Passenger complaints after Sturgeon: warning signs for airlines and authorities - International Law Office

Background
Concept of cancellation
Compensation for long delays
Infringements


Background

Passengers have begun to refer to the ruling in Sturgeon(1) by the European Court of Justice (ECJ) while complaining on the basis of the EU Denied Boarding Regulation (261/2004/EC). This raises new issues for airlines, which are already facing difficult times.

Typically, some passengers have started to claim compensation for 'long delays' which, according to the ECJ, occur where passengers reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Other significant developments relate to the definition of the term 'cancellation'.

In addition, the application of Sturgeon raises new issues where infringements are pursued by authorities on the basis of Article 16 of the regulation.

Concept of cancellation

Article 2(l) of the regulation states that "'cancellation' means the non-operation of a flight which was previously planned and on which at least one place was reserved".

In Sturgeon the ECJ added that a cancellation occurs:

"where the delayed flight for which the booking was made is 'rolled over' onto another flight, that is to say, where the planning for the original flight is abandoned and the passengers from that flight join passengers on a flight which was also planned."

In seeking to capture the essence, the ECJ referred to the "objective characteristics of the flight as such", which does not include external factors, such as the words 'delay' or a 'cancellation' being shown on the airport departures board or announced by the air carrier's staff, or the fact that passengers recover their luggage or receive new boarding cards.

This is significant because several authorities and courts tend to look at the concept of 'planning' within the meaning of the passage above solely on the basis of the flight number. However, the ECJ has not endorsed this stance; on the contrary, the flight at issue in Sturgeon operated under the same flight number as the original booking (but on the following day – the passengers were checked in at another airline's counter). The absence of an automatic connection between planning and the flight number is logical, as airlines are free to set their own flight numbers. To assume that a change of flight number automatically equates to a cancellation would lead to the absurd consequence that a flight taking off and landing on time but under a different number would entitle the passengers to compensation under Article 7 of the regulation.

Instead, the question should be determined with reference to the basics identified as the "objective characteristics of the flight as such": is the passenger actually carried or not? The definition in Article 2(l) refers to the situation of the passenger. Each situation should be taken into account and the flight number is not necessarily a criterion - at least, not automatically.

Compensation for long delays

Sturgeon is particularly controversial because it provides for compensation for long delays of three hours and more, an assimilation which is contrary to the text of the regulation. Several cases are already pending on the issue. Some civil aviation authorities, including the Belgian authority, have not modified their guidelines on their website, which still refer to the situation before Sturgeon. It remains to be seen whether some authorities will be reluctant to apply the rulings from the case.

Infringements

Another serious issue is the prosecution of EU member states for non-compliance with the regulation. The question has recently arisen in France, where airlines which do not comply with the regulation face administrative fines of up to €7,500. According to the general principles of administrative law, penalties may be imposed only on the basis of precise provisions and regulations. Where this might prove possible, in principle, for an airline refusing to pay compensation for cancellation under Article 7, it would be far more controversial to fine airlines for refusing to pay compensation for long delays, as this would have to be done on the basis of a court's interpretation, as opposed to a precise concept enshrined in a regulatory or legislative text.

For further information on this topic please contact Pierre Frühling at Field Fisher Waterhouse LLP's Brussels office by telephone (+32 2 732 14 05), fax (+32 2 732 14 15) or email (pierre.fruhling@ffw.com).

Endnotes

(1) C-402/07 and C-432/07, November 19 2009.