EUPillar Joined cases 06/5646/A and 07/933/A - M.Z. and F.O. v. s.a. Switch and XL Airways; M.Z. and F.O. v. Elvia

Summary

S.A. Switch is a tour operator which proposes several trips on its website. Mrs. F.O. contacted Switch by phone and on 1 February 2006 she signed an agreement for an all inclusive trip to Fuerteventura for the total sum of 1531 EUR, for herself, her mother and son. This included a complimentary travel insurance policy with the insurance company Elvia, which is governed by Swiss law, but has a branch in France. The flights were carried out by XL Airways France, also seated in France. At their arrival in Fuerteventura, the luggage of Mrs. M.Z. and F.O. was missing. After having submitted several insurance claims in March 2006, Mrs. M.Z. and F.O. finally sued the airline company and the travel agent before the Liège Court of First Instance on 8 November 2006. On 24 January 2007 they also served the insurer, Elvia. Both cases were joined by the court. Switch and XL Airways France both contest the international jurisdiction of the court. DECISION OF THE COURT 1. The claim against Switch The appellants are consumers within the meaning of Art. 15 Brussels I. Switch offers journeys through its website www.partirpascher.com. The appellants consulted another website, www.switchtour.be, to plan their trip. Both websites do not allow to book a trip directly online, but provide a phone number in France to do the booking. Mrs. F.O. consulted with the travel agency on the phone and made the booking by fax. The Council and the Commission made a joint statement on Article 15. This statement does not have legislative value, and to this day the ECJ has not yet rendered a decision on the interpretation of Art. 15(1)(c). In the case at hand, the Court decides that Switch’s activities are directed at Belgian consumers, since: The websites invite the consumer to make a reservation by phone with the mention “Réservation 24h/24 – 7 jours/7”; The website www.partirpascher.com literally boasts that they are the “first online tour operator in France” and that they are able to offer journeys for the lowest prices since they “cut out the middle man” by “marketing our offers directly on our website”; The website www.switchtour.be has a “.be” extension, ie a mirror site specific to Belgium; The tour operator actually concluded a contract at a distance with Belgian consumers. Therefore, Art. 15 Brussels I is applicable, and Mrs. M.Z. and F.O. are allowed, pursuant to Art. 16 Brussels I, to sue Switch before the courts of their domicile. Moreover, the choice of court clause included in the general terms and conditions of sale of Switch, which confers jurisdiction on the courts of its corporate seat, is not enforceable. Not one of the hypotheses of Art. 17 Brussels I is fulfilled. 2. The claim against XL Airways France and the action in warranty of Switch against XL Airways France Art. 15(3) Brussels I provides that “This Section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation.” XL Airways France only offered travel, without a combination with accommodation. The Court applies the Montreal Convention, which takes precedence over Brussels I (cf. Art. 71). 3. The claim against Elvia The Court of First Instance of Liège has jurisdiction pursuant to Art. 9(1) Brussels I. Moreover, Elvia does not even contest the jurisdiction of the Belgian courts. SHORT CRITIQUE On 7 December 2010, two years after the present judgment of the Court of First Instance of Liège, the ECJ handed down its judgment in Pammer/Hotel Alphenhof on the correct interpretation of Art. 15 Brussels I Regulation (C-585/08). Only one of the criteria used by the court of Liège can be found in the list given by the ECJ (use of a top-level domain name other than that of the Member State in which the trader is established), but since that list is not exhaustive it is possible that the court of Liège complied with the standard that has – by now – been set by the ECJ.