I. Even if the matter in question is a ruling of the Court of Appeal which ruled on an interlocutory ruling that only concerned a procedural relationship, the appeal is admissible under Article 672(2)(a) of the CPC (1); in effect, being based on a violation of the rules of international jurisdiction, this is one of the situations where an appeal is always admissible, regardless of the financial value of the court action (as per Article 629(2)(a) of the CPC), and the obstacle of double confirmation is withdrawn (as per the initial exception of Article 671(3) of the CPC).
II. In solving the issue of international jurisdiction, the appropriate method to be followed for this purpose shall imply: (i) determining the pertinent set of rules; (ii) identifying the applicable rule or rules; (iii) interpreting the identified rule or rules.
III. Just as was determined in the ruling object of the present appeal, considering the date of filing of the present court case (4.1.2018), one must ponder the applicability of the rules of the Brussels I Regulation (recast) (2) or the rules of the new Lugano Convention (3).
IV. By interpreting a contrario Article 6(1) of the Brussels I Regulation (recast), it is commonly considered that the general criterion for defining the territorial scope of application of the aforementioned regime of European law is that the defendant is domiciled in the territory of one of the EU Member States. In the present court case, the defendant’s statutory seat is in Switzerland, so – according to Article 63(1)(a) of the Brussels I Regulation (recast) – they are not domiciled in the territory of a EU Member State; thus, by not being included in the territorial scope of application, one must conclude by ruling out the regime of the Brussels I Regulation (recast).
V. In what concerns the territorial scope of application of the new Lugano Convention, a convention whose primary goal is to extend to contracting parties the principles of the Brussels I Regulation (4) (the precursor to the Brussels I Regulation (recast)), it adopted (Article 4(1)) a rule equivalent to that of Article 6(1) of the Brussels I Regulation (recast). Therefore, considering that the territorial scope of application of the new Lugano Convention is defined by the defendant being domiciled in a state bound by this convention, and considering that the defendant’s statutory seat is in Switzerland, a state bound by the new Lugano Convention, one can confirm that the present case falls under the corresponding territorial scope of application.
VI. Within the present appeal, doubts are raised around whether the case in question falls under the material scope of application of the new Lugano Convention. The plaintiff considers that, under Article 67(1) of the new Lugano Convention, one should apply the Montreal Convention (5) which contains its own rules of international jurisdiction (Article 33), which would lead to a different result than that which arises from the application of the rules of the new Lugano Convention.
VII. When interpreting and applying the rules of the new Lugano Convention, this Supreme Court is bound, under Article 1(2) of Protocol 2 of the new Lugano Convention, to pay due account to the principles laid down by any relevant decision concerning the provision(s) concerned or any similar provision(s) of the Brussels I Regulation, rendered by the Court of Justice of the European Union (CJEU).
VIII. In Case C-204/08 (6), concerning a case identical to the present one, where a court action had been filed, following a ‘cancelled’ flight, in order to exercise the right to compensation foreseen in Article 7 of Regulation (EC) No 261/2004 (7), the CJEU resolved the preliminary matter of defining the material scope of application of the Brussels I Regulation and that of the Montreal Convention, choosing to rule out the latter.
IX. Thus, even taking into account the critical objections made to this jurisprudential view of the CJEU, mainly due to the principle of exclusivity found in Article 29 of the Montreal Convention, this court considers that the rule of Article 67(1) of the new Lugano Convention, which safeguards conventions regarding particular matters, being fundamentally identical to the rule of Article 71(1) of the Brussels I Regulation, should be interpreted in accordance with the orientation of the CJEU ruling mentioned in point VIII; therefore, as the plaintiff’s petition was filed based solely on Regulation (EC) No 261/2004, the case must be examined under the rules of the new Lugano Convention.
X. This being a case to demand compensation for the non-compliance of an air carriage contract, the concerted application of the rules of Article 5(1) of the new Lugano Convention requires that one determine ‘the place of performance of the obligation of the air carrier’ (point a), and – since the contract of carriage fits in the broader category of a contract for the provision of services– that place shall be ‘the place in a State bound by this Convention where, under the contract, the services were provided or should have been provided’ (point b, second paragraph).
XI. Furthermore, as for the interpretative doubts regarding the rules mentioned in point X – and considering Article 1(2) of Protocol 2 of the new Lugano Convention – this Supreme Court, as a court of a Member State of the European Union, must respect the interpretation that the CJEU made of the rules of Regulation (EC) No 261/2004, as long as they are substantially equivalent to the norms of the aforementioned convention.
XII. These doubts were assessed and ruled on by the CJEU in regard to the equivalent norms of the Brussels I Regulation, in the aforementioned Case C-204/08, in a way which, under the terms of Protocol 2 to the convention, is also applicable to the interpretation of the rules of the convention, namely: the court which has jurisdiction in a case regarding compensation based on an air carrier contract based on Regulation (EC) No 261/2004 is the court, depending on the plaintiff’s choice, in whose territory the place of the flight’s departure or the flight’s destination is situated, such as these places are stipulated in the aforementioned contract; without prejudice to the possibility of the plaintiff filing the case in the court in whose territory the defendant’s domicile is located, which, according to Article 60(1) of the new Lugano Convention, is the place where the defendant has their statutory seat, or central administration, or principal place of business.
XIII. Thus, in the present case, in order to exercise the right to compensation foreseen in Article 7 of Regulation (EC) No 261/2004, the plaintiff could choose to file the case against the defendant: (i) in the court of the place of departure of the cancelled flight, within Portuguese jurisdiction; or (ii) under the jurisdiction of the place of destination of the aforementioned flight, within Swiss jurisdiction, which is, at the same time, the jurisdiction of the place of domicile of the defendant.
XIV. One therefore concludes that Portuguese courts have jurisdiction over the matter of the present case.
(1) Código de Processo Civil (Code of Civil Procedure).
(5) Convention for the Unification of Certain Rules for International Carriage by Air.