Sturgeon 5: The Final Decision - Another Victory for Passengers

--------------------------------------------------------------------------------------

The Air Passenger App

Everything you always wanted to know about Air Passenger Rights

but the airlines and the European Commission are afraid to tell you

--------------------------------------------------------------------------------------

Today, the European Court of Justice ruled that air passengers have a right to compensation in case of a long delay, unless the delay is caused by extraordinary circumstances (see full text of the judgment). Is this news? No. The Court said the same in its Sturgeon decision back in 2009. However, airlines had since obstructed this ruling both in the national courts and before the European Court. With unconvincing arguments they tried to make the European Court quash its own decision. Clearly, this was not going to work and indeed, it did not work. Today, the European Court once again confirmed its strong stance on protecting air passenger rights.

The decision is exactly the one I expected (as I wrote in 2010). The airlines must have known that they were going to lose the battle against Sturgeon. At least they should have known if they have been properly advised by their lawyers. It is therefore disappointing that national courts in the UK, the Netherlands and Germany felt convinced by the airlines’ flimsy arguments and decided to ask the European Court preliminary questions. This legal procession to Luxembourg has resulted in a three year delay in the proper enforcement of the airlines' obligation to pay air passengers compensation in case of a long delay. This was, of course, exactly what the airlines were aiming to achieve: causing a long delay in complying with European rules.

What will happen next? First, if national courts have stayed proceedings, these will be resumed in due course. Second, if the only dispute in a legal procedure is the validity of ‘Sturgeon’, airlines should behave like ladies and gentlemen and settle the passenger’s claim including interests and costs without further delay and ado. Third, in a normal world one would expect the airlines from now on to fully comply with the European Court’s ruling and pay air passengers compensation in case of a long delay.

The problem is, however, that the past years have shown that the world of airlines is not a normal world and that complying with the law does not seem to have a high priority in many airlines' board rooms. This is a matter of great concern, not only for passengers but also for the European Commission. Every day, the European rules on air passenger rights are obstructed and frustrated by airlines using their power and money to put off passengers.

My expectation for the near future is that some airlines will have enough of this and start developing business models that respect passengers and their rights in a proper and fair way. So much so that we will be able to distinguish between the good, the bad and the ugly airlines.

--------------------------------------------------------------------------------

Everything you always wanted to know about Air Passenger Rights

but the airlines and the European Commission are afraid to tell you

 The Air Passenger Rights App

-------------------------------------------------------------------------------- 

Sturgeon’s Fate, Part 4: The wait is almost over...

--------------------------------------------------------------------------------------

Air Passenger Rights Book --- Air Passenger Rights App --- Passagiersgids

Everything you always wanted to know about Air Passenger Rights

but airlines were afraid to tell you

--------------------------------------------------------------------------------------

The wait is almost over: the European Court will hand down its decision in the Nelson and TUI cases on Tuesday 23rd October at 9.30am.

A quick reminder: in Sturgeon (2009) the European Court decided that passengers have a right to compensation in case of a delay of three hours or more (unless the delay was caused by extraordinary circumstances). The airlines were furious and have urged the European Court to change its mind. It is unlikely that the Court will do so but we will only know for sure when the Court has spoken on 23rd October. It will then hand down its decision in two combined cases: TUI and Nelson.

Two thoughts may be worth mentioning.

First, it is clear that the European Court has not rushed its decision, thus depriving the airlines from the argument that the Court has not seriously looked at their arguments and declare the new Court’s decision ‘invalid’ again...

Second, in early October some judges’ tenures expire, new judges are sworn in and the President of the European Court is elected. This means that the decision will be of the Court in its new composition, thus depriving the airlines from the argument that the decision is invalid because it was decided by the old court. Of course, this is a nonsensical argument but in the past the airlines have shown to be very creative in this respect.

Before that D-Day for airlines and passengers two other decisions on Air Passenger Rights will be published: Finnair (C-22/11) and Rodriguez Cachafero (C-321/11), both about denied boarding and both will be published on Thursday 4 October. Click here for the Opinion of Advocate-General Bot in the Finnair case.

