JUDGMENT OF THE COURT (Third Chamber)

7 March 2018 ( *1 )

(Reference for a preliminary ruling — Area of Freedom, Security and Justice — Jurisdiction in civil and commercial matters — Regulation (EC) No 44/2001 — Article 5(1) — Regulation (EU) No 1215/2012 — Article 7(1) — Concept of ‘matters relating to a contract’ — Contract for the provision of services — Connecting flight operated by different air carriers — Concept of ‘place of performance’ — Regulation (EC) No 261/2004 — Right of air passengers to compensation for denied boarding and for the long delay of a flight — Action for compensation brought against an operating air carrier not domiciled in the territory of a Member State or with which the passengers do not have contractual relations)

In Joined Cases C‑274/16, C‑447/16 and C‑448/16,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Amtsgericht Düsseldorf (Local Court, Düsseldorf, Germany) and from the Bundesgerichtshof (Federal Court of Justice, Germany) made by decisions of 3 May (C‑274/16) and 14 June 2016 (C‑447/16 and C‑448/16), received at the Court on 13 May and 11 August 2016, in the proceedings

flightright GmbH

v

Air Nostrum , Líneas Aéreas del Mediterráneo SA (C‑274/16),

Roland Becker

v

Hainan Airlines Co . Ltd (C‑447/16),

and

Mohamed Barkan,

Souad Asbai,

Assia Barkan,

Zakaria Barkan,

Nousaiba Barkan

v

Air Nostrum, Líneas Aéreas del Mediterráneo SA (C‑448/16),

THE COURT (Third Chamber),

composed of L. Bay Larsen, President of the Chamber, J. Malenovský, M. Safjan (Rapporteur), D. Šváby and M. Vilaras, Judges,

Advocate General: M. Bobek,

Registrar: R. Schiano, Administrator,

having regard to the written procedure and further to the hearing on 6 July 2017,

after considering the observations submitted on behalf of:

–

flightright GmbH, by J.A. Blaffert, F. Schaal, A. Seegers, D. Tuac and O. de Felice, Rechtsanwälte,

–

Mr Becker, by C. Hormann, Rechtsanwalt,

–

Mohamed Barkan, Souad Asbai and their minor children, Assia, Zakaria and Nousaiba Barkan, by J. Kummer and P. Wassermann, Rechtsanwälte,

–

Air Nostrum, Líneas Aéreas del Mediterráneo SA, by V. Beck and E. Schott, Rechtsanwälte,

–

the French Government, by E. de Moustier, acting as Agent,

–

the Portuguese Government, by L. Inez Fernandes and M. Figueiredo and by M. Cancela Carvalho, acting as Agents,

–

the Swiss Government, by M. Schöll, acting as Agent,

–

the European Commission, by M. Wilderspin and M. Heller, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 19 October 2017,

gives the following

Judgment

1These requests for a preliminary ruling concern the interpretation of Article 5(1) of 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 ), and of Article 7(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( OJ 2012 L 351, p. 1 ).

2The requests have been made in proceedings between, firstly, flightright GmbH, an undertaking established in Potsdam (Germany), Mr Mohamed Barkan, Mrs Souad Asbai and their minor children Assia, Zakaria and Nousaiba Barkan (‘the Barkan family’) and Air Nostrum, Líneas Aéreas del Mediterráneo SA (‘Air Nostrum’), an air carrier established in Valencia (Spain), concerning the payment of compensation for a flight delay (Cases C‑274/16 and C‑448/16), and, secondly, Mr Roland Becker and Hainan Airlines Co. Ltd, an air carrier established in Haikou (China), concerning the payment of compensation for denied boarding (Case C‑447/16).

Legal context

Regulation No 44/2001

3It is apparent from recital 2 of Regulation No 44/2001 that the latter aims, in the interests of the sound operation of the internal market, to implement ‘provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation’.

4Recitals 11 and 12 of that regulation state:

‘(11)

The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.

