Saugmandsgaard ØE in Libuše Králová v Primera Air Scandinavia: the Feniks ‘contractual relation’ train thunders on, yet restraint is shown on the consumer section, even for package travel.

In C-215/18 Libuše Králová v Primera Air Scandinavia, Saugmandsgaard ØE AG now unsurprisingly (following the CJEU predecent of Feniks and Flightright), advised that in a package of services acquired from a travel agent, where there is no direct agreement with the airline carrying out the flight part of the package, there is a ‘contract’ between the individual and the airline within the meaning of Article 7(1) BIa.

At 37 the AG emphasises the element of predictability on the part of the airline, who should not be surprised to be sued by the individual whom they agree with the travel agency to transport, both in the place of take-off and landing, per Zurich Insurance.

However unlike the Commission, the AG supports a less extensive interpretation of the consumer section. Package travel as defined in Directive 90/314, unlike simple tickets for transport only, are covered by the protective provisions of Article 17 ff BIa. Yet the AG proposes to extend that regime only to the direct relationship between the travel agent and the consumer, not the airline who merely carries out the transport side of the arrangement. At 48 ff the AG sets out his reasons for the limitation: the emphasis in the consumer section on the very consumer and professional party who concluded the contract (48-49); the distinction with Maletic since in the case at issue claimant is after the airline company only, not an in solidum finding against the agency and the airline (5-52); and of course the need for strict interpretation.

Note of course the different balance struck by the AG as opposed to e.g. the High Court in Bonnie Lackey.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.

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