--------------------------------------------------------------------------------

Everything you always wanted to know about Air Passenger Rights

but airlines were afraid to tell you

Air Passenger Rights Book - Air Passenger Rights App - Passagiersgids

-------------------------------------------------------------------------------- 

Sturgeon’s Fate. Part 3: ECJ to hand down decision ‘in the short term'

--------------------------------------------------------------------------------------

Air Passenger Rights Book --- Air Passenger Rights App --- Passagiersgids

Everything you always wanted to know about Air Passenger Rights

but airlines were afraid to tell you

--------------------------------------------------------------------------------------

In a ruling of 15 June, the Dutch Supreme Court has said that the European Court’s decision in Sturgeon II is to be expected ‘in the short term’ (‘op korte termijn', para. 3.2). The Dutch Court was supposed to hand down a substantive ruling in the Dutch Sturgeon case in late September. But in its 15 June ruling, the Supreme Court said that ex officio enquiries had made clear that the European Court’s decision is to be expected ‘in the short term’. The Dutch Court therefore decided to postpone its decision until the ruling of the European Court.

The question is, of course, what ‘in the short term’ is exactly means. Everyone who recently asked the European Court when the Sturgeon II decision could be expected was told that this would take ‘months’. It suggested that the decision would not be handed down any earlier than November or December. This does not seem to be exactly the same as ‘in the short term’. It is therefore likely, as I said before, that Sturgeon II is to be handed down this summer. This would make sense because the Advocate General’s Opinion clearly indicated that the case is straightforward.

--------------------------------------------------------------------------------

Everything you always wanted to know about Air Passenger Rights

but airlines were afraid to tell you

Air Passenger Rights Book - Air Passenger Rights App - Passagiersgids

-------------------------------------------------------------------------------- 

The New Myth: Air Passenger Rights cause safety risks

--------------------------------------------------------------------------------------

Air Passenger Rights Book --- Air Passenger Rights App --- Passagiersgids

Know your Air Passenger Rights when you need them

--------------------------------------------------------------------------------------

In a recent Dutch report ‘experts’ argue that European Air Passenger Rights cause dangerous situations. Their ‘evidence’? One example that does not prove anything. Their only purpose seems to scare off passengers by using nonsensical arguments. Here is the example (Dutch original, p. 32-33, my translation):

The departure of a Boeing 747, bound for the US West coast, was delayed because of a damaged cargo hold that had to be repaired for safety reasons. During the flight the headwind appeared to be much stronger than predicted so more fuel was used than planned for. The flight reached a stage for which the handbook advises to make an unplanned refuel stop. The plane could have continued its journey and would possibly not have gotten in an emergency situation (definition: at landing less than enough fuel to fly for half an hour) when landing at the airport of destination. The airline put pressure on the captain to continue the journey but he decided to make a stopover, which led to two hours extra delay. This caused a total delay of 8 minutes over the limit for a claim.

Such a claim was indeed submitted by four passengers. If awarded the fine (sic) would be 4 times 600 makes 2400 euro. However, in principle, all 400 passengers could have claimed, with potentially a total amount of 240,000 euro. This knowledge has, of course, an impact on considerations in marginal situations where enough pressure exists, see the case above, to choose the cheapest option.

The example raises a number of questions.

1. It suggests that we are still living in the early days of flying and that a plane needs to make several stops to get to a far-away-destination. However, nowadays a long haul airliner can fly between 9,500 and 17,500km non-stop. A flight from (say) Amsterdam to (say) San Francisco is 8,740km. Hence, with full fuel tanks the destination can be reached without any problem. Of course, this would not be safe and efficient so airlines decide on the basis of several data how much fuel will be needed so that the destination is reached with a safe fuel level (neither too much, nor too little). Considering the high fuel prices, this means that to a great extent the airline's decision about the amount of fuel is a commercial decision. Therefore, it is this decision, and not any Air Passenger Right, that may cause a necessary stop to refuel, as well as the subsequent delay and any safety concerns.

2. The example suggests that flying with a safety risk is a cheaper option than possibly having to pay compensation for delay. That is rubbish. The risk of having to pay compensation for delay is always lower than the risk of an accident. Hence, the safest option is always the cheapest option. If all 400 passengers claim compensation for delay (a theoretical possibility), this might cost the airline € 240.000 (but it will boost customers’ confidence in the airline). The alternative is that 400 passengers might be killed. This would cost the airline at least € 240.000.000, leaving aside the huge additional damage to brand and reputation. Could it be that airlines may underestimate the latter risk because it is insured whereas the former is (probably) not?

