Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

29 February 2024 (*)

(Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Article 5(1) and (3) – Article 7(1) – Compensation to air passengers in the event of cancellation of flights – Nature and basis of the right to compensation – Transfer to a company of the passengers’ claim against the air carrier – Contractual clause that prohibits such a transfer – Article 15 – Exclusion of waiver)

In Case C‑11/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Mercantil n^o 1 de Palma de Mallorca (Commercial Court No 1, Palma de Mallorca, Spain), made by decision of 31 October 2022, received at the Court on 12 January 2023, in the proceedings

Eventmedia Soluciones SL

v

Air Europa Líneas Aéreas SAU,

THE COURT (Third Chamber),

composed of K. Jürimäe (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Third Chamber, N. Piçarra, N. Jääskinen and M. Gavalec, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        Eventmedia Soluciones SL, by R.M. Jiménez Varela, procuradora, and A.M. Martínez Cuadros, abogada,

–        Air Europa Líneas Aéreas SAU, by N. de Dorremochea Guiot, procurador, and E. Olea Ballesteros, abogado,

–        the Spanish Government, by L. Aguilera Ruiz, acting as Agent,

–        the Lithuanian Government, by S. Grigonis and V. Kazlauskaitė-Švenčionienė, acting as Agents,

–        the European Commission, by J.L. Buendía Sierra, N. Ruiz García and G. Wilms, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 5(1)(c), Article 5(3), Article 7(1) and Article 15 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1), as well as Article 6(1) and Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

2        The request has been made in proceedings between Eventmedia Soluciones SL (‘Eventmedia’), to whom the claims of six air passengers have been transferred, and Air Europa Líneas Aéreas SAU (‘Air Europa’) concerning compensation for the cancellation of a flight.

 European Union law

 Regulation (EC) No 44/2001

3        Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) provided, in Article 5(1)(a) thereof:

‘A person domiciled in a Member State may, in another Member State, be sued:

1.      (a)      in matters relating to a contract, in the courts for the place of performance of the obligation in question …’

 Regulation No 261/2004

4        Recitals 1, 7 and 20 of Regulation No 261/2004 are worded as follows:

‘(1)      Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.

…

(7)      In order to ensure the effective application of this Regulation, the obligations that it creates should rest with the operating air carrier who performs or intends to perform a flight, whether with owned aircraft, under dry or wet lease, or on any other basis.

…

(20)      Passengers should be fully informed of their rights in the event of denied boarding and of cancellation or long delay of flights, so that they can effectively exercise their rights.’

5        Article 1(1)(b) of that regulation is worded as follows:

‘This Regulation establishes, under the conditions specified herein, minimum rights for passengers when:

…

(b)      their flight is cancelled …’

6        Point (b) of Article 2 of that regulation defines an ‘operating air carrier’ as being ‘an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger’.

7        Article 3 of that regulation, entitled ‘Scope’, provides, in paragraph 5 thereof:

‘This Regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2. Where an operating air carrier which has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger.’

8        Under Article 5 of Regulation No 261/2004, entitled ‘Cancellation’:

‘1.      In case of cancellation of a flight, the passengers concerned shall:

…

(c)      have the right to compensation by the operating air carrier in accordance with Article 7, unless [they are informed of the cancellation.]

…

(3)      An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

…’

9        Article 7 of that regulation, entitled ‘Right to compensation’, provides in the first subparagraph of paragraph 1 thereof:

‘Where reference is made to this Article, passengers shall receive compensation amounting to:

(a)      EUR 250 for all flights of 1 500 kilometres or less;

(b)      EUR 400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres;

(c)      EUR 600 for all flights not falling under (a) or (b).’

10      Article 15 of that regulation, entitled ‘Exclusion of waiver’, provides:

‘1.      Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.

2.      If, nevertheless, such a derogation or restrictive clause is applied in respect of a passenger, or if the passenger is not correctly informed of his rights and for that reason has accepted compensation which is inferior to that provided for in this Regulation, the passenger shall still be entitled to take the necessary proceedings before the competent courts or bodies in order to obtain additional compensation.’

