New preliminary question on Sturgeon and Montreal, Part I

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In Sturgeon, the European Court decided on the basis of the principle of equal treatment that passengers of a delayed flight also have a right to compensation. Airlines argue that this decision violates the Montreal Convention. Preliminary questions on this issue have been asked by the English High Court (Case C-629/10, TUI a.o. v. Civil Aviation Authority), and the German Amtsgericht Cologne (Case C-581/10, Nelson v. Lufthansa).

Last week, it was announced that yet another lower German court, the Amtsgericht Geldern, has asked the European Court the same question (Case C-255/11, Büsch and Siever v. Ryanair).

The fact that two German lower courts ask this question is remarkable because the highest German civil court, the Bundesgerichtshof (BGH), was the first major national court to acknowledge the validity of Sturgeon. It did so only three weeks after the European decision was handed down (BGH 10 December 2009, Xa ZR 61/09). A few months later, the BGH succinctly considered with respect to the compatibility of Sturgeon with Montreal: ‘… that the European Court would have overlooked Art. 29 Montreal Convention cannot be accepted.’ (BGH 18 February 2010, Xa ZR 95/06, para. 20: ‘... dass er Art. 29 MÜ übersehen hätte, kann nicht angenommen werden.’)

Art. 29 Montreal Convention provides that any action for damages against airlines for delay ‘… can only be brought subject to the conditions and such limits of liability as are set out in this Convention’. This triggers the question: does Sturgeon respect the Convention’s exclusivity?

The answer is most probably yes. Already in IATA (2006), the European Court drew a distinction between individual damage and identical damage. It held that Montreal governs the first category, and the Regulation the second. In fact, the Regulation intervenes at an earlier stage than the Convention. The Court also held that the Convention did not prevent other forms of intervention to redress, in a standardised and immediate manner, the damage that is constituted by the inconvenience that delay in the carriage of passengers by air causes. This redress can take the form of care (hotel, meals) or monetary compensation for loss of time.

In other words, Sturgeon deals with damage that is identical for all passengers. Therefore, it is highly likely that the European Court will hold, as it did in IATA, that Sturgeon does not violate the exclusivity of the Montreal Convention.

Next blog post: is Sturgeon compensation compensatory or not?

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What passengers think of airlines

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The Anglo-American poet W.H. Auden once said: “Thou shalt not sit with statisticians nor commit a social science”. Auden may have been right in many respects but I would say we could make an exception for consumer surveys.

In November 2010, German consumer organisations conducted a passenger survey on how airlines dealt with Air Passenger Rights. The full survey (in German) can be found here.

The results did not come as a surprise (and also confirmed that social sciences often confirm what we already know but formulate it in a more sophisticated way). 

The survey showed the lack of compliance with the Regulation by many if not most airlines. The most striking conclusions were:

• a large majority of airlines ignores the obligation to provide care and compensation;
• only 25% of the airlines offers compensation, mostly only after a passenger’s request;
• more than 50% of the passengers was not informed of their rights;
• most airlines respond very slowly to requests;
• 22% of passengers did not receive an answer from the airline;
• only 3% of the cases ran smoothly for passengers.

The outcome of the survey suggests that many airlines boycott European legislation or at least do not take it seriously. This goes for many if not most obligations airlines have under the Regulation.

Considering the consistency of passengers’ experiences, it is likely that this is not a matter of poor management but part of the airlines’ corporate policies. Policies directed from the boardrooms. Designed to satisfy shareholders, inevitably to the detriment of air passengers rights.

On a positive note, the survey also brings to light that there must be one or two airlines that take passengers rights seriously. It would be very useful if new Air Passenger Rights surveys would no longer look at the airline industry as a whole but at how airlines perform individually. This would be of great help to passengers when choosing which airline to fly.

Thinking about this, I’m actually quite happy to sit with statisticians and commit a social science.

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The European Court on ‘extraordinary circumstances’, Part II

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The European Court’s Eglitis decision, handed down on 12 May 2011, did not attract much attention. True, the case is not spectacular but it sheds a bit more light (darkness some will say) on the meaning of ‘extraordinary circumstances’ in case of cancellation or a long delay (Air Passenger Rights, p. 35-36 and 50-51).

On 14 July 2006, passengers for the Air Baltic flight from Copenhagen to Riga, departure time 20.35, had boarded the aircraft when Swedish air space in the Malmö region was closed as a result of failures in the power supply. This led to a breakdown in radars and air navigation systems and prevented the aircraft from taking off. At 22.45 the passengers were told that the flight was cancelled.

Two passengers, Mr Eglītis and Mr Ratnieks, brought a compensation claim against Air Baltic. They submitted that the reason for the cancellation was not the closure of Swedish air space but rather the expiry of the permitted working hours for the crew of that flight. Four years after the cancellation, the Latvian Supreme Court asked the European Court whether the cancellation was caused by extraordinary circumstances.

The European Court said that an air carrier must implement all reasonable measures to avoid extraordinary circumstances. Therefore, at the stage of organising the flight, it must take account of the risk of delay connected to the possible occurrence of such circumstances. It must, consequently, provide for a certain reserve time to allow it, if possible, to operate the flight in its entirety once the extraordinary circumstances have come to an end.

