The recent order of the Supreme Court (Corte di Cassazione, Sezioni Unite) of February 13th 2020 no. 3561 provides the correct interpretation of the rules on jurisdiction in the matter of air transport contract and, in particular, on the relations between legal sources (European and international) on the subject. 

In the present case, two spouses of Italian nationality had purchased two airline tickets online on the website of the airline, and the contract they concluded contained the clause providing for the exclusive jurisdiction of the Irish Court (court of the place where the airline has its head office).

Following the cancellation of the flight, the two spouses brought the airline before the Italian Court for damages, and the defendant objected the lack of jurisdiction. Therefore, the two spouses (claimant) requested the “regolamento” of jurisdiction ex art. 41 Italian code of civil procedure to the Supreme Court.

The claimant considered that the Italian courts had jurisdiction on the basis of art.33 par.1 of the Montreal Convention, which was ratified by Italy and Ireland and transposed into Community law by Decision 2001/539/EC, which provides that «Legal action for damages shall be brought, at the choice of the claimant, in the territory of one of the States that are parties, either before the Court of the domicile of the carrier or the principal place of business or the place where the carrier owns a company which concluded the contract, or before the Court of the place of destination», since the place of destination of the flight was Italy; the claimant also invoked Article. 49 of the same Convention establishing the nullity of "all clauses contained in the transport contract and all special agreements concluded before the occurrence of the damage with which the parties seek to circumvent the provisions of this Convention either by determining the applicable legislation or by amending the rules on jurisdiction».

On the other hand, the defendant airline considered that the jurisdiction of the Irish Court under the jurisdiction clause accepted by the claimant at the time of the online conclusion of the contract existed, by reference to Article 25 of Regulation 1215/2012, which provides that the parties may agree on the jurisdiction of a specific Court, provided that such agreement is made in writing. On that point, however, the claimant relied on the article 71 par. 1 of the same EU Regulation 1215/2012 according to which «This Regulation is without prejudice to conventions, of which the Member States are contracting parties, governing jurisdiction, recognition and enforcement of judgments in particular matters» and concluded that Article 33 of the Montreal Convention, as already mentioned, prevailed in any event.

The Supreme Court, in the course of jurisdictional “regolamento”, confirmed the thesis of the claimant, establishing the prevalence of art.33 of the Montreal Convention on the contractual clause of jurisdiction. Moreover, the Court considered that the jurisdiction of the Italian Court existed not only regarding the place of destination but also as applying the connecting criterion of the "place where the establishment of the carrier taking care of the conclusion of the contract is situated" considering that in the case of online purchase of the air ticket, this coincides with the place where the purchaser has become aware of the acceptance of the proposal formulated with the sending of the order and the payment (as established by the Corte di Cassazione in its judgment 18257/2019).

In conclusion, the situation delineated from the recent statement of the Supreme Court in matter of jurisdiction anticipates other important aspects to take in consideration about the litigation on air transport contracts.

Milano, 26 March 2020

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