ECJ Advocate General proposes the Court to confirm its "Sturgeon"-Judgement
On May 15, 2012, ECJ Advocate General Bot has delivered his opinion in two pending cases where the national courts sought a review of the "Sturgeon"-Judgement. In this judgement, the Court of Justice had ruled that passengers whose flights are delayed may be treated, so far as the right to compensation is concerned, in the same way as passengers whose flights are cancelled. Thus, if they reach their final destination three hours or more after the arrival time as originally scheduled, they may seek flat-rate compensation from the airline, unless the delay has been caused by extraordinary circumstances.
In the two pending cases lodged by the Amtsgericht Köln (Cologne local court) and the High Court of Justice of England and Wales, Advocate General Bot sees no reason why the Court should reconsider its interpretation. That interpretation is based, amongst other things, on the very objective of the European legislation, which is to ensure a high level of protection for air passengers regardless of whether they are denied boarding or whether their flight is cancelled or delayed, since they are all caused similar serious trouble and inconvenience connected with air transport.
In his view, that interpretation is also consistent with the principle of equal treatment, by virtue of which passengers may not be treated differently depending on whether a flight has been cancelled or delayed when they suffer on that account similar damage consisting in a loss of time and thus find themselves in comparable situations so far as the right to compensation is concerned.
Furthermore, the Advocate General takes the view that EU law is compatible with the principle of proportionality. Compensating passengers whose flights have been delayed does not, in his view, result in an arbitrary and unduly severe financial burden on air carriers, particularly since the frequency of delays of more than three hours, which confer entitlement to compensation, appears to be limited. Moreover, airlines are not obliged to pay compensation if they can prove that the cancellation or long delay is caused by extraordinary circumstances.
The Advocate General observes that EU law is also compatible with the Montreal Convention and with the principle of legal certainty which requires that passengers and air carriers should know exactly the extent of their respective rights and obligations.
Finally, the Advocate General considers the submissions of certain airlines, which request that the Court limit the temporal effects of the judgment to be given. They submit that the interpretation given by the Court should not be relied on as the basis for passengers’ compensation claims prior to the date of judgment in the present cases, except with regard to passengers who have already brought court proceedings as at that date.
Advocate General Bot recalls that, as a rule, the Court’s judgments apply to legal relationships which arose and were established before the judgment ruling on a request for interpretation. He points out that the Court has already had the opportunity, in its judgment in Sturgeon, to rule on the question of compensation for passengers whose flights have been delayed and that it did not limit the temporal effects of that judgment. Accordingly, there is no need to limit the temporal effects of the judgment to be given in the present cases.
Source: ECJ press release 63/12 of May 15, 2012
Find full text of opinion here>>.
Germany: Supreme Court to hear cases on airline personnel strikes as "extraordinary circumstances"
On June 5, 2012, the German Civil Supreme Court (BGH) will hear two cases involving flight cancellations due to airline personnel strikes. In one case the appelate court (LG Köln) had held that the operating carrier may not refer to a strike of its own personnel as an "extraordinary circumstance", in the other case the second instance court (LG Frankfurt/Main) had decided to the contrary.
There is no consensus yet whether or not a strike of the opreation carrier's own personnel can constitute "extraordinary circumstances" pursuant to article 5 sec 3 of Reg. 261/2004. It may therefore well be that the BGH lodges another reference for a prelimiary ruling of the ECJ to get a binding interpretation.
ECJ Advocate General Bot: compensation for denied boarding not limited to overbooking
According to Advocate General Bot, an air carrier must compensate passengers if they have been denied boarding on account of the rescheduling of their flight following a strike at the airport which took place two days beforehand and affected a previous flight. Only denied boarding justified on grounds relating to the personal situation of those passengers may exempt the air carrier from that obligation.
Following a strike by staff at Barcelona Airport (Spain) on 28 July 2006, the scheduled 11:40 flight from Barcelona to Helsinki operated by the air carrier Finnair had to be cancelled. Consequently, Finnair decided to reschedule its flights so that the passengers for the cancelled flight should not have too long to wait.
Accordingly, those passengers were taken to Helsinki (Finland) on the 11:40 flight the following day, 29 July 2006, and on a specially arranged flight departing at 21:40 hours on that day. The consequence of that rescheduling was that some of the passengers who had bought their tickets for the 11:40 flight on 29 July 2006 had to wait until 30 July 2006 to go to Helsinki on the scheduled 11:40 flight and on a 21:40 flight which was specially arranged for the occasion. Similarly, some passengers, like Mr Lassooy, who had bought their tickets for the 11:40 flight on 30 July 2006 and had duly presented themselves for boarding, went to Helsinki on the special 21:40 flight.