 Directive 93/13

11      Under Article 6(1) of Directive 93/13:

‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’

12      Article 7(1) of that directive provides:

‘Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

13      Six air passengers affected by the cancellation of a flight from Viru Viru airport, Santa Cruz (Bolivia), to Madrid (Spain), scheduled for 24 March 2022, transferred their compensation claims against Air Europa to the company Eventmedia.

14      Subsequently, Eventmedia brought proceedings against Air Europa before the Juzgado de lo Mercantil n^o 1 de Palma de Mallorca (Commercial Court No 1, Palma de Mallorca, Spain), which is the referring court, seeking compensation of EUR 600 for each of those passengers, under Regulation No 261/2004.

15      Before that court, Air Europa has disputed Eventmedia’s standing to bring proceedings. It asserts that the transfer of claims was not legally valid because it was in breach of the prohibition, laid down in Clause 15(1) of its general conditions of carriage (‘the clause at issue’), on the transfer of passenger rights. Under that clause, ‘the liability of Air Europa and of any carrier, in accordance with Article 1, shall be determined by the conditions of carriage of the carrier issuing the ticket, unless otherwise provided. The passenger’s rights are of a personal nature and the transfer of these rights is not permitted’.

16      The referring court explains that, under Spanish law, an air passenger may bring proceedings against the operating air carrier to assert his or her right to compensation pursuant to Regulation No 261/2004, in a ‘simplified’ procedure, and need not be represented by a lawyer. In practice, air passengers rarely avail themselves of that option as a result of the defence mounted by most air carriers and the complexity of the procedural rules. In addition, an air passenger can grant a power of attorney to enable a lawyer to appear before the court in his or her name and on his or her behalf.

17      Lastly, under Spanish law, an air passenger can transfer his or her claim against an air carrier, including to an entity specialising in claims under Regulation No 261/2004. In such cases, that entity appears in the proceedings in its own name and on its own behalf to defend its interests as the person to whom the claim has been transferred.

18      The referring court points out that the clause at issue limits the possibility for air passengers to transfer their rights in this way. It therefore questions whether such a clause is compatible with EU law.

19      First of all, that court considers it necessary to determine whether a clause included in the general conditions of a contract of carriage that prohibits the transfer of air passengers’ rights constitutes a limitation on obligations vis-à-vis air passengers which is covered by Article 15 of Regulation No 261/2004. If that were the case, the clause at issue would be automatically void as contrary to a mandatory or prohibitive rule within the meaning of Spanish law.

20      Next, the referring court considers that, in a context in which the Spanish courts have adopted divergent approaches, it is crucial to determine the nature of the right to compensation provided for in Article 5 and Article 7(1) of Regulation No 261/2004. In that regard, the judgments of 7 March 2018, flightright and Others (C‑274/16, C‑447/16 and C‑448/16, EU:C:2018:160, paragraph 63), and of 26 March 2020, Primera Air Scandinavia (C‑215/18, EU:C:2020:235, paragraph 49), might suggest that this is a contractual right. Conversely, the fact that under Article 5 of Regulation No 261/2004, read in the light of recital 7 and point (b) of Article 2 thereof, the operating air carrier is liable even if it has not concluded a contract with the air passenger, supports an inference that the air passenger derives his or her right to compensation directly from that regulation.

21      In the alternative, in the event that Article 15 of Regulation No 261/2004 does not preclude a clause that prohibits the transfer of air passengers’ rights, or that the right to compensation provided for in that regulation has a contractual basis, the referring court is uncertain, lastly, as to the interpretation to be given to Directive 93/13. It questions, in that respect, whether, and, if so, under what conditions, it is entitled, in a dispute between two sellers or suppliers, to declare of its own motion that it considers a clause to be unfair where that clause is contained in a contract between one of those sellers or suppliers and a consumer, who has transferred his or her rights to the other seller or supplier.

22      In those circumstances the Juzgado de lo Mercantil n^o 1 de Palma de Mallorca (Commercial Court No 1, Palma de Mallorca) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Can the inclusion in the contract of carriage by air of a clause such as [the clause at issue] be regarded as an inadmissible exception within the meaning of Article 15 of [Regulation No 261/2004], on the ground that it limits the carrier’s obligations by limiting the possibility for passengers to receive compensation for the cancellation of a flight by transferring the claim?

