Posts Tagged Ryanair
In C-464/18 ZX v Ryanair, the CJEU last week succinctly held on branch jurisdiction (Article 7(5)) and on voluntary appearance under Article 26.
The Court first reminds readers of the exclusion of simple contracts of transport (as opposed to combined tickets /package travel) from the consumer title of the Regulation: aee Article 17(3): the consumer title ‘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’.
Surprisingly perhaps (and /or due to lobbying), this did not come up for amendment in the recent Recast, despite the massive increase on travel tickets bought online in particular since transport was first carved out from the consumer title in the Brussels Convention. At 160 the Jenard Report explains the carve-out by reference to international agreements – yet these too could probably do with a refit – but I am straying.
The Court also reminds us that the flight compensation Regulation 261/2004 does not contain conflict of laws rules – these remain subject to the general instruments.
To the case at hand then: ZX purchased a ticket online for a flight operated by Ryanair between Porto (Portugal) and Barcelona (Spain). Applicant is neither domiciled nor resident in Spain, defendant has its registered office in Ireland, and has a branch in Girona (Spain). ZX, the passenger, did not justify jurisdiction pro Girona on the basis of forum contractus. Per C‑204/08 Rehder, this would have been place of arrival or departure.
Branch jurisdiction per Article 7(5) featured most recently in C-27/17 flyLAL, and is quite clearly not engaged here: the ticket was purchased online. There is no element in the order for reference indicating that the transport contract was concluded through that branch. Furthermore, the services provided by the branch of Ryanair in Girona appear to be related to tax matters.
That leaves Article 26: how and when may it justify the international jurisdiction of the court seised by virtue of a tacit acceptance of jurisdiction, on the ground that the defendant in the main proceedings does not oppose that court having jurisdiction? The case-file reveals that following the invitation from the registry of that court to submit observations on the possible international jurisdiction of that court, Ryanair failed to submit written observations. The Court finds this does not amount to tacit acceptance.
Article 26 requires that the defendant enter an appearance. However what exactly this requires hitherto I believe to quite a degree has been subject to lex fori – particularly the local procedural law. One might have expected a more extensive CJEU consideration e.g. revisiting 119/84 Capelloni v Pelkmans.
A missed opportunity.
(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.7.
Ceci n’est pas une base Ryanair – The court in Charleroi on ‘place where the employee habitually carries out his work’
The title of this piece is taken from a press release by CNE, the trade union who represented plaintiff – and who provided me with a copy of the judgment for which many thanks. Where does an employee ‘habitually carry out his work’ within the meaning of Article 19 of the Brussels I Regulation? The court at Charleroi needed that to be Charleroi, for it to be able to exercise jurisdiction. Ryanair’s domicile being in Ireland was not contested and no choice of court was made in the contract between plaintiff and the airline. The court referred to ECJ precedent, notably Mulox, Rutten, Weber, Koelzsch and Voogsgeerd. Had the ECJ had jurisdiction in C-533/03 Warbecq v Ryanair, current discussion might not have arisen, one imagines.
Plaintiff suggested a list of considerations which in his view led to Charleroi being the place of habitual carrying out of his work, including: journeys as a ‘cabin service agent’ (steward or stewardess to you and me) always started and ended at Charleroi airport; consequently he had to rent a flat in the Charleroi area; flight times were corresponded to plaintiff via a PC located at the airport; prior to each flight, he had to check in at the Charleroi office; staff issues were dealt with at the airport; equipment was provided from the airport; training and fitness et al tests were carried out at Charleroi.
The court however sided with Ryanair’s contention that its organisation at Charleroi was skeleton only, and that in having organised the work schedule from Dublin, there was no team at Charleroi which had the remit to manage the work schedule or anything else independently from Dublin.
I think Charleroi is missing a trick here: per the ECJ’s case-law, the criterion of the country in which the work is habitually carried out must be given a broad interpretation and must be understood as referring to the place in which or from which the employee actually carries out his working activities. Arguably, the employee’s activities lie at the heart of that analysis: not the employer’s, which is what the court at Charleroi has taken as its main clue.
Appeal is underway.