(12)

In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.’

5The rules of jurisdiction are set out in Chapter II of that regulation.

6Article 2(1) of Regulation No 44/2001, which is included in Section 1 of Chapter II thereof, provides:

‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’

7Under Article 4(1) of Regulation No 44/2001:

‘If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall … be determined by the law of that Member State.’

8Article 5(1) of that regulation, which is included in Section 2 of Chapter II thereof, entitled ‘Special jurisdiction’, provides:

‘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;

(b)

for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

–

in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

–

in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;

(c)

if subparagraph (b) does not apply then subparagraph (a) applies.’

9Article 60(1) of that regulation provides:

‘For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its:

(a)

statutory seat, or

(b)

central administration, or

(c)

principal place of business.’

Regulation No 1215/2012

10Regulation No 1215/2012 repealed Regulation No 44/2001. The wording of recital 4 thereof is almost identical to that of recital 2 of Regulation No 44/2001.

11Recitals 15 and 16 of Regulation No 1215/2012 state:

‘(15)

The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.

(16)

In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. …’

12Under Section 1 of Chapter II of that regulation, entitled ‘General provisions’, Article 4(1) thereof is drafted in terms identical to those of Article 2(1) of Regulation No 44/2001.

13Under Section 2 of Chapter II of Regulation No 1215/2012, entitled ‘Special jurisdiction’, Article 7(1) thereof is drafted in terms almost identical to those of Article 5(1) of Regulation No 44/2001.

14In accordance with Article 66(1) of Regulation No 1215/2012, that regulation applies only to legal proceedings instituted on or after 10 January 2015.

Regulation (EC) No 261/2004

15According to recitals 1, 2, 7 and 8 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 ):

‘(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.

(2)

Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers.

…

(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 …

(8)

This Regulation should not restrict the rights of the operating air carrier to seek compensation from any person, including third parties, in accordance with the law applicable.’

16Article 1 of Regulation No 261/2004, entitled ‘Subject’, provides, in paragraph 1:

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

(a)

they are denied boarding against their will;

(b)

their flight is cancelled;

(c)

their flight is delayed.’

17Article 2 of Regulation No 261/2004, entitled ‘Definitions’, is worded as follows:

‘For the purposes of this Regulation:

…

(b)

“operating air carrier” means 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;

…

(g)

“reservation” means the fact that the passenger has a ticket, or other proof, which indicates that the reservation has been accepted and registered by the air carrier or tour operator;

(h)

“final destination” means the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight; alternative connecting flights available shall not be taken into account if the original planned arrival time is respected;

…’

18Article 3 of Regulation No 261/2004, entitled ‘Scope’, provides:

‘(1) This Regulation shall apply:

(a)

to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;

…

(2) Paragraph 1 shall apply on the condition that passengers:

(a)

have a confirmed reservation on the flight concerned …

…

(5) 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.

…’

19Article 4 of Regulation No 261/2004, entitled ‘Denied boarding’, states in paragraph 3:

‘If boarding is denied to passengers against their will, the operating air carrier shall immediately compensate them in accordance with Article 7 …’

20Article 5 of that regulation, entitled ‘Cancellation’, provides, in paragraph 1(c):

‘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:

(i)

they are informed of the cancellation at least two weeks before the scheduled time of departure; or

(ii)

they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or

(iii)

they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.’

21Article 7 of that regulation, entitled ‘Right to compensation’, provides, in paragraph 1:

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

(a)

EUR 250 for all flights of 1500 kilometres or less;

(b)

EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres;

(c)

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

In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger’s arrival after the scheduled time.’

The disputes in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

Case C‑274/16

22As is apparent from the order for reference, two passengers booked air transport on two flights (a seat each) (‘the connecting flight’) with the airline Air Berlin PLC & Co. Luftverkehrs KG (‘Air Berlin’), under a single booking reference, from Ibiza (Balearic Islands, Spain) to Düsseldorf (Germany), with a connection in Palma de Majorca (Balearic Islands, Spain).

