Consumer and Health Protection Law

When does a brokerage contract come into existence and when is the prospective buyer obliged to pay a broker’s fee?

Decision of the German Federal Court (Bundesgerichtshof) I ZR 30/15

The case concerns the applicant’s claim for payment of a broker’s commission by the respondent for the sale of a plot of land.

In its deliberations the Federal Court of Justice (Bundesgerichtshof) ruled that if the real estate broker submits an exposé to a prospective buyer, which contains a clear commission requirement, this is an offer to conclude a brokerage contract. This offer is already accepted by the buyer when he asks the broker to arrange a visit. In such a case, the contract will not be concluded automatically when the purchaser agrees the appointment with the broker. In the present case a brokerage contract has come to an existence on the basis of implied conduct by the parties.

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The French Court of Cassation elaborated on an extensive interpretation regarding the rules on compensation and assistance to passengers in the event of long delay of flights

By Lachezar Tsvetkov

The present case concerned the common rules on compensation and assistance to passengers in the event of long delay of flights.

It is well known that the long delay of flights causes serious trouble and inconvenience to passengers. Regulation (EC) No 261/2004 comes to ensure the passengers’ rights.

According to article 7 of the aforementioned regulation, passengers shall receive compensation amounting to: (a) EUR 250 for all flights of 1500 kilometres or less;

(b) EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres;

(c) EUR 600 for all flights not falling under (a) or (b).

The French Court of cassation (Cour de cassation) has already delivered several judgments regarding Article 7 of the Regulation (EC) No 261/2004. One of the most prominent is dated from January 15, 2015 (Cass. Civ.1, 15 janvier 2015, n° 13-25351).

In abovementioned case, the French Court of cassation confirms the case law of the Court of Justice of the European Union (Sturgeon Joined cases C-402/07 and C-432/07)  according to which passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.

We can clearly observe the evolution of the French Court of cassation regarding article 7 of Regulation (EC) No 261/2004. On that occasion, the present recent case dated from November 30, 2016 comes to demonstrate and explore the development of the position of the French Court of cassation concerning the right to compensation under article 7. In the present case, the French Court faced an entirely new situation which led to an extensive interpretation of the Regulation (EC) No 261/2004 regarding the rules on compensation and assistance to passengers in the event of long delay of flights.

Mrs. X. bought two plane tickets for herself and her husband for Emirates flight from Paris to Kuala-Lumpur via Dubai.

On departure from Paris, the flight was delayed by more than two hours compared to the scheduled time. As a result, Mr. and Mrs. X missed their connection in Dubai.

Therefore, Mr. and Mrs. X. boarded the next day on another flight and arrived in Kuala Lumpur with a delay of about ten hours.

On that occasion, Mrs X. filed an action against the company Emirates before the local Paris court (La juridiction de proximité de Paris) under Article 7 of Regulation (EC) No 261/2004.

The aforementioned court ordered company Emirates to pay Mr and Mrs X the sum of EUR 600 each, as compensation, with interest at the statutory rate, as well as a certain sum in reimbursement of Taxi charges.

The company Emirates lodged an appeal before the French Court of cassation on the grounds that the local Paris court violated by misapplication, Articles 3, 6 and 7 of Regulation No 261/2004.

The Court of cassation referred to the judgment of the Court of Justice of the European Union of 26 February 2013 (Folkerts, Case C-11/11) according to which compensation is payable, on the basis of Article 7 of Regulation No 261/2004, to a passenger on directly connecting flight operated by the same carrier who has arrived at the final destination at least three hours later than the scheduled arrival time.

Thus, the Court of Cassation considered that, having suffered a delay of more than three hours on arrival in Kuala Lumpur, which was their final destination, Mr. and Mrs. X. were entitled to compensation regardless of whether the flight in question, which was the correspondence of a flight departing from an airport located in the territory of a Member State  to which the Treaty applies within the meaning of Article 3, paragraph 1 a) of the Regulation and which delay was the cause of the missed connection in Dubai, was departing from an airport located in a third country and destined for another third country and carried out by a non-Community air carrier.

