Air transport. The CJEU in Adriano Guaitoli v Easyjet. The not always clear delineation between the jurisdictional rules of the Brussels and Montreal regimes.

C-213/18 Adriano Guaitoli et al v Easyjet concerns the clearly complex relationship between the Brussels Ia jurisdictional regime, the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air, and the EU’s flight compensation Regulation 261/2004.

Montreal Article 33 determines which court has jurisdiction to hear an action for damages against an air carrier falling within the scope of that instrument. The reference has been made in the context of a cross-border dispute between an airline and a number of passengers, in relation to sums claimed by those passengers both by way of standardised compensation under Regulation 261/2004 and by way of individualised compensation for damage caused to them by the cancellation of an outward and a return flight, both operated by that airline.

Saugmandsgaard ØE had advised that the two instruments should be applied distributively, according to the nature of the relevant head of claim. The Court has followed: the court of a Member State hearing an action seeking to obtain both compliance with the flat-rate and standardised rights provided for in Regulation No 261/2004, and compensation for further damage falling within the scope of the Montreal Convention, must assess its jurisdiction, on the first head of claim, in the light of Article 7(1) BIa and, on the second head of claim, having regard to Article 33 Montreal.

This is also the result of Articles 67 and Article 71(1) BIa which allow the application of rules of jurisdiction relating to specific matters which are contained respectively in Union acts or in conventions to which the Member States are parties. Since air transport is such a specific matter, the rules of jurisdiction provided for by the Montreal Convention must be applicable within the regulatory framework laid down by it.

Note that per Article 17(3) BIa the consumer section ‘shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation’ (see also C‑464/18 Ryanair). The rule of special jurisdiction for the supply of services, A7(1)(b) BIa, designates as the court having jurisdiction to deal with a claim for compensation based on air transport contract of persons, at the applicant’s choice, that court which has territorial jurisdiction over the place of departure or place of arrival of the aircraft, as those places are agreed in that transport contract; see also C-88/17 Zurich Insurance.

The Court further held that Article 33 Montreal, like A7BIa, leads to the direct appointment of the territorially competent court within a Montreal State: it does not just just identify a State with jurisdiction as such.

The combined application of these rules inevitable means that unless claimants are happy to sue in Mozaik fashion, consolidation of the case will most likely take place in the domicile of the airline. In the Venn diagram of options, that is in most cases the only likely overlap.


(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2, Heading

Prüller-Frey: The CJEU on Direct action provided for by national law against the civil-liability insurer

Case-law on Rome II (the law applicable to non-contractual obligations) is only slowly picking up so almost anything coming out of the CJEU is met with excitement. Like Ergo Insurance (so far only the AG’s Opinion), C-240/14 Prüller-Frey concerns insurance contracts. In this case, direct action against an insurer, by the victim of an air traffic accident.

The victim sues in Austria, on the basis of Article 6 or, alternatively, 11 of the Brussels I Regulation (old: Regulation 44/2001). Applicability or not of the Montreal Convention (for the Unification of Certain Rules for International Carriage by Air) and the EU’s implementation of same, is less relevant for this posting. At stake was mostly Article 18 of the Rome II Regulation, which reads

The person having suffered damage may bring his or her claim directly against the insurer of the person liable to provide compensation if the law applicable to the non-contractual obligation or the law applicable to the insurance contract so provides.

The lex contractus is German law. This was so chosen by the insured, Norbert Brodnig, and the insurance company, Axa Versicherung AG. German law does not provide for such direct action. But Spanish law, the lex locus damni (which applies between Prüller-Frey and Brodnig), does. The insurance company calls upon the absence of the action in German law, to reject Prüller-Frey’s action. Szpunar AG and the CJEU itself simply point to the clear language of Article 18: this is not a conflict of laws rule that determines the law applicable between victim and insurer: the insurance company’s obligations will continue to be subject to the lex contractus. Article 18 is simply an alternative connecting factor for the very possibility of direct action against the insurer. Spanish law is the law applicable to the non-contractual obligation and if Spanish law allows for such direct action, then that is enough for there to be one.