23The first leg of that connecting flight, operated by Air Nostrum, was scheduled to leave Ibiza on 25 July 2015 at 18:40 and to land in Palma de Majorca on the same day at 19:20.

24As regards the second leg, between Palma de Majorca and Düsseldorf, operated by Air Berlin, it was scheduled to leave on 25 July 2015 at 20:05 and to land in Düsseldorf the same day at 22:25.

25However, the first flight, between Ibiza and Palma de Majorca, was delayed and the passengers, consequently, missed the second flight to Düsseldorf, where they finally arrived on 26 July 2015 at 11:32 on a flight operated by Air Berlin.

26The two passengers at issue assigned their claims to possible compensation for that delay to flightright. The latter brought an action against Air Nostrum, as the operating air carrier carrying out the first flight, before the Amtsgericht Düsseldorf (District Court, Düsseldorf, Germany).

27That court notes that the hearing of that action depends on the existence of its international jurisdiction. That jurisdiction is available only if, as regards the connecting flight at issue, Düsseldorf can be considered to be the ‘place of performance of the obligation in question’, within the meaning of Article 7(1) of Regulation No 1215/2012.

28In those circumstances the Amtsgericht Düsseldorf (District Court, Düsseldorf) decided to stay the proceedings before it and to refer the following question to the Court for a preliminary ruling:

‘In the case where passengers are carried on a flight which consists of two connecting flights without any significant stopover at the connecting airport, is the place of arrival of the second leg of the journey to be regarded as being the place of performance under Article 7(1)(a) of Regulation No 1215/2012 in the case where the claim which has been brought is directed against the air carrier which operated the first leg of the journey on which the irregularity took place and transport on the second leg of the journey was operated by a different air carrier?’

Case C‑447/16

29Mr Becker concluded with Hainan Airlines, which is domiciled outside the European Union and which does not have an establishment in Berlin (Germany), a contract for carriage by air comprising the flights under a single booking, on 7 August 2013, from Berlin to Beijing (China) with a connecting flight from Brussels (Belgium).

30On the day of departure, at Berlin airport, Mr Becker was checked-in for both flights. He received the two corresponding boarding cards and his luggage was checked through directly to Beijing.

31Carriage on the first flight, operated, in accordance with the booking, by the Belgian air carrier Brussels Airlines and which was scheduled to land in Brussels on 7 August 2013 at 08:00, took place according to schedule. Carriage on the second flight, which was to be operated by Hainan Airlines and which was scheduled to leave Brussels on 7 August 2013 at 13:40, did not take place. Mr Becker claims, in that regard, that he was denied boarding on that flight at the departure gate at Brussels airport without good reason and against his wishes.

32Mr Becker returned by air to Berlin and booked a direct flight from Berlin to Beijing. He arrived in Beijing on 8 August 2013.

33By his action brought before the Amtsgericht Berlin-Wedding (District Court, Berlin-Wedding, Germany), Mr Becker requested inter alia, in accordance with Article 7(1)(c) of Regulation No 261/2004, compensation amounting to EUR 600, plus interest.

34By judgment of 4 November 2014, that court found that the German courts did not have international jurisdiction and dismissed Mr Becker’s action as inadmissible. Mr Becker brought an appeal against that judgment before the Landgericht Berlin (Regional Court, Berlin, Germany). By judgment of 1 July 2015, that court dismissed Mr Becker’s appeal on the ground that his action should have been brought before the Belgian courts, since only Brussels constitutes the place of performance of the flight from Brussels to Beijing.

35Mr Becker brought an appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice, Germany). The latter considers that, in light of the unitary character of Hainan Airlines’ contractual obligation to carry Mr Becker from Berlin to Beijing, Berlin-Tegel airport can be considered, in accordance with the judgment of the Court of 9 July 2009, Rehder ( C‑204/08 , EU:C:2009:439 ), to be the place of performance of all of Hainan Airlines’ contractual obligations, including the obligations provided in connection with the flight from Brussels to Beijing which was subsequent to the flight from Berlin to Brussels, in so far as Mr Becker, as a passenger, had no influence over whether Hainan Airlines itself would also operate the latter flight or whether it would use another air carrier for that purpose.

