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04 January 2017
In 2009 the European Court of Justice (ECJ) ruled in Sturgeon(1) that passengers whose flights are delayed by at least three hours are entitled to standardised financial compensation, notwithstanding the fact that the wording of the EU Air Passenger Rights Regulation (261/2004) provides no such remedy.
Sturgeon was received badly by the airlines, which felt that the ECJ was re-writing the Air Passenger Rights Regulation rather than interpreting it. But in 2012 the ECJ upheld Sturgeon with Nelson and TUI.(2)
On February 2 2016 the Bulach District Court (a municipality near Zurich) held(3) that Sturgeon does not apply in Switzerland. While the court noted that Switzerland adopted the Air Passenger Rights Regulation by virtue of the 1999 EU-Switzerland Air Transport Agreement, the court had doubts over whether Swiss courts must also follow ECJ case law regarding the regulation.
The court found that the Air Transport Agreement differentiates between pre-signature and post-signature case law.
Pursuant to the agreement, the regulations specified in its annex should:
"be interpreted in conformity with the relevant rulings and decisions of the Court of Justice and the Commission of the European Communities given prior to the date of signature of this Agreement [ie, June 21 1999]... The rulings and decisions given after the date of signature of this Agreement shall be communicated to Switzerland. At the request of one of the Contracting Parties, the implications of such latter rulings and decisions shall be determined by the Joint Committee in view of ensuring the proper functioning of this Agreement."
The joint committee is responsible for the administration and implementation of the agreement.
The ECJ handed down the Sturgeon and Nelson and TUI rulings after June 21 1999. The Bulach court found no evidence that the European Union had communicated the rulings through the official channels to Switzerland. Neither did it find any evidence that the joint committee had determined their implications.
The Bulach court concluded that Switzerland is not bound by such rulings. Accordingly, Sturgeon was not a precedent that the Bulach court had to follow.
Contrary to the ECJ position, the Bulach court held that the Air Passenger Rights Regulation provides financial compensation only in cases of cancellation, not in cases of flight delays. It appeared that in Sturgeon the ECJ had amended the regulation's text based on its own assessment of what the regulation should say – which was a legislative decision, not a judicial decision that courts are entitled to make. Accordingly, the Bulach court had no doubt that in the event of delays, passengers can only claim assistance (eg, by way of meals, accommodation, transport to accommodation, free telephone calls or emails and reimbursement or re-routing where the delay is at least five hours).
Even though the Bulach District Court is only a first-instance court, its judgment is well reasoned and carries some precedential value. Pending a decision from the Supreme Court or the enactment of new legislation, other Swiss courts dealing with cases of flight delays are unlikely to follow Sturgeon.
While the Bulach court judgment is good news for any airline operating in Switzerland, it is worth noting that that the Air Passenger Rights Regulation is being revised. As things stand, entitlement to compensation for flight delays will be enshrined in the revised regulation. Switzerland is likely to adopt the revised regulation under the Air Transport Agreement. Thus, the Bulach court judgment notwithstanding, Swiss courts are likely to accord compensation for flight delays in the not too-distant future.
For further information on this topic please contact Andreas Fankhauser at Baumgartner Mächler by telephone (+41 44 215 4477) or email (email@example.com). The Baumgartner Mächler website can be accessed at www.bmlaw.ch.
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