The CJEU has been very generous with airline passengers when it comes to applying the rules on jurisdiction in the Brussels I bis Regulation, especially with regard to indemnity for cancelled or delayed flights.
In Rehder v Air Baltic, it had famously ruled that the passenger can actually choose between the place of departure and the place of arrival when bringing a claim against the airline. Later decisions have extended this choice to cases of combined flights, with the CJEU ruling that the passenger can bring the claim against the airline at the place of departure of the first leg or the place of arrival of the last leg, provided that both legs of the flight have been booked together (see for instance Flightright v Iberia, Air Nostrum and my previous post on EAPIL).
The claim in JW et al. v LOT also concerned a combined flight. However, the passenger had brought the claim neither at the place of departure (in Warsaw) nor at the final destination (on the Maldives) but rather at the place of an infamous stopover (Frankfurt am Main). This choice seems surprising given that both the passenger as well as the operating airline were domiciled in Warsaw. The idea might have been that the delay at the root of the action occurred at this place, but it would still have been more practical to sue in Warsaw.
As it turned out, it was also legally unwise to sue at the stopover, since the CJEU actually rejects the jurisdiction of the courts there. The Court rules that the place of performance of service contracts in the sense of Article 7(1)(b) of the Brussels I bis Regulation is where the “the main provision of services is to be carried out”. In its previous case law, the CJEU had considered only the place of departure and the final destination as such points. While the Court acknowledges that this list is a “non-exhaustive illustration” (see para 23), it balks at including the stopover in it.
Exactly why is difficult to tell. Objectively, it can hardly be denied that many of the essential flight services are performed at the stopover. Among them are the boarding of the passengers, their reception by the crew and their disembarkation as well as the transport of luggage. Nevertheless, the Court had already mentioned in Rehder that “places where the aircraft may stop over also do not have a sufficient link to the essential nature of the services resulting from that contract” (Rehder para 40).
This obiter dictum has now been turned into a binding ruling in JW et al. v LOT.
Apparently, the Court wants to restrict the possible places where suits against airlines can be brought. It also invokes, to this effect, the objectives of proximity and of the sound administration of justice and the need for predictability of the competent tribunal (JW et al. v LOT, paras 25 and 26). However, a suit at the place of the stopover is not completely unforeseeable for the airline, especially where the delay occurred there, such as in the present case. Nor would it run against the objectives of proximity and the sound administration of justice if the court there were to hear the dispute.
It remains to be seen whether this case law will also be applied to flights with the place of departure and final destination in third countries and a mere stopover in the EU. It needs to be borne in mind that these flights also fall under the purview of the Passenger Regulation as long as they are operated by an EU airline (see Article 3(1) of the Flight Compensation Regulation). In such cases, the Court may find it convenient to offer the passenger a jurisdiction at the place of the stopover and not only at the airline’s headquarters or place of statutory seat, which could be in a different Member State.
— Thanks to Verena Wodniansky-Wildenfeld for her help in preparing this post.