The European Court on hotels, meals, and taxi costs (Rodriguez II)

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In my previous blog post (21 October 2011), I discussed the first part of the European Court’s decision in Rodriguez. In the second part the Court confirmed the airline’s duty to reimburse passengers for the costs of meals, hotels, and taxis.

It follows from the first part of the Court’s decision that the Air France flight from Paris to Vigo was cancelled. Something no one doubted apart from Air France and some French and British government officials in their pleadings before the European Court.

Fixed compensation

In case of cancellation a passenger is entitled to a fixed amount of compensation (€ 250 for this flight of under 1.500 km), unless the cancellation is caused by extraordinary circumstances (Air Passenger Rights, p. 35-37). Whether this was the case with respect to the Air France flight is for the referring Spanish court to decide.

Assistance: meals and hotel

In case of cancellation, a passenger is always entitled to assistance, such as meals and hotel accommodation, regardless of the reason for the cancellation. Air France breached its obligations under the Regulation by failing to provide passengers with meals and hotel accommodation. When passengers later asked Air France to reimburse them for the costs they had incurred, the airline refused to do so. In Rodriguez, the Court confirmed that Air France was wrong. If the airline fails to provide assistance, it must compensate passengers for the costs they incurred for hotel and meals (Air Passenger Rights, p. 33). If the passenger is also entitled to fixed compensation (here: € 250), the reimbursement comes on top of this.

Re-routing and taxi costs

In case of cancellation a passenger is always entitled to either a re-routing or a refund. If the passenger is re-routed to a different airport, he is also entitled to a free transfer to the original destination (Air Passenger Rights, p. 30-32). In the Air France case, three passengers were rerouted to Oporto and had to take a cab to Vigo (90 miles). The airline refused to pay for the costs of the cab (€ 170). In Rodriguez, the Court confirmed that Air France was wrong: it must reimburse passengers for these costs. If the passenger is also entitled to fixed compensation (€ 250), the reimbursement comes on top of this.

Compensation for spending the night at the airport

If a passenger is not offered hotel accommodation and he is not able to find it himself, he has no choice but to spend the night on a cold airport floor. This experience comes for free so he has no expenses to claim from the airline. In such a situation only the passenger feels the pain (non-material damage), not the airline.

The problem is that the Regulation does not provide for a remedy for this airline’s breach of European law. However, the Court confirmed that the passenger can claim compensation on the basis of his national law or the Montreal Convention (see the European Court in Walz). Not all national laws provide for compensation for non-material damage. But in such a case it may very well be that European law requires the national law to be interpreted in such a way that it provides a real and effective remedy (compensation for the passenger) for the airline’s breach of European law.

Alternatively, in the forthcoming review of the European Regulation, the European Commission could consider proposing a right of passengers to claim € 200 compensation for each night the airline fails to provide hotel accommodation to encourage airlines to respect the passengers’ right to assistance.

Article 12 European Regulation

The Court also explained Article 12, one of the more opaque provisions of the Regulation. It runs as follows: ‘This Regulation shall apply without prejudice to a passenger's rights to further compensation. The compensation granted under this Regulation may be deducted from such compensation.’

The Court said that Article 12 allows the national court to order an airline to pay a passenger compensation for breach of contract on another legal basis than the Regulation. This ‘other legal basis’ may be the Montreal Convention or national law. Compensation on the basis of the Regulation may be deducted from compensation on the basis of Montreal or national law.

What does this mean in practice? Claims for reimbursement of costs a passengers makes for hotels, meals, and taxis (Article 8 and 9 Regulation) always come on top of the fixed compensation (Article 7 Regulation). Claims for other damage based on Montreal or national may (not: must) be set off with the fixed compensation.

And what about the claim for spending the night at the airport? This would be a claim under Montreal or under national law and such a claim may be set off with the fixed compensation of the Regulation. However, it is unlikely the courts will do this because this claim is so strongly related to the breach of Article 8 of the Regulation that offsetting would be unreasonable.

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