La giurisdizione nel trasporto aereo. Antiche e nuove questioni

The author focuses on the different criteria to establish jurisdiction provided by article 33 of the 1999 Montreal Convention in light of the most recent court decisions that followed the influence of the European Union on the Convention. This rule was authoritatively interpreted by the EU Court of Justice in a strictly procedural way which makes it not only a rule on jurisdiction, but also as a provision on internal venue. The aim of achieving a balance of interests at stake particularly attentive to the position of the air transport user is favorably shared in general terms. However, the proposed solution appears criticizable and not in line with the original spirit of the Convention. There are significant reasons, both literal and systematic, that lead to strengthen the exclusive jurisdictional option of article 33, already supported in the past and adopted by the decisions of the Italian Corte di Cassazione. Moreover, this last solution appears more coherent with the relationship of close continuity that can be found between the provisions of Regulation (EC) No 261/2004 and those of the Montreal Convention on matters of liability. The reading of the air transport contract in favor of the passenger has also affected the determination of the alternative criterion of the place where the carrier has a place of business through which the contract has been made. The Corte di Cassazione, in a recent decision, has effectively qualified this criterion as «intermediate». However, with a reconstruction which is also criticizable, the judges deemed that this criterion can be used in the very recurrent case of execution of the online contract and therefore identified with the place of domicile of the buyer, this being the only indicator having an adequate degree of determination and predictability.