36In those circumstances the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings before it and to refer the following question to the Court for a preliminary ruling:

‘Where passengers are carried on two flights without any significant stopover at the connecting airports, is the place of departure of the first leg of the journey to be regarded as being the place where the services were provided under the second indent of Article 5(1)(b) of Regulation … No 44/2001, even when the claim advanced in the application for compensation under Article 7 of Regulation … No 261/2004 is based on a disruption to the second leg of the journey and the action is brought against the party to the contract of carriage, which, although it was the operating air carrier for the second flight, was not the operating air carrier for the first flight?’

Case C‑448/16

37The Barkan family booked a connecting flight from Melilla (Spain) to Frankfurt am Main (Germany) via Madrid (Spain) with the airline Iberia, Líneas Aéreas de España (‘Iberia’) for 7 August 2010. It is apparent from the booking confirmation issued by Iberia that the flight between Melilla and Madrid was to be operated by Air Nostrum and that the flight between Madrid and Frankfurt am Main was to be operated by Iberia, without a significant connecting time between those two flights.

38Since the departure of the flight between Melilla and Madrid was delayed by 20 minutes, the Barkan family missed the second flight to Frankfurt am Main and reached its final destination with a four-hour delay.

39By judgment of 28 January 2015, the Amtsgericht Frankfurt am Main (District Court, Frankfurt am Main, Germany), before which the Barkan family brought an action inter alia for compensation amounting to EUR 250 for each member of that family in relation to that delay, pursuant to Regulation No 261/2004, ordered Air Nostrum to pay compensation in accordance with the applicants’ claims.

40By judgment of 20 August 2015, the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany), ruling on an appeal brought by Air Nostrum, found that the German courts did not have international jurisdiction. According to that court, only Melilla and Madrid could be regarded as the places of performance for the flight between Melilla and Madrid, during which the incident took place, since both flights must be considered to be separate flights despite the single booking.

41The Barkan family brought an appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice). That court considers, in the first place, that, even if it is not disputed that there is no direct contractual relationship between the Barkan family and Air Nostrum, that fact has no impact on the contractual nature of the right to compensation provided for by Regulation No 261/2004. In the second place, according to that court, the fact that Air Nostrum, as operating air carrier, has no obligations to fulfil at the final destination of the connecting flight, namely Frankfurt am Main, does not preclude that that place can be classified as the ‘place of performance’ for the purposes of Article 5(1) of Regulation No 44/2001, in so far as Regulation No 261/2004 seeks to enhance and not weaken the legal position of air passengers. Therefore, it seems justified that the contractual obligations to be fulfilled at the final destination of the connecting flight by the contracting partner of the Barkan family, namely Iberia, be imposed on Air Nostrum in its capacity as operating air carrier. Moreover, from the point of view of substantive law, the operating air carrier should, in any event, compensate the passenger where he reaches his final destination after a long delay as a result of a delayed feeder flight operated by that carrier.

42In those circumstances the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings before it and to refer the following questions to the Court for a preliminary ruling:

‘(1)

Is Article 5(1)(a) of … Regulation … No 44/2001 … to be interpreted as meaning that the concept of “matters relating to a contract” also covers a claim for compensation made under Article 7 of Regulation … No 261/2004 … which is brought against an operating air carrier with which the passenger concerned does not have contractual relations?

(2)

In so far as Article 5(1) of Regulation … No 44/2001 is applicable:

Where passengers are transported on two flights without any significant stopover at the connecting airports, is the passenger’s final destination to be regarded as the place where the services were provided under the second indent of Article 5(1)(b) of Regulation … No 44/2001 even when the claim advanced in the application for compensation under Article 7 of Regulation … No 261/2004 is based on a disruption to the first leg of the journey and the action is brought against the operating air carrier of the first flight, which is not party to the contract of carriage?’

