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>>.
German Supreme Court decides on organizer's liability for changing the departure of the return flight to an earlier time
The plaintiff's spouse had booked a one week package holiday to Turkey at EUR 369 per person for the plaintiff and himself. The return flight was scheduled to depart on June 1, 2009, 16:40 hrs. One day before, the organizer changed the departure time to 05:15 hrs and thus the plaintiff and her spouse were to be picked up at the hotel as early as 01:25 hrs. They therefore looked for an alternative return flight which they booked on their own and which departed at 14 hrs.
The plaintiff (to whom her spouse had assigned his claim) sued for reimbursment of the full package price (except EUR 70 for meals), compensation for the costs of the alternative flight and compensation for loss of holiday enjoyment.
The organizer referred to his general conditions of contract due to which
he had reserved the right to alter the times of fligths as long as this would not affect the overall arrangement of the package;
consumers were not allowed to assign any claims to other persons.
Both the first instance court and the appelate court only granted a small reduction of the package prize for the plaintiff herself.
Upon further appeal of the latter, the German Civil Supreme Court (BGH) held that the change of the departure time of the return flight constituted malperformance of the contract which entitled the plaintiff to claim for damages if either she had asked the organizer to provide an alternative flight before booking same on her own or such demand seamed unreasonable according to the circumstances . There was no justified interest on behalf of the organizer to interdict an assignment of such claims. However, as the change did not cause any significant detriment with regard to the holiday arrangement there was no claim for loss of holiday enjoyment.
As a result, the Supreme Court referred the matter back to the appelate court to complete the findings on a potential demand to the organizer and the actual costs of the alternative flight booked by the plaintiff.
Source: BGH press release 47/12 of April 17, 2012
Summary available on the ECJ's hearing in pending cases seeking a revision of "Sturgeon"
The joined cases Nelson v. Deutsche Lufthansa (C-581/10) and TUI et al v. CAA (C-629/10), both seeking a revision of the "Sturgeon" judgement (joined cases C-402/07 and C-432/07), have been heard at the Court of the European Union in Luxembourg on March 20, 2012. In his blog, Cees van Dam, visiting Professor at King’s College London, provides a brief summary of the hearing. Reportedly the the Governments of France and Poland, the European Commission and the European Parliament filed statements arguing that Sturgeon was in line with the Montreal Convention while the Governments of the United Kingdom and Germany and by the EU Council of Ministers supported the view of Lufthansa and TUI that the right to compensation in case of delay as set out in Sturgeon was not in line with the Montreal Convention. According to Cees' report, the Judge-Rapporteur in the two pending cases is Judge Malenovsky who has also been Rapporteur in the cases IATA and Sturgeon.
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)
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
ECJ to hear cases challenging its "Sturgeon" judgement
The Court of the European Union has scheduled a hearing for March 20, 2012 at 09:30 in the joined cases Nelson v. Deutsche Lufthansa (C-581/10; referring court: Amtsgericht Köln, Germany) and TUI et al v. CAA (C-629/10; referring court: High Court of Justice / England & Wales, Queen's Bench Division / Administrative Court).
Both references seek a revision of the "Sturgeon" judgement (judgment of Nov. 19, 2009 in joined cases C-402/07 and C-432/07) by questioning the vailidity of Articles 5-7 Reg. 261/2004 as interpreted there with regard to
the principle of equal treatment
the principle of proportionality
the principle of legal certainty and
the Montreal Convention
While some more references concerning Reg. 261/2004 as interpreted in the Sturgeon judgement are still pending, it will be exciting to see how the court will solve the controversy which arose from "Sturgeon" and which in some member states led to a stay of cases seeking compensation for delay pursuant to Articles 5-7 Reg. 261/2004.
Germany: new reference for ECJ preliminary ruling regarding Reg. 261/2004
On Nov. 25, 2011, the German Amtsgericht Düsseldorf has filed a motion for preliminary ruling to the ECJ regarding the follwoing issue:
Is a passenger entitled to compensation under Article 7 of Regulation (EC) No 261/2004 if the departure time of a flight has been delayed for a period of time falling within the limits defined in Article 6(1) of the regulation, but the flight arrives at the final destination at least three hours after the scheduled time of arrival?
Case C-594/11, Becker v. Air France
A similar reference had been filde by the German Supreme Court (BGH) on Dec. 9, 2010.
USA: Costa Concordia victims sue for USD 460 milion in Florida
Attorneys for six passengers of the Costa Concordia reportedly filed a law suit in Miami’s federal court requesting USD 450 million in punitive damages and USD 10 million in compensatory damages. The complaint says plaintiffs were “in terror of catastrophic injury, death, drowning, having been placed in a situation where common sense said the vessel was sinking but the orders from the crew were to return to their cabins.”
However, legal experts question whether any lawsuits filed in the U.S. will succeed because under the terms of the cruise contract signed by passengers, all lawsuits seeking damages must be filed in Genova, Italy, where Costa is based.
Source: Travel Pulse; find article here>>.
