Milan - With the order n. 18257/19 the United Civil Sections of the Italian Court of Cassation have addressed the question of international jurisdiction in cases of purchase of an air ticket concluded online. The decision stems from a dispute over the loss of baggage born between a well-known airline and two passengers, Italian citizens, who had purchased a ticket on the Copenhagen-Havana route online. Hence the action, before the Italian courts, promoted by the two passengers against the airline company which objected to the lack of jurisdiction, through the proposition of preventive jurisdiction regulation, taking into account that the ticket had been purchased on the main site registered with the its registered office.
The particular procedure for the conclusion of the air transport contract that was taken into consideration by the Court of Cassation is part of the regulation on the competent courts of Article 33 of the 1999 Montreal Convention on the unification of certain rules on air transport of persons and goods (the “Convention”), also in consideration of the non-applicability of the EU regulation n. 1215 of 2012 (c.d. Bruxelles 2 Bis) as a transport contract and not a tourist package. The passenger has the right to claim damages in the territory of a State Party to the Convention, with the possibility of choosing or the court “of the domicile of the carrier or principal place of business, or where it has a place of the destination”. That said, the second paragraph of the aforementioned article provides for the possibility for the injured party or for the person entitled to act, as well as in one of the forums indicated in the previous paragraph, even before the court in which the passenger has fixed and permanent residence, with the condition that in the same territory the carrier performs the activity with its own aircraft or offices or with other carriers, with which there is a commercial agreement, meaning a contract for the supply of services.
The case examined by the Court of Cassation concerns one of the holes indicated in the first paragraph, although the principle expressed in the decision in question is also applicable to the decree “Fifth court” indicated in the second paragraph of the art. 33.The hypothesis of online sale of air tickets, through the official websites of the airlines or the websites of the travel agencies, presents some complexities of application of the uniform international legislation, as this type of distribution is characterized by the fact that the service offered is difficult to identify in a given territory, indeed it can be considered “dematerialized”.
In fact, it is clear that it is impossible for the user, who intends to purchase a flight ticket via the web, to locate exactly where the carrier’s website is registered; it follows that it is difficult for a passenger to identify the place where the carrier’s company has stipulated the contract, as indicated by the aforementioned art. 33 of the Convention.
Starting from these considerations, the solution that was preferred by the Court, even in a protectionist perspective in favor of the user, is that according to which the place where the contract was concluded corresponds to the place where the passenger received the confirmation purchase. In fact, access to the Internet by the consumer would correspond to his residence or domicile, which would therefore be relevant for the identification of the competent State even when the carrier’s website is registered in another country.
These observations take into consideration two factors: on the one hand, the airline that decides to activate the web-based sale of its services must accept the risk of being cited before courts in which it is not present with its own commercial structure; on the other hand, the choice to make the place of conclusion of the contract coincide with the residence or domicile of the purchaser arises in close connection with the evolutionary tendencies of the discipline, especially with reference to the provisions on jurisdiction by the Convention, in the which, according to the Court, recognizes a twofold need to set up a system based on certain or determinable indicators but “which presents suitable corrective measures so as not to frustrate access to justice for travelers who have suffered damage attributable to the carrier’s liability.”
On the basis of these considerations, the United Civil Sections have expressed the following principle: “In the international air transport contract, the exclusive object of which is the purchase of the travel document, between a non-European airline and two Italian citizens domiciled in Italy, in relation to the compensation action proposed by travelers, due to contractual non-performance of damage to property, pursuant to art. 33 co.1 of the Montreal Convention of May 28, 1999, where the bargaining and the purchase took place entirely online, the jurisdiction can be rooted in the domicile of the purchaser, thus having to interpret the criterion of determination of jurisdiction, identified in the establishment to which the contract has been concluded, since it is a competing criterion with that of the destination of the journey and the domicile of the air carrier .”
* Lawyer, Senior Associate - Department of Navigation and Law,
Legance Avvocati Associati