However, the length of the required reserve time must not result in the air carrier being led to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time.

What are the consequences of this decision? At main hubs, airlines will have reserve personnel available so that they cannot invoke extraordinary circumstances. At distant airports this may be different. However, the decision implies that when a flight is delayed, airlines cannot cancel a flight for the sole reason that the crew had reached its permitted working hours. It can only do so if it can prove that allowing for reserve personnel would have led to intolerable sacrifices in the light of the airline’s capacities.

>> See my website for an overview of all decided and pending European cases on Air Passenger Rights <<

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Please make yourself comfortable on the airport floor

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In my previous posts I wrote that the López Sousa family had to spend the night at Paris Charles de Gaulle airport and therefore claimed € 650 compensation for non-material damage from Air France.

To see what the family had gone through, I browsed www.sleepinginairports.net where people share their airport sleeping experiences with fellow airport sleepers around the world. And guess what? A poll over 2010 put Charles de Gaulle on top of the world’s worst airports. This is what travellers wrote:

"I could not believe the filth from hell, the bathrooms were worse than some I have seen in Africa!”

"I never imagined an airport in Europe could be so crappy. It’s the dirtiest airport I have ever set foot in.”

"The SAS-people told us: 'You are lucky, you can leave. We have to work here every day."

Reading this, € 650 compensation for the whole family does not seem much for experiencing such a nightmare.

The sleeping-in-airport-guys claim that airport sleeping is no longer just for the cheap young backpacker. “Nowadays, you'll find travellers of all ages and incomes stretched out on airport floors around the world.” There you are. Next time your flight is cancelled and you complain about having to spend the night in the airport terminal rather than in a hotel room, airline staff will probably be instructed to tell you this:

“Oh, come on. Stop nagging, you bum-on-seat. Sleeping in a hotel is for old fashioned Brussels eurocrats who have lost touch with modern life. Please do make yourself comfortable on the floor and enjoy the company of travellers of all ages and incomes. We hope you enjoyed your cancelled flight with us and look forward to welcoming you on board again soon. Nighty night, sleep tight.”


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Compensation for having to spend a night at the airport?

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The López Sousa family was also on the Air France flight that returned to Paris (see two previous posts). Air France rebooked them on a flight 24 hours later but did not offer hotel rooms (Air Passenger Rights, p. 33). The family was left to spend the night in the terminal. 

Back home they claimed expenses of € 20.50 for each meal taken in the airport. Air France refused to pay because, it said, the family had not asked for meals at the airport... Advocate General Sharpston wiped the floor with this argument: the obligation to provide care and assistance is in no way contingent on a request by the passenger. Articles 8 and 9 clearly say that passengers shall be offered care. Also, the airline cannot deduct these costs from the € 250 compensation the passenger receives for the cancellation. See my post of 29 June 2011.

More important than the costs for the meals was that the airline had not offered the López Sousa family hotel accommodation and that it seemed to get away with it. The family had not made hotel costs - their night in the airport terminal came for free - so they had no expenses to claim. This looked like a win-win situation for the airline.

But the López Sousa family did not take this lying down and they claimed € 650 compensation for non-material damage: for having to spend a very uncomfortable night in the terminal. Whether they will be successful with their claim is for the national law to decide because the European Regulation does not deal with it. So in the end, one EU citizen may get compensation for non-material damage, and the other not.

From an EU perspective this is of course hard to accept. The European Commission plans to propose changes to the Regulation and when doing so it should consider giving passengers a right to € 200 compensation for each night that the airline fails to provide them with a hotel. This would ensure that all passengers benefit equally from the right to care in the Regulation (Air Passenger Rights, p. 19, 33 and 46).

Until then, airlines may keep considering that it is cheaper to let passengers spend the night on the floor of an airport terminal than to offer them hotel accommodation. This annoys the hell out of passengers but for some airlines this seems to be of minor concern. If at all.

Opinion Advocate General Sharpston

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Taxi costs after rerouting to different airport

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The Rodríguez case I mentioned in my previous post raised more questions. The case was about an Air France flight from Paris to Vigo that took off as planned, but returned to Charles de Gaulle airport a short time later due to a technical problem. The following morning the Rodríguez family was re-routed on a flight to Oporto. From Oporto they took a cab to Vigo (150km/90 miles) at a cost of € 170. They asked Air France to reimburse these costs but the airline refused.

In case of cancellation, the airline can offer the passenger a rerouting to an airport in the same region (Article 8(3) Regulation 261/2004). One may doubt whether Vigo and Oporto are in the same region but the Rodríguez family did not complain as this was the quickest way for them to get home. Also because the airline had to pay for the transport costs to the original airport or to a close-by destination agreed with the passenger (Air Passenger Rights, p. 31).

So why did Air France refuse to pay? Well, airlines may not be very creative if it comes to serving passengers but they are bloody good at finding ways to duck their obligations. The airline said that Article 12 of Regulation 261/2004 allowed them to deduct the € 170 from the compensation that was asked for the cancellation of the flight (€ 250).

In her Opinion, Advocate General Sharpston calls this argument ‘nonsensical’. She makes clear that compensation for the taxi fare comes on top of the compensation for the cancellation of the flight. There is no doubt the European Court will follow this advice.

Opinion Advocate General Sharpston

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