El contrato de transporte aéreo de pasajeros: algunas consideraciones sobre competencia judicial internacional y Derecho aplicable

Abstract

It is true that, the international carriage by air currently has a uniform legal system, composed of both international and EU standards, intended primarily to enhance the legal protection of the passenger. However, a detailed analysis of the scope of such legal texts, mainly from the Montreal Convention of 28 May 1999, Regulation (EC) 889/2002 of 13 May 2002 and Regulation (EC) No 261/2004 of 11 February 2004, shows how certain issues that revolve around the contract of carriage of passengers, including determining the jurisdiction and the law applicable to contractual obligations, are subject to general rules contained in Regulation (EC) No 44/2001 of 22 December 2000 and Regulation (EC) No 593/2008 of 17 June 2008 (Rome I). And it is precisely in this area, in which glimpses the delicate legal position which is engulfing the passenger, who despite being the weaker party to the contract, is treated fully equal with respect the carrier. A situation which has been trying to mitigate by the ECJ in its recent Judgment of July 9, 2009, in Case C-2004/2008, Peter Redher v. Air Baltic Corporation but leaves many questions unresolved and actually verifies a fact: the real position of the Community institutions in respect of passengers, considered worthy of protection through uniform material law but relegated to second place from the perspective of the jurisdiction rules and the law applicable to the contract. In short, a legal situation that can only be explained, but in no case justify, by the strong and important economic interests at stake.