43By decision of the President of the Court of 19 August 2016, Cases C‑447/16 and C‑448/16 were joined for the purposes of the written and oral procedure and the judgment, and by decision of the President of the Court of 14 September 2016, Cases C‑274/16, C‑447/16 and C‑448/16 were joined for the purposes of the oral procedure and the judgment.

Consideration of the questions referred

The question referred in Case C‑447/16

Admissibility

44The European Commission disputes the applicability of Regulation No 44/2001 in the main proceedings and, consequently, the admissibility of the question referred in Case C‑447/16.

45According to the Commission, it is apparent from the order for reference and from the national case file that Hainan Airlines is domiciled outside the European Union and does not have an establishment in Berlin. It can be deduced therefrom that, pursuant to Article 60 of Regulation No 44/2001, that airline is not domiciled in the territory of a Member State, which excludes the application of Article 5 of that regulation and entails the application of Article 4 thereof, according to which, if the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall be determined by the law of that Member State, subject to the application of exclusive jurisdiction and the prorogation of jurisdiction under Articles 22 and 23 of that regulation.

47In this case, the Bundesgerichtshof (Federal Court of Justice) asks the Court about the interpretation of the concept of ‘place of performance’, within the meaning of the second indent of Article 5(1)(b) of Regulation No 44/2001, in connection with the right of air passengers to compensation, based on Article 4(3) and Article 7 of Regulation No 261/2004. As is apparent from the order for reference, that interpretation is essential in order to determine the court having jurisdiction over the dispute in the main proceedings.

48Therefore, even the question of the possible inapplicability of Regulation No 44/2001 to the dispute in the main proceedings implies the need, for the Court, to interpret the provisions of that regulation.

49Consequently, the question referred in Case C‑447/16 is admissible.

Substance

50By its question, the referring court asks, in essence, whether the second indent of Article 5(1)(b) of Regulation No 44/2001 must be interpreted as meaning that it applies to a defendant domiciled in a third State, such as the defendant in the main proceedings.

51In that regard, it should be noted that Article 5 of Regulation No 44/2001 applies only to persons domiciled in a Member State. In accordance with Article 60(1) of that regulation, a company is domiciled at the place where it has its statutory seat, central administration, or principal place of business.

52It is apparent from the order for reference that Hainan Airlines has its seat outside of the European Union, namely in China, and does not have a branch in Berlin (Germany). Moreover, nothing in that order allows it to be concluded that that airline operates a branch in another Member State.

53Consequently, in this case, it is necessary to apply Article 4(1) of Regulation No 44/2001, in accordance with which, if the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State is to be determined by the law of that Member State.

54For the sake of completeness, it should be noted that it is settled case-law that, in accordance with the principle of effectiveness, rules under national law cannot make it impossible or excessively difficult to exercise the rights conferred by EU law (see, to that effect, judgment of 8 June 2017, Vinyls Italia, C‑54/16 , EU:C:2017:433 , paragraph 26 and the case-law cited), such as those resulting from Regulation No 261/2004.

55In light of the foregoing considerations, the answer to the question referred in Case C‑447/16 is that the second indent of Article 5(1)(b) of Regulation No 44/2001 must be interpreted as not applying to a defendant domiciled in a third State, such as the defendant in the main proceedings.

The questions referred in Cases C‑274/16 and C‑448/16

Consideration of the first question in Case C‑448/16

57As a preliminary remark, it is necessary to point out that, although the referring court in Case C‑274/16 does not raise any issues in that regard, the answer to the first question in Case C‑448/16 is relevant also to Case C‑274/16 in so far as it follows from the order for reference in that case that, in the circumstances of this case, the operating air carrier is not the contracting partner of the passengers concerned either. It should be added, in that regard, that Case C‑274/16 falls, ratione temporis , within the scope of Regulation No 1215/2012, Article 7(1) of which is worded in terms almost identical to those of Article 5(1) of Regulation No 44/2001, the Court’s interpretation of which maintains the entire scope of that first provision (see, to that effect, judgment of 9 March 2017, Pula Parking, C‑551/15 , EU:C:2017:193 , paragraph 31 and the case-law cited).

