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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