Consequently, the Court of cassation dismissed the appeal of the company Emirates and ordered it to pay Mr. and Mrs. X the overall sum of 2,500 euros.

With the present judgment, the French Court of cassation enhanced the rights of passengers and extended its case law regarding Article 7 of the Regulation (EC) No 261/2004. This is an important decision, because the proposal for revision of Regulation (EC) No 261/2004 aims to change the thresholds for compensation in case of delay.

For more case-law see EuroCases

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The French Court of Cassation elaborated on an extensive interpretation of the Regulation (EC) No 261/2004 regarding the rules on compensation and assistance to passengers in the event of long delay of flights

Cour de cassation, civile, Chambre civile 1, 30 novembre 2016, 15-21590

The pre   sent case concerned the common rules on compensation and assistance to passengers in the event of long delay of flights. Mrs. X. bought two plane tickets for herself and her husband for Emirates flight from Paris to Kuala-Lumpur via Dubai. On departure from Paris, the flight was delayed by more than two hours compared to the scheduled time. As a result, Mr. and Mrs. X missed their connection in Dubai.

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A syndicate of co-owners can not be considered as a ‘consumer’

Cour de cassation, civile, chambre civile 1, 1 juin 2016, 15-20.119, Inédit

In the present case the Court of Cassation (Cour de cassation) ruled that syndicates of co-owners were not consumers and, consequently, they could not bring actions for injunctions of unfair terms previewed by Articles 1 and 2 of Directive 2009/22/EC.

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The German Federal Court (BGH) on the product liability for defective cardiac pacemaker: no need to ascertain a particular defect if a potential defect has been established

BGH, Urteil vom 09.06.2015, VI ZR 284/12

The German Federal Court (Bundesgerichtshof) decided in the present case that the implanted cardiac pacemakers of the insured ”B” and ”W” showed product defects in accordance with Article 3 (1) of the German Product Liability Law and Article 6 of Directive 85/374/EEC. The German Federal Court (Bundesgerichtshof) had in that regard referred to the jurisprudence of the CoJ whereby the CoJ noted that ”Article 6 (1) of Directive 85/374/EEC is to be interpreted as a product, which belongs to a group oder production series of products such as cardiac pacemakers and implant cardioverter defibrillators by which a potential defect is being established, is to be classified as defective without the need to ascertain a particular defect of that same product in question. (Cases C-503/13 and 504/13, NJW 2015, 1163 Boston Scientific Medizintechnik GmbH / AOK Sachsen Anhalt Die Gesundheitskasse, Betriebskrankenkasse RWE)

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The German Federal Court (BGH) on the obligation of an air carrier to pay compensation in case of re-booking of a flight

BGH, Urteil vom 17.03.2015, X ZR 34/14

In the present case the German Federal Court (Bundesgerichtshof) examined whether an air carrier is obliged to pay compensation due to denied boarding also in cases when the passenger, who already has a booked flight, is being denied boarding to his booked flight before he could check-in at the planned time. The passengers were informed that their flight was changed and re-booked which resulted in their arriving at the planned destination six hours later as with the original flight and they should have been informed about the change in accordance with Article 5 (1) (c) (I) of the Passenger Regulation at least two weeks before the planned departure time (in the present case planned for 28th of October at 09:00 hours).

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The French Supreme Court decided that the time spent at the stop-over airport is a loss of time which should be compensated

Cour de cassation, Chambre civile 1, 16 avril 2015, 14-13.736, Inédit

The present case concerns the Regulation (EC) No 261/2004 and the air passengers right to compensation in case of delay.

X had a flight ticket from Marseille to Manchester with a stop in Paris. The first flight was delayed by 12 minutes. X did not arrive in time at the Paris stop-over airport and he had to wait 6 hours for the next flight. Finally, he arrived in Manchester at 19 o’clock instead of 13 o’clock, which represented 6 hours of delay compared to the initially previewed arrival. X seised the district court of Marseille (Juridiction de proximité de Marseille) which rejected the claim. The first instance judges found out that the first flight took only a 12-minutes delay, while Article 6 of the Regulation (EC) No 261/2004 required a delay of 3 hours or more. X lodged an appeal in cassation.

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