(2)      Can Article 7(1) in conjunction with [Article 5(1)(c) and Article 5(3)] of [Regulation No 261/2004] be interpreted as meaning [that] the payment of compensation for the cancellation of a flight to be paid by the operating carrier is an obligation imposed by [that regulation] irrespective of the existence of a contract of carriage with the passenger and of the culpable breach of the air carrier’s contractual obligations?

…

(3)      [In the alternative, in the event [that] that clause is considered to not constitute an inadmissible exception within the meaning of Article 15 of [Regulation No 261/2004] or it is held that the right to compensation is of a contractual nature,] must [Article 6(1) and Article 7(1)] of [Directive 93/13] be interpreted as meaning that a national court hearing an action regarding the right to compensation for the cancellation of a flight provided for in Article 7(1) of [Regulation No 261/2004] is required to review of its own motion whether a clause in the contract of carriage that does not allow the passenger to transfer [his or her] rights is unfair, where the claim is brought by the transferee[,] who[,] unlike the transferor, is not a consumer or user?

(4)      If it is appropriate to carry out a review of the court’s own motion, may the obligation to inform the consumer and [to] establish whether [he or she claims] that the clause is unfair or [consents] to it be disregarded in the light of the conclusive act of having transferred [his or her] claim in breach of [the potentially] unfair [clause] that does not permit the claim to be transferred?’

 Consideration of the questions referred

 The second question

23      By its second question, which it is appropriate to examine first, the referring court asks, in essence, whether Article 5(1)(c) and Article 5(3) of Regulation No 261/2004, read in conjunction with Article 7(1) thereof, are to be interpreted as meaning that, in the event of cancellation of a flight, the right of air passengers to obtain the compensation referred to in those provisions from the operating air carrier and the corresponding obligation of that air carrier to pay that compensation arise from that regulation, or as meaning that the basis for that right and that obligation is any contract that may have been concluded between the carrier and the air passenger concerned, or even the wrongful failure by that carrier to perform such a contract.

24      According to the settled case-law of the Court, for the purposes of interpreting a provision of EU law, it is necessary to consider not only its wording, but also its context and the objectives pursued by the rules of which it is part (judgments of 11 May 2017, Krijgsman, C‑302/16, EU:C:2017:359, paragraph 24 and the case-law cited, and of 29 September 2022, LOT (Payment of compensation imposed by an administrative authority), C‑597/20, EU:C:2022:735, paragraph 21).

25      Article 5(1)(c) of Regulation No 261/2004 provides that, in the case of cancellation of a flight, the passengers concerned ‘have the right to compensation by the operating air carrier’ in accordance with Article 7 of that regulation, unless they are informed of the cancellation of the flight under the conditions set out in Article 5(1)(c) thereof (judgment of 21 December 2021, Airhelp, C‑263/20, EU:C:2021:1039, paragraph 49). Article 5(3) of that regulation determines the circumstances in which the operating air carrier is not obliged to pay that compensation where the cancellation is caused by extraordinary circumstances (see, to that effect, judgment of 22 December 2008, Wallentin-Hermann, C‑549/07, EU:C:2008:771, paragraph 20).

26      Article 7(1) of Regulation No 261/2004, for its part, establishes flat-rate amounts of compensation to which air passengers are entitled, where reference is made to that provision in that regulation.

27      In the light of the wording of those provisions and in accordance with the case-law of the Court, the right to standardised compensation, calculated on a flat-rate basis and payable by the operating air carrier, is among the essential rights conferred on air passengers by Regulation No 261/2004 (see, to that effect, judgment of 26 March 2020, Primera Air Scandinavia, C‑215/18, EU:C:2020:235, paragraph 37).

28      It follows that, in the event of cancellation of a flight, air passengers’ right to compensation, referred to in Article 5(1)(c) of Regulation No 261/2004, and the operating air carrier’s corresponding obligation to pay the compensation provided for in Article 7(1) thereof arise directly from that regulation. That right and that obligation cannot therefore be regarded as having their basis in any contract that might have been concluded between the air passenger and operating air carrier concerned or, a fortiori, in a wrongful failure by that air carrier to perform such a contract.