3. It would be interesting to know which airline puts its captain under pressure to continue the flight despite safety concerns. In most countries such conduct amounts to a criminal act (it may very well be that the incident never happened but was simply made up to make a case against air passenger rights - so much for the reliability level of the report).

4. The key rule in flying is that it is the captain and the captain only who takes decisions about the airplane from before departure until after arrival. Compensation concerns must not be of any concern to the captain. And he or she must not in any way be influenced by the airline. An airline that nonetheless does so or tries to do so should be blacklisted.

5. One of the ways to implement this key rule is for the airline to take out insurance for the risk of having to pay compensation. This can be done through an insurance company or captive insurance. It implies that the management of the compensation risk is moved to a third party that is at arm’s length of day-to-day operations. This may help the airline to link the compensation risk to the sum of its operations, rather than to one flight. It may also help to put the airline’s focus on structural rather than incidental measures to limit the compensation risk.


6. It is worrying that these so-called ‘experts’ provide the Dutch government with such poor advice. Their only aim seems to be to echo the airline lobby by unfoundedly putting air passenger rights in a bad light.

7. Finally, the DEGAS report makes an interesting observation: ‘Unlike often assumed, safety can of course never be the first priority.’ Hopefully, the authors meant to say that safety can never be an absolute priority. Obviously, safety must always be the first priority and, fortunately, for most airlines it is.

By the way: at the Thames Diamond Jubilee Pageant, the Duchess of Cambridge looked splendid in her Air Passenger Rights dress.

-------------------------------------------------------------------------------------

Know your Air Passenger Rights when you need them

Air Passenger Rights Book --- Air Passenger Rights App --- Passagiersgids

-------------------------------------------------------------------------------------

Sturgeon’s Fate. Part 2: AG advises Court to confirm Sturgeon

--------------------------------------------------------------------------------------

Air Passenger Rights Book --- Air Passenger Rights App --- Passagiersgids

Know your Air Passenger Rights when you need them

--------------------------------------------------------------------------------------

Today, airlines got another Luxembourgian punch on the nose when the Advocate General at the European Court of Justice handed down his Opinion. He advises the Court to confirm its Sturgeon decision, in which it held that passengers have a right to compensation if their flight has a delay of three hours or more.

Here is the Advocate General’s scathing key consideration (para. 39): ‘As to the actual principle of compensation of air passengers whose flight has been delayed by at least three hours, since nothing new which might call into question the interpretation that the Court gave of those provision in Sturgeon and Others has been presented by the parties to the disputes in the main proceedings, I do not see why the Court should reconsider that interpretation.’

No unclear words here: the airlines have not produced anything new that is worth considering by the Court. Therefore, the Advocate General can confine himself to once again explain what the Court had already explained in Sturgeon and Others and in IATA.

The Opinion does not come as a surprise for those who know a bit about EU law and are not impressed by the continuous legal jet blast of the airlines. In early 2009, I predicted Sturgeon and since this decision was handed down I have argued that it was to be applied by the national courts and that it would be confirmed if it were to come back to the European Court. The Advocate General’s Opinion now clearly confirms this position. The way the Opinion is drafted strongly suggests that the Court will take the same position.

This is the penultimate act in the Sturgeon drama. Since 2009, airlines have argued that this decision was wrong. In August 2010, they (too) easily convinced the High Court in London to ask the European Court questions about the validity of Sturgeon. 4 months later, the High Court’s questions arrived in Luxembourg. In March 2012, 28 months after Sturgeon, the hearing in Luxembourg took place. And today, 30 months after Sturgeon, the Advocate General handed down his Opinion. This summer, the Court will write the final act.

It is likely the airlines’ aim has never been to win the Sturgeon battle but rather to frustrate and delay application of the Sturgeon decision in the national courts. In this respect, they have been fairly successful. But now the time has come for them to bite the dust, comply with the law and treat their customers fairly.

-------------------------------------------------------------------------------------

Know your Air Passenger Rights when you need them

Air Passenger Rights Book --- Air Passenger Rights App --- Passagiersgids

-------------------------------------------------------------------------------------