December 01 2010
The EU Denied Boarding Regulation (261/2004) establishes common rules on compensation and assistance for passengers in the event of delay, cancellation and denied boarding. One of the main objectives of the regulation is to ensure that air carriers operate under harmonised conditions in a liberalised market.(1) Therefore, all member states should apply the same harmonised rules for all flight delay, cancellation and denied boarding cases. However, some aspects of carrier liability are not covered by the regulation; therefore, national laws continue to apply outside the regulation's scope. For example, limitation periods remain subject to national laws.
The question of the applicable limitation period for actions covered by the regulation was examined in a judgment issued by the Court of Zaventem on October 14 2010.
Adly Messiha sued TUI Airlines Belgium after he was denied boarding on a flight from Zaventem airport in Belgium to Cairo in Egypt on September 25 2008. The writ of summons was served on January 29 2010 (ie, 16 months after the incident).
The question at issue was the applicable limitation period under Belgian law for legal actions governed by the regulation.
The claimant argued that the Montreal Convention 1999 determined the applicable limitation period. Article 35 of the convention provides that "the right to damages shall be extinguished if an action is not brought within a period of two years". However, the defendant argued that the limitation period was determined by the Belgian Law of August 25 1891, which constitutes the common law for contracts of carriage. Articles 9(4) and (5) of the Belgian law provide for a one-year limitation period.
The court ruled that the Belgian law applied; therefore, the claim was dismissed.
The judgment referred to the July 9 2009 ruling of the European Court of Justice (ECJ) on in a dispute governed by the EU regulation.(2) The case involved a claim for flight cancellation. The ECJ ruled that in determining the competent jurisdiction, the Montreal Convention did not apply, since the regulation and the convention constituted two distinct regulatory frameworks.(3)
The Court of Zaventem held that the same reasoning applies to limitation rules. Thus, the provisions of the convention were excluded and the one-year limitation period applied.
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