29      That interpretation is borne out by the context of Article 5(1)(c), Article 5(3) and Article 7(1) of Regulation No 261/2004, as well as by the objective pursued by that regulation.

30      As regards, in the first place, the context of those provisions, it should be noted, first, that, according to Article 1(1)(b) thereof, Regulation No 261/2004 ‘establishes’, under the conditions set out in that regulation, minimum rights for air passengers when their flight is cancelled.

31      Moreover, it follows from point (b) of Article 2 of Regulation No 261/2004, read in conjunction with Article 3(5) thereof, that a passenger whose flight has been cancelled or delayed may rely on that regulation against the operating air carrier, even if that passenger and that carrier have not concluded a contract with each other (see, to that effect, judgment of 26 March 2020, Primera Air Scandinavia, C‑215/18, EU:C:2020:235, paragraphs 27 to 29).

32      Those provisions therefore support an interpretation to the effect that, in the event of cancellation of their flight, the right of air passengers to the compensation referred to in Articles 5 and 7 of Regulation No 261/2004 arises directly from that regulation.

33      As regards, in the second place, the objective pursued by Regulation No 261/2004, as can be seen from recital 1 thereof, this consists in ensuring a high level of protection for air passengers, so that the rights conferred on those passengers must be interpreted broadly (see, to that effect, judgments of 4 October 2012, Rodríguez Cachafeiro and Martínez-Reboredo Varela-Villamor, C‑321/11, EU:C:2012:609, paragraph 25, and of 30 April 2020, Blue Air – Airline Management Solutions, C‑584/18, EU:C:2020:324, paragraph 93).

34      The interpretation of Article 5(1)(c) of Regulation No 261/2004, read in conjunction with Article 7(1) thereof, set out in paragraph 28 above is consistent with that objective, since it ensures that any air passenger affected by a flight cancellation has a right to compensation, under the conditions and on the terms laid down in those provisions, irrespective of whether or not he or she has concluded a contract of carriage with the operating air carrier.

35      Nor is that interpretation in any way incompatible with the case-law of the Court according to which actions relating to the right to compensation under Regulation No 261/2004 are ‘matters relating to a contract’ within the meaning of Article 5(1) of Regulation No 44/2001 (see, to that effect, judgments of 7 March 2018, flightright and Others, C‑274/16, C‑447/16 and C‑448/16, EU:C:2018:160, paragraphs 63 to 65, and of 26 March 2020, Primera Air Scandinavia, C‑215/18, EU:C:2020:235, paragraph 49). By that case-law, relating to jurisdiction in civil and commercial matters, the Court sought to ensure uniform application of the concept of ‘matters relating to a contract’ within the meaning of that provision, holding that, in order for a contract of carriage to be covered by that concept, it is irrelevant that that contract was concluded by the air passenger not directly with the operating air carrier concerned but with another service provider such as a travel agency. As the Spanish Government and the European Commission have asserted, that case-law does not seek to prejudge the very basis of the right to compensation under Regulation No 261/2004.

36      In that regard, it should be noted that an action whose cause is contractual may seek to assert a claim based on the terms of the contract in question as such or on rules of law that are applicable by reason of that contract (see, to that effect, judgment of 24 November 2020, Wikingerhof, C‑59/19, EU:C:2020:950, paragraph 32 and the case-law cited). In a case such as that in the main proceedings, although the cause of an action for compensation brought by the air passenger or by a company to whom that passenger’s claim has been transferred against the operating air carrier necessarily lies in the existence of a contract, whether with that air carrier or with another provider (see, to that effect, judgment of 26 March 2020, Primera Air Scandinavia, C‑215/18, EU:C:2020:235, paragraphs 50 to 52), the right to compensation on which that passenger or that transferee company may rely in that action, in particular where a flight has been cancelled, arises for its part directly from Article 5(1)(c) of Regulation No 261/2004, read in conjunction with Article 7(1) thereof, as is apparent from paragraphs 28 and 32 above.

37      In the light of all the foregoing reasons, the answer to the second question is that Article 5(1)(c) and Article 5(3) of Regulation No 261/2004, read in conjunction with Article 7(1) thereof, must be interpreted as meaning that, in the event of cancellation of a flight, the right of air passengers to obtain the compensation referred to in those provisions from the operating air carrier and the corresponding obligation of that air carrier to pay that compensation arise directly from that regulation.

