Codeshare agreements – Claims for 261-compensation must be raised against the operating carrier

We are pleased to inform that Copenhagen City Court dismissed the claim against the contracting carrier, thereby aligning Danish Law with what applies in other European jurisdictions.

In this case, the passengers had booked a flight from Florence to Billund via Amsterdam. The first flight from Florence to Amsterdam was subject to a codeshare arrangement, and the operating carrier was not identical with the company from which the passengers had purchased their tickets.

Due to a delay which occurred on this first flight, the passengers filed a claim against the contracting carrier. The passengers argued that Regulation 261/04 provides the passengers with a choice between directing a claim for compensation against the contracting and the operating carrier as jointly liable parties.

However, the City Court did not agree. The court found in favour of the defending airline company and once and for all determined that a claim for compensation can only be raised against the operating carrier.

Wet lease vs. codeshare

During the main hearing, the passengers relied on a previous Danish judgment, which at first sight seemed to support that the claim for 261-compensation could correctly be raised against the contracting carrier.

However, on behalf of the defendant we argued that there were two main differences:

• The previous case did not concern a codeshare agreement but a wet lease agreement; and
• In the previous case the passengers had not been properly informed that the aircraft was operated by another airline company than the contracting carrier. In the current case, this was explicitly stated on the tickets.

 Based on these two differences, the court agreed with the defending airline and dismissed the case.

Following these two judgments, it now seems clear that in cases concerning official codeshare agreements (as opposed to pure wet lease agreements) claims for 261-compensation can only be raised against the operating carrier.

IUNO's opinion

IUNO agrees with the recent court ruling. First of all, this is in our opinion the only correct way to interpret the wording of Regulation; especially in the light of the preparatory works.

Furthermore, the recent ruling is completely in line with case law from other EU jurisdictions. Even though Danish courts are not bound by case law from other EU-countries per se, they are obliged to take such decisions into account due to the EU principle of uniformity. In addition, it is important to maintain a high level of consistency in case law in the European countries in order to prevent inexpedient forum shopping.

IUNO has several more cases on this question coming up in the fall of 2015, which we hope will enlighten the currently unclear situation. And we will of course keep you posted.

Have a great summer.