Taking the view that Finnair had denied him boarding, Mr Lassooy brought an action before the Finnish courts seeking an order for that air carrier to pay him the flat-rate compensation of €400 provided for by European legislation in respect of intra-Community flights of more than 1500 kilometres.
The Korkein oikeus (Supreme Court, Finland), before which the case was brought at final instance, has doubts as to the interpretation of the concept of ‘denied boarding’ and seeks a ruling from the Court of Justice in this regard.
In his Opinion delivered on April 19, 2012, Advocate-General Yves Bot states, first of all, that the concept of ‘denied boarding’ must be interpreted broadly and cannot be limited to overbooking. That finding is apparent not only from the travaux préparatoires for the adoption of the relevant European legislation, but also from the objective which it pursues, namely that of ensuring a high level of protection for air passengers.
The Advocate General also states that ‘denied boarding’ cannot be justified by grounds relating to the rescheduling of flights as a result of extraordinary circumstances, such as a strike at an airport. According to the Advocate General, the denial of boarding to passengers may be justified solely on grounds relating to the personal situation of those passengers.
Denied boarding is an individual measure taken by the air carrier arbitrarily against a passenger who has nevertheless satisfied all the conditions for boarding. That measure loses its arbitrary character only if the passenger himself commits a fault, for example by presenting invalid identity documents, or if, by his behaviour, he endangers the safety of the flight and/or of the other passengers, for example if he is inebriated or shows signs of violence. In such cases, the decision not to allow the passenger to board is attributable to the passenger himself, who cannot claim any compensation or care. On the other hand, the decision to deny boarding based on reasons which are wholly unrelated to the passenger concerned cannot have the effect of depriving him of all protection.
Moreover, given that the airport strike cannot be attributed to Finnair, that air carrier has the right, if it considers that it does not have to suffer the consequences of that strike, to seek compensation from the persons responsible, in accordance with the national law applicable.
Such an interpretation is not contrary to the principle of equal treatment, even though the fate of the passenger denied boarding by the air carrier, as a result of extraordinary circumstances, is more favourable than that of the passenger whose flight has been cancelled or delayed as a result of those circumstances since the former is compensated but the latter is not. The principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. However, passengers who are the victims of a flight cancellation or delay are not in the same position as passengers to whom the air carrier has denied boarding. Whereas denied boarding affects one or more passengers, in cases of flight cancellation or delay all the passengers are concerned and affected in the same way.
Furthermore, where the flight cancellation or delay is due to extraordinary circumstances, the air carrier is not required to pay the compensation provided for by EU law since it had no control over those events. By contrast, that is not the case where a passenger is denied boarding after the air carrier has decided to reschedule flights owing to extraordinary circumstances. Simply by making that decision, the air carrier makes one or more passengers selected completely arbitrarily suffer trouble and inconvenience. For that reason, because the harm suffered is attributable to the air carrier, compensation remains payable in order to dissuade the carrier from resorting to such a practice and to give preference to calling for volunteers to surrender their reservations.
Source: ECJ press release No 45/12 of April 19, 2012
Full text of Opinion in case C-22/11, Finnair Oyj v Timy Lassooy available here>>.
European Union: airline black list updated
On April 3, 2012, the European Commission has adopted the 19th update of the European list of air carriers which are for safety reasons subject to an operating ban or operational restrictions within the European Union. Conviasa, an air carrier certified in Venezuela, was added to the list due to safety concerns. Following constructive consultations, Libyan authorities decided to adopt strong measures applicable to all air carriers licensed in Libya, which exclude them from flying into the EU until at least November 2012.
Source: EU press release IP/12/342 of 3/04/2012
Find updated list here>>.
German court files reference for ECJ preliminary ruling regarding denied boarding
The plaintiff booked a flight connection from Frankfurt (FRA) via Sao Paulo (CGH) to Santiago de Chile (SCL) for 3.3.2010. The defendant should have operated the flight FRA-CGH whereas the flight CGH-SCL was scheduled to be operated by a different carrier. On 27.2.2010 an earthquake caused severe damages at the SCL airport.
When the plaintiff arrived at FRA for check in, he was denied boarding although the flight FRA-CGH was operated as scheduled and seats were available. However, the flight CGH-SCL was cancelled. After some discussions the defendant re-booked the plaintiff to a flight FRA-CGH for the next day but was not able to organise a connecting flight to SCL.