 The first question

38      By its first question, which it is appropriate to examine second, the referring court asks, in essence, whether Article 15 of Regulation No 261/2004 is to be interpreted as precluding the inclusion, in a contract of carriage, of a clause that prohibits the transfer of rights enjoyed by air passengers against the operating air carrier by virtue of the provisions of that regulation.

39      Article 15 of Regulation No 261/2004, entitled ‘Exclusion of waiver’, provides, in paragraph 1 thereof, that obligations of air carriers vis-à-vis passengers pursuant to that regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.

40      Pursuant to that provision and having regard to the answer to the second question, the operating air carrier’s obligation to pay the compensation provided for in Article 7(1) of that regulation in the event of cancellation of a flight may not therefore be limited or waived by contract.

41      In that context, it should be added that, having regard to the objective of ensuring a high level of protection for air passengers underlying, in particular, Article 15 of Regulation No 261/2004, and to the broad interpretation that, according to the case-law referred to in paragraph 33 above, should be given to the rights conferred on those passengers, that provision, in so far as it establishes that derogations from those rights are inadmissible, must also be interpreted broadly (see, by analogy, judgment of 30 April 2020, Blue Air – Airline Management Solutions, C‑584/18, EU:C:2020:324, paragraph 102).

42      Accordingly, in view of the use of the adverb ‘notably’ in Article 15 of Regulation No 261/2004 and in the light of that objective, not only the derogations included in a contract of carriage imposing mutual obligations and signed by the air passenger, but also, a fortiori, the derogations contained in other documents drawn up unilaterally by the operating air carrier and on which that air carrier seeks to rely against the air passengers concerned, must be considered to be inadmissible (see, to that effect, judgment of 30 April 2020, Blue Air – Airline Management Solutions, C‑584/18, EU:C:2020:324, paragraph 102). The same provision may therefore apply to derogations included in the general conditions of carriage.

43      Furthermore, having regard to the objective referred to above and in order to ensure the effectiveness of the right of air passengers to compensation, not only derogations or limitations that relate directly to that right as such, but also those that restrict the means for exercising that right when compared with the applicable statutory provisions, to the detriment of those passengers, must be considered to be inadmissible for the purposes of Article 15 of Regulation No 261/2004.

44      In order to ensure a high level of protection for air passengers and to enable them effectively to exercise their rights in accordance with the objective set out in recital 20 of Regulation No 261/2004, it is necessary to guarantee a passenger affected by a flight cancellation the freedom to choose the most effective way in which to defend his or her right, including by allowing that passenger to decide: (i) to approach the operating air carrier directly; (ii) to bring proceedings before the courts having jurisdiction; or (iii), where provided for by the relevant national law, to transfer his or her claim to a third party in order to spare him- or herself difficulties and costs that might deter him or her from taking steps personally in relation to that carrier with the prospect of a limited financial return.

45      It follows that a clause included in the general conditions of a contract of carriage that prohibits the transfer of air passengers’ rights against the operating air carrier constitutes an inadmissible derogation for the purposes of Article 15 of Regulation No 261/2004.

46      In the light of all the foregoing reasons, the answer to the first question is that Article 15 of Regulation No 261/2004 must be interpreted as precluding the inclusion, in a contract of carriage, of a clause that prohibits the transfer of rights enjoyed by air passengers against the operating air carrier by virtue of the provisions of that regulation.

 The third and fourth questions

47      Having regard to the answers given to the first and second questions, there is no need to answer the third and fourth questions.

 Costs

48      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

1.      Article 5(1)(c) and Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read in conjunction with Article 7(1) thereof,

must be interpreted as meaning that, in the event of cancellation of a flight, the right of air passengers to obtain the compensation referred to in those provisions from the operating air carrier and the corresponding obligation of that air carrier to pay that compensation arise directly from that regulation.

2.      Article 15 of Regulation No 261/2004

must be interpreted as precluding the inclusion, in a contract of carriage, of a clause that prohibits the transfer of rights enjoyed by air passengers against the operating air carrier by virtue of the provisions of that regulation.

[Signatures]

*      Language of the case: Spanish.

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