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Jurisdiction in respect of claims under EC-Regulation 261/2004

Jurisdiction in respect of claims under EC-Regulation 261/2004. Consumer protection from a different perspective. Introduction. ECJ 9 / 7 / 2009, Case C-204/08 Rehder vs. Air Baltic Strictly : not Reg.261/2004, but : Reg. 44/2001 => how to enforce Reg. 261/2004?

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Jurisdiction in respect of claims under EC-Regulation 261/2004

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  1. Jurisdiction in respect of claims underEC-Regulation 261/2004 Consumerprotectionfrom a different perspective The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  2. Introduction ECJ 9 / 7 / 2009, Case C-204/08 Rehder vs. Air Baltic • Strictly : not Reg.261/2004, but : • Reg. 44/2001 => how to enforce Reg. 261/2004? • Observations and remarks in a private capacity The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  3. ECJ : Rehder vs. Air Baltic • Case: • Rehder booked Air Baltic flight Munich – Vilnius • Cancellation => Rehder rerouted through Copenhagen on other flight • Rehder claims € 250 re cancellation • Amtsgericht (subdistrict court): jurisdiction • Oberlandesgericht (appeal): no jurisdiction • BGH (Supreme court): preliminary questions The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  4. ECJ : Rehder vs. Air Baltic • Preliminary: does article 33 Montreal Conv. apply re determining court’s jurisdiction? • basis of right at stake is article 7 Reg 261/2004 • standardised + lump sum payment is independant of compensation in context of article 19 Montreal (ECJ 10/1/06, C-344/04 (IATA&ELFAA) • result: right based on Reg 261/2004 resp. Montreal fall within different regulatory frameworks • claim ex Reg 261/2004 to be examined in light of Reg. 44/2001 The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  5. ECJ : Rehder vs. Air Baltic (2) • Essence of questions: how to interpret ‘place in Member State where, under the contract, services were or should have been provided’ in 2nd indent of article 5 (1)(b), Reg 44/2001 in event of air transportation of pax from a Member Sate to another Member State in context of claim based on Reg 261/2004? The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  6. ECJ : Rehder vs. Air Baltic (3) • Interpretation of this question: in reality question is: same interpretation as was given to 1st indent of artcle 5(1)(b) re several places of delivery within single Member State in ECJ 3/5/2007, C-386/05 (Color Drack)? The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  7. ECJ : Rehder vs. Air Baltic (4) • Color Drack • Interpretation of 5(1)(b) in light of origin, objectives and schemes of Reg 44/2001 • Principles of predictability and proximity • unification of rules of conflict of jurisdiction by way of highly predictable rules (2nd + 11th recital) => easy identification by parties of court where to sue/be sued • jurisdiction generally based on defendant’s domicile, re contacts complemented by special jurisdiction ex 5(1) => close link contract – court to decide case The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  8. ECJ : Rehder vs. Air Baltic (5) • Color Drack: one court must have jurisdiction • 5(1) also applies in event of several places of delivery of goods in one single member state • Closest linking factor contract – court: • place of principal delivery • if no such place, each place of delivery The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  9. ECJ : Rehder vs. Air Baltic (6) • Same factors apply to contract re provision of services, including when such provision is not in one single member state • same origin • same objectives => predictability & proximity • same place in scheme of Reg.44/2001 => 5(1)(b) • differentiation in case of provision in different Member States contrary to objectives The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  10. ECJ : Rehder vs. Air Baltic (7) • In air transport: which place has closest linking factor between contract - court? • place of registered office, principal place of business, place of conclusion of contract/issue of ticket/stop-over? No Activities re logistic and preparation of flight (provision of adequate aircraft and crew) ≠ services linked to actual contents of contract The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  11. ECJ : Rehder vs. Air Baltic (8) • In air transport: which place has closest linking factor between contract - court? • Places of departure and arrival? Yes, only ones • check-in, boarding, on-board reception, departure at scheduled time, transport of pax + luggage, care during flight, disembarkation in conditions of safety at place of landing at time scheduled in contract = services • to be understood as agreed in contract of carriage, made with one single airline which is operating the flight The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  12. ECJ : Rehder vs. Air Baltic (9) • Interpretation of 5(1)(b), 2nd indent Reg. 44/2001: court of place of departure and court of place of arrival as agreed in air transport contract , at claimant’s choice, have jurisdiction re claims founded on Reg. 261/2004 and such contract with only one airline which is operating flight re transport of pax from one Member State to another Member State The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  13. What’s the point? Montreal Conv. /Warsaw (HP) Reg. 44/2001 Articles 2, 5, 60 : 2: place of domicile 5: place where services were or should have been provided 60: domicile of company : stat. seat, central administr., princ.place of business Article 15(1) + 16(1): domicile of consumer ECJ: Rehder vs Air Baltic place of departure /arrival • Article 33 (28): jurisdiction • Domicile of carrier • Princ. place business carrier • Place business through which contract has been made • Place of destination • Article 45 (VIII Guadaljara): • Domicile/principal place of business of actual carrier The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  14. What’s the point? • Jurisdiction ex Reg.44/2001+ place departure > jurisdiction Montreal (Warsaw) • before Reg. 261/2004 jurisdiction not real issue • If litigation by consumer-pax => Montreal provisions clear enough and interests too important • Reg. 261/2004 = opening for great number of small consumer claims j° internet booking/selling The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  15. What’s the point? • Example: • claim of € 250 re delay of NL-pax on flight from Duesseldorf to Rome with EU-based /non-NL -airline , booked through NL-website in NL NB: Rehder-case: Munich = place departure + Rehder ‘s domicile => no jurisdiction for NL-court under Montreal or Reg 44/2001 incl. Rehder-case The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  16. What’s the point? • In fact: transport contract in example = consumer contract • jurisdiction => 15 (1) + 16 (1) Reg. 44/2001 a. court of domicile of other party AND b. court of domicile consumer BUT: 15(3) => 15(1) not applicable to transport contract which is not part of package => no jurisdiction in consumer ‘s domicile! The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  17. What’s the point? • Result in example: Less protection for NL-consumer-pax => opposite to package tour consumer who booked through NL-website, no NL- jurisdiction on basis of consumer- provisions (15-17) of Reg. 44/2001 How to improve the consumer’s position ? The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  18. What’s the point? • Observations • priority of treaties/conventions to which EU is a party, above Community-legislation • Reg. 261/2004: 1st + 4th recital • actions by Community in field of air transport should aim at ensuring high level of protection for pax • raise standards of protection to strengthen pax rights The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  19. What’s the point? • Observations (2): • Reg 261/2004 is regulatory framework different from Montreal, thus to be examined in light of Reg 44/2001 (IATA&ELFAA; Rehder vs. Air Baltic) • Reg 44/2001: 13th recital • re consumer contracts, protection of weaker party by jurisdiction rules more favourable to his interests than general rules provide for • objective of 15(3): not to interfere with claims founded on conventions re transport The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  20. Conclusion • No justification on objective grounds to maintain 15(3) Reg. 44/2001 • imbalance between consumers within community to detriment of consumer-pax who claims on basis of contract of air carriage and Reg. 261/2004 • Suggestion: exempt these claims from 15(3) • preferably by modification of Reg 44/2001 • ECJ as a quasi-legislator like in Sturgeon vs. Condor (ECJ 19/11/2009, C-402/07) is confusing, at least a bit… The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

  21. Thank you very much for your attention! Harry Manuel Vice-President District Court Zwolle-Lelystad The 22nd IFTTA World Conference Rome, 1 - 5 September 2010

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