65In light of the foregoing considerations, the answer to the first question in Case C‑448/16 is that Article 5(1)(a) of Regulation No 44/2001 must be interpreted as meaning that the concept of ‘matters relating to a contract’, for the purposes of that provision, covers a claim brought by air passengers for compensation for the long delay of a connecting flight, made under Regulation No 261/2004, against an operating air carrier with which the passenger concerned does not have contractual relations.

The question in Case C‑274/16 and the second question in Case C‑448/16

66By the question in Case C‑274/16 and by the second question in Case C‑448/16, the referring courts ask, in essence, whether the second indent of Article 5(1)(b) of Regulation No 44/2001 and the second indent of Article 7(1)(b) of Regulation No 1215/2012 must be interpreted as meaning that, in the case of a connecting flight, the ‘place of performance’ of that flight, for the purposes of those provisions, is the place of arrival of the second flight, where the carriage on both flights was operated by two different air carriers and the action for compensation for the long delay of that connecting flight under Regulation No 261/2004 is based on an irregularity which took place on the first of those flights, operated by the air carrier with which the passengers concerned do not have contractual relations.

70The rule relating to special jurisdiction in the provision of services, provided for in the second indent of Article 5(1)(b) of Regulation No 44/2001 and the second indent of Article 7(1)(b) of Regulation No 1215/2012, designates the court of ‘the place in a Member State where, under the contract, the goods were delivered or should have been delivered’ as having jurisdiction.

72That finding is not called into question by the fact that the operating air carrier with which the passengers concerned do not have contractual relations operates only the carriage on a flight which does not finish at the place of arrival of the second leg of a connecting flight in so far as the contract for carriage by air relating to the connecting flight covers the carriage of those passengers to the place of arrival of the second leg.

76In that regard, Air Nostrum’s argument, according to which it would be impossible for it, as operator of a domestic flight in Spain, to assess the risk of being sued before a court in Germany, cannot be accepted.

78In light of the foregoing considerations, the answer to the question in Case C‑274/16 and to the second question in Case C‑448/16 is that the second indent of Article 5(1)(b) of Regulation No 44/2001 and the second indent of Article 7(1)(b) of Regulation No 1215/2012 must be interpreted as meaning that, in the case of a connecting flight, the ‘place of performance’ of that flight, for the purposes of those provisions, is the place of arrival of the second leg, where the carriage on both flights was operated by two different air carriers and the action for compensation for the long delay of that connecting flight under Regulation No 261/2004 is based on an irregularity which took place on the first of those flights, operated by the air carrier with which the passengers concerned do not have contractual relations.

Costs

79Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.The second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not applying to a defendant domiciled in a third State, such as the defendant in the main proceedings.

2.Article 5(1)(a) of Regulation No 44/2001 must be interpreted as meaning that the concept of ‘matters relating to a contract’, for the purposes of that provision, covers a claim brought by air passengers for compensation for the long delay of a connecting flight, made under 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, against an operating air carrier with which the passenger concerned does not have contractual relations.

3.The second indent of Article 5(1)(b) of Regulation No 44/2001 and the second indent of Article 7(1)(b) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in the case of a connecting flight, the ‘place of performance’ of that flight, for the purposes of those provisions, is the place of arrival of the second leg, where the carriage on both flights was operated by two different air carriers and the action for compensation for the long delay of that connecting flight under Regulation No 261/2004 is based on an irregularity which took place on the first of those flights, operated by the air carrier with which the passengers concerned do not have contractual relations.

[Signatures]

( *1 ) Language of the case: German.