The plaintiff sued for compensation pursuant to Reg. 261/2004 because he had been denied boarding. The defendant argued that because of the damages caused by the earthquake it had been impossible to fly any passengers to SCL. The SCL airport had only partly resumed flight operation on 2.2.2010, limited to domestic flights. On 3.3.2010 the first international flights had been admitted, including a flight operated be the defendant. However, because of the closure of the airport, many passengers of previously scheduled fligths had been waiting to get from CGH to SCL, including some 30.000 citizens of Chile. This siutation had led to unaccaptable conditions at CGH airport. The defendant therefore had decided to first take the waiting passengers from CGH to SCL.
The first instance court (AG Frankfurt/Main) had dismissed the claim. The appelate court (LG Frankfurt/Main) decided to refer the case to the ECJ for preliminary ruling, identifying the decisive issue as to whether or not the specific situation constituted "reasonable grounds" to deny boarding in the meaning of Art. 2 lit. j of Reg. 261/2004. The court therfore aksed the ECJ if the term "reasonable groudns" in Art. 2 lit. j was limited to circumstances related to the passenger himself or also included other circumstances such as force majeur.
(LG Frankfurt/Main 01.03.2012, 2-24 S 185/11)
ECJ Advocate General: no temporal or monetary limitation of the obligation to provide care to air passengers
In his opinion in case C-12/11 - McDonagh v Ryanair, delivered on 22.03.2012, ECJ Advocate General Bot came to the conclusion that circumstances such as the closure of airspace owing to the eruption of a volcano constitute extraordinary circumstances for the purposes of Reg. 261/2004. Additionally, the EU legislation does not imply any limitation – temporal or monetary – of the obligation to provide care (accommodation, meals, refreshments) to the passengers.
According to the Advocate General, that finding cannot call into question the validity of the EU legislation in relation to the principles of proportionality or non-discrimination. It does not appear to be disproportionate to impose on air carriers such an obligation to provide care in so far as they are free to pass on the resulting costs to airline ticket prices. What is more, that is a policy which has already been put into effect by Ryanair, which introduced a special levy in April 2011 in order to cover the costs which it had incurred in providing care to passengers whose flights had been cancelled owing to the eruption of the Icelandic volcano.
Nor, in the view of the Advocate General, does the obligation to provide care conflict with the general principle of non-discrimination, because the various modes of transport are not interchangeable as regards conditions of use.
Source: ECJ press release 32/12
Find full text of opinion here>>.
A video of the court session is available here>>.
USA: DHS report says X-ray scanners at airports are safe
The inspector general of the U.S. Department of Homeland Security (DHS) reported that full-body X-ray scanning machines at airport security checkpoints use an "extremely low dose" of radiation which is safe for passengers. The report refers to a Johns Hopkins University assesment of 2010 which said that a passenger would have to be screened 47 times a day for a year to exceed yearly limits of radiation set by the American National Standards Institute.
Source: USA today; finad article here>>.
ECJ Advocate General: air ticket pricing rules regarding ‘optional price supplements’ also apply to a cancellation insurance
Article 23(1) of Regulation No 1008/2008 on common rules for the operation of air services in the Community provides that with rergard to air fares or air rates, optional price supplements shall be communicated in a clear, transparent and unambiguous way at the start of any booking process and their acceptance by the customer shall be on an “opt-in” basis.
The German Oberlandesgericht Köln (Higher Regional Court, Cologne) had lodged a reference for preliminary ruling, aksing the ECJ whether the price of a travel cancellation insurance, which is provided by a third party (in this case an insurance company) but which is taken out in relation to, and booked together with, a flight via a website, constitutes an ‘optional price supplement’ within the meaning of Article 23(1) of Regulation No 1008/2008, any acceptance of which by the customer must therefore be on an ‘opt-in’ basis.
In his opinion delivered today, Advocate General Mazák came to the conclusion that in the light of the general objective of protecting the customer or consumer of air services and the intention to enable customers to compare effectively the prices for air services of different airlines, the concept of ‘optional price supplements’ under Article 23(1) is to be interpreted as covering the costs of services provided by third parties – for example, the cost of taking out a travel cancellation insurance such as that at issue in the main proceedings – where the service and the price to be charged for it are offered together with a flight and can be booked in the same process as the flight and where that price is charged to the customer by the company selling the flight together with the air fare as part of a total price.
Full text of opinion in case C-112/11 - ebookers.com available here>>.
