AG's assurances.
Frequently our reports on cases covering passenger rights turn on issues around "extraordinary circumstances" or the respective obligations of multiple carriers in connecting flights. However these claims also raise questions about jurisdiction, especially where claims may be brought under Regulation 261/2004 and other air carriers' liability instruments.
When a claim is brought for standard compensation under Regulation 261 and for further compensation under the 1999 Montreal Convention, the Advocate General (AG) argued that both Regulation (EU) No 1215/2012 of the European Parliament (Brussels Recast) and article 33 of the Montreal Convention govern jurisdiction of the case, with Brussels Recast being applicable to the Regulation 261 limb of the claim, and article 33 of the Montreal Convention applicable to the limb of the claim under the same text. He also argued the Montreal Convention can determine jurisdiction intra-state, in addition to international jurisdiction.
Background
The claimants purchased return flight tickets between Italy and Greece. The outbound flight was delayed, and eventually cancelled.
The claimants issued proceedings in Rome to make a claim for compensation under Regulation 261. They made a claim for standard indemnification, and for the reimbursement of costs incurred due to the cancellation, under articles 5, 7 and 9 of the regulation. They also claimed further compensation under the Montreal Convention as envisaged by article 12 of the Regulation.
The airline challenged the jurisdiction of the courts in Rome. They said the courts had to start by determining how jurisdiction rules under Brussels Recast and the Montreal Convention operated together, and what room did that leave for national rules on competence. The claimants were domiciled in Rome; however the airport of departure was within the jurisdiction of the Tribunal of Civitavecchia.
Referral to the CJEU
The Tribunal of Rome referred two questions to the CJEU. Firstly, where the claimants claim both for standard compensation under Regulation 261, and also for further compensation under its article 12, must the courts apply the Montreal Convention to determine the competent jurisdiction, or is the competent jurisdiction (both internationally and intra-nationally) determined by Brussels Recast? Secondly, if the Montreal Convention is applicable, should it be interpreted solely to determine jurisdiction between Member States, or can it also apply to determine jurisdiction within each Member State, internally?
The first question
The AG's opinion considered Regulation 261 and the Montreal Convention, their scopes, and rules of jurisdiction applicable to claims made under them.
The CJEU has already held that the texts' scopes are different, and this difference is at the heart of the AG's reasoning. Regulation 261 creates a framework for standard and immediate compensation for delays, cancellation and denied boarding. Articles 19 and onwards of the Montreal Convention, on the other hand, set out the conditions under which claims can be made for tailored compensation, by reference to the exact losses suffered by passengers. Regulation 261 is clear on its aim to create minimum rights for passengers (article 1), and allows for supplemental compensation pursuant to article 12. A judge may therefore award a claimant compensation under Regulation 261 on one hand, and damages under another text such as the Montreal Convention, or national law, on the other. The two texts constitute two independent legal bases.
The AG's opinion argued that, given the two separate legal bases, jurisdiction must be determined pursuant to the Brussels Recast in relation to the parts of the claim coming under articles 5 to 7 of Regulation 261; and under the Montreal Convention in relation to the claims made under that instrument.
The very existence of two separate legal bases, and their recognition by the courts, suggests that two separate rules of jurisdiction may apply to cases where both legal bases are invoked. Settled case law has already ruled that when faced with a Regulation 261 claim, a judge must assess jurisdiction under Brussels Recast. The AG argued that Brussels Recast itself does not prevent the application of other conventions to which Member States are a party, or instruments of the Union, governing jurisdiction in relation to specific matters. Air carriage would fall under "specific matters", and the Montreal Convention is officially an instrument of the Union. On this basis, the AG believed article 33 of the Montreal Convention should apply to determine jurisdiction in relation to a part of the claim, based on article 19 of that Convention.
Thus the AG concluded that both texts governing jurisdiction can apply to the same case. He concluded that there is very limited risk that jurisdiction will be split. Two criteria under the instruments are the same: the domicile of the defendant, and the place of destination of the flight, two options between which the passengers may choose. Therefore, the AG concluded that both texts could be expected to designate the same jurisdiction as competent to hear a claim.
The second question
The AG argued that the Montreal Convention can determine jurisdiction among jurisdictions within contracting States.
The AG takes a literal approach to article 33 of the Montreal Convention, looking at the wording of the text in its six original languages to determine its scope. He points out that the article, in its French version, is entitled "juridiction compétente". In French, that would be understood to designate any body with jurisdictional power, and not to refer only to the contracting State in question. This description allows claimants directly to seize one of the courts designated, circumventing any internal rules of competence. The AG asserted that article 33 would have been drafted differently if the intention were for it to only determine international competence.
The AG claimed that the objectives of the Montreal Convention support his argument. The Convention aims to protect the interests of consumers in international carriage by air, and to harmonize the relevant rules to achieve an equitable balance of interests. The AG argued that if article 33 only applies on an international level, this would go against the objective of harmonization. According to the AG, there is greater legal certainty if article 33 determines jurisdiction within a Member State. Claimants would not have to study each State's internal rules to identify which court has jurisdiction. The AG believed this interpretation is therefore in line with the objectives of the Montreal Convention.
Conclusion
According to the AG in this opinion, Brussels Recast should govern the claims brought under articles 5, 7, 9 and 12 of Regulation 261, but article 33 of the Montreal Convention should be referred to by the judge regarding any claims for further compensation brought under the Convention. In this case, based on either instrument, the claimants would be entitled to bring their claims in the jurisdiction of the domicile of the defendant, or in the jurisdiction of destination of the relevant flight. However, the CJEU will have to assess carefully whether the use of two instruments governing jurisdiction would not risk competing claims in different jurisdictions, despite the AG's assurances.
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