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A Textbook Example of Art 17 Rome II: Higher Regional Court of Cologne, 27 March 2020
Art. 17 of the Rome II Regulation, which transposes an element of US conflicts theory (the concept of local data) into a European choice-of-law instrument, is certainly one of the more controversial provisions of the Regulation. It stipulates that
[i]n assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to the liability.
In a highly illustrative decision of 27 March 2020 (1 U 95/19), the Higher Regional Court of Cologne (upholding a decision from the Regional Court of Bonn) has provided a textbook example of its application in practice.
The case involved two German citizens who had collided while paragliding/hang gliding in Italy. While one had remained unharmed, the other one had sustained several injuries and, upon returning home, decided to sue for damages.
As both parties were habitually resident in the same Member State – in fact, they lived less than 50 km away from each other, in Cologne and Bonn, respectively – the Court naturally applied German law pursuant to Art. 4(2) Rome II. Under the applicable tort statute, the fact that both parties had engaged in aerial activities meant that the degree to which the defendant would be liable depended on the respective dangerousness of each party’s activity as well as on whether or not one party had behaved negligently.
While the first factor already put the claimant on the back foot with the Court deeming his hang glider significantly more dangerous than the defendant’s paraglider, the Court went on to apply two Italian presidential decrees as well as the general regulations approved by the Italian Civil Aviation Authority (Ente Nazionale per l’Aviazione Civile, ENAC) on the basis of Art. 17 Rome II in order to establish that the claimant had negligently violated the applicable aviation rules. Accordingly, his claim failed in its entirety.
„Matters relating to a contract“ without contract (with the claimant) – ECJ, Judgment of 26 March 2020, Case C-215/18, Libuše Králová v Primera Air Scandinavia A/S, on Article 5 no. 1 Brussels I Regulation
In this case, a Czech passenger entered into a package travel contract with a Czech travel agency on a flight from Prague to Keflavik in Iceland and on accommodation there. The flight was operated by the Danish air carrier Primera Air Scandinavia. The flight was delayed by four hours. This is why the passenger brought an action for compensation of EUR 400 against the airline under the 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. The proceedings were instituted before a District Court in Prague.
In the case of the provision of services, Art. 5 no. 1 lit. b second indent Brussels I Regulation provides for jurisdiction at the place in a Member State where, under the contract, the services were provided or should have been provided. In respect of air carriage, these include, at the passenger’s choice, the courts of the place of departure (as well as the place of arrival) of the flight, see ECJ, judgment of 9 July 2009, Case C-204/08 – Peter Rehder v Air Baltic Corporation.
Nevertheless, the Court held that, first, that the concept of an operating air carrier subject to the Passenger Rights Regulation includes not only the air carrier which operates or has the intention of operating a flight under a contract with a passenger but also the carrier which operates or intends to operate a flight on behalf of a third party which has concluded a contract with that passenger. Therefore, the passenger may rely on the regulation on the rights of air passengers against the carrier, even in the absence of a contract between the passenger and the carrier.
The Court further observed that even though the conclusion of a contract is not a requirement for the application of the special provisions on matters relating to a contract of the Article 5 no. 1 Brussels I Regulation, reliance on those provisions presupposes the existence of a voluntary commitment by one party to another, not necessarily vis-à-vis the claimant, as opposed to Articles 15 et seq. (see para. 58).
Thus, the Court concludes, an operating air carrier that did not enter into a contract with the passenger but is liable to that passenger on behalf of a travel agency in respect of the obligations arising from the Passenger Rights Regulation must be regarded as fulfilling the freely assumed obligations vis-à-vis that agency. Therefore, the passenger may bring an action for compensation against the carrier before the courts of the place of departure of the flight.
The Court had already decided similarly before: Those previous (joined) cases involved compensation for long delays in flights provided by an operating air carrier which had not entered into contracts with the passengers concerned, since they had bought their airline tickets from other airlines before bringing an action against the carrier that operated the segment of the connecting flight that included that delay at issue, see ECJ, judgment of 7 March 2018, joined cases C?274/16, C?447/16 and C?448/16 – flightright and Others.
The judgment is available, currently only in French, German and other languages, but not [yet] in English here.
A New Interesting Book on PIL Aspects of Corporate Social Responsibility
A book edited by Catherine Kessedjian & Humberto Cantú Rivera and titled “Private International Law Aspects of Corporate Social Responsibility” has just been released electronically and in hard copy. As said in the abstract of the book, “This book addresses one of the core challenges in the corporate social responsibility (or business and human rights) debate: how to ensure adequate access to remedy for victims of corporate abuses that infringe upon their human rights. However, ensuring access to remedy depends on a series of normative and judicial elements that become highly complex when disputes are transnational. In such cases, courts need to consider and apply different laws that relate to company governance, to determine the competent forum, to define which bodies of law to apply, and to ensure the adequate execution of judgments. The book also discusses how alternative methods of dispute settlement can relate to this topic, and the important role that private international law plays in access to remedy for corporate-related human rights abuses…”
Readers of this blog might be interested in having one to be stored for your own use. If this is the case, please visit the homepage of this book to know more:https://www.springer.com/gp/book/9783030351861?wt_mc=Internal.Event.1.SEM.ChapterAuthorCongrat
Many thanks for your attention and take care in this globally difficult time!