USA: Appelate court affirms foreign nationals' standing to challenge a "no-fly list" inclusion
Rahinah Ibrahim, a Malaysian national and university professor, was legally in the United States as a Ph.D. student at Stanford University from 2001 - 2005. In early 2005, she attempted to travel to a Stanfordsponsored conference in Malaysia where she was to present her doctoral research. Alledgedly mistakenly placed on the “No-Fly List”, she was prevented from flying and was detained in a holding cell for two hours at the San Francisco airport. She was then allowed to fly to Malaysia the next day, but she was prevented from returning to the United States after the conference. Ibrahim has not been permitted to return to the United States.
Unable to resolve the error with the TSA, she brought suit in U.S. Federal Court, seeking damages, and alleging her First and Fifth Amendment rights were violated. She also sought injunctive relief to have her name immediately removed from the No-Fly List.The Department of Homeland Security and other federal agencies named as defendants moved to dismiss, arguing that Ibrahim lacked standing under Article III of the Constitution, as well as in her ability to assert First and Fifth Amendment claims from abroad.
The Court of Appeal for the Ninth Circuit found that Ibrahim had standing to sue under Article III, as
(a) being named on the No-Fly List was an injury,
(b) a favorable judicial decision (i.e., a court order that her name be removed from the No-Fly List) would in fact redress those injuries, and
(c) that her alleged injuries were not hypothetical just because she has no immediate plans to travel to the U.S.
As to the First and Fifth Amendment claims, the Court found that Ibrahim did not leave her constitutional rights “at the water’s edge” when she departed and had the right to assert the claims because of her “significant voluntary connection” to the U.S. established over four years studying at Stanford. This was noteworthy considering her actual status as a foreign national who was no longer physically present in the U.S. Further, the court found evidence that the No-Fly and other government watchlists are shared by the U.S. with 22 foreign governments, making it reasonable to infer that Ibrahim “will suffer delays (or worse) when travelling abroad, even on foreign carriers, resulting from the presence of her name on the No-Fly List.”
Full text of decison in Ibrahim v. Department of Homeland Security Case No. 10-15873 (C.A. 9, Feb. 8, 2012) avaialble in pdf here>>.
European Union: Parliamentary Transport and Tourism Committee calls for improved air passenger rights
All-in air fares, airline employees able to help stranded passengers immediately, and proper compensation when airlines go bust are the key requests set out in a resolution on air passengers' rights voted by the Transport and Tourism Committee on Tuesday.
With a view to a forthcoming revision of the relevant EU legislation, the resolution calls on the European Commission to clarify air passengers' rights, ensure that legislation protecting them is applied uniformly, and take measures to improve the accountability of airlines.
Air carriers should ensure that there are contact personnel present at each airport, entitled to take immediate decisions on assistance, reimbursement, rerouting and rebooking in the event of disruption. The triple choice of "refunding, rerouting or rebooking" as a basic right in the event of travel disruption should be immediately offered to stranded passengers, MEPs say.
Additionally, where luggage is lost or delayed, the passenger should immediately receive information on rights and the relevant complaints procedure. MEPs want each air carrier to set up a mandatory central information point, and also a web site, a low-cost phone number and an email address where passengers can lodge their complaints.
MEPs also ask that the price of a flight ticket advertised on a web site should include all charges. They call on the Commission to ensure that existing legislation on unfair commercial practices is properly enforced. The resolution also suggests measures to allow passengers to correct minor booking errors or withdraw from an online reservation within 2 hours of booking.
MEPs want the role of the National Enforcement Bodies to be better defined, so that national sanctions against air carriers in breach of EU rules can be made more effective. They also want the Commission to draw up and publish airline performance records, based on the annual number of complaints. The maximum time for processing passenger complaints should be 2 months for airlines and 2 months for enforcement bodies, they add.
The report calls the "extraordinary circumstances" in which airlines do not have to pay compensation fees to be clarified, and asks the Commission to incorporate the relevant European Court of Justice ruling in the legislation. Furthermore, to achieve full accountability to passengers in "extraordinary circumstances", better cooperation and coordination are needed among air carriers, airports and related service providers, says the text, which also calls for proper compensation when airlines go bankrupt.
Persons with reduced mobility or disabilities should be granted barrier-free access to all air transport services, says the text.
The own-initiative report was approved in committee with 41 votes in favour, 1 against and 4 abstentions. The plenary vote is scheduled for 29 March.
Source: European Parliament press release of Feb. 28, 2012
