Overview of pending cases before the European Court in Luxembourg

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Now the evenings are getting longer, some may want to know which Air Passenger Rights cases are currently pending before the European Court of Justice. So let me give you a taste and smell of what is simmering in the cuisine luxembourgeoise. See my website for all pending and decided European cases.

Currently there are 12 cases pending. In one of them, the Rodriguez case, there is an Opinion of the Advocate General. I wrote about this case in previous posts:

Is a flight that returns to the airport ‘cancelled’

Taxi costs after rerouting to different airport

Compensation for having to spend a night at the airport

Sturgeon-Montreal compatibility

Of the other 11 pending cases no less than 4 are concerned with the compatibility of Sturgeon with the Montreal Convention: Van de Ven, Büsch and Siever, TUI, and Nelson. I wrote about this compatibility in previous posts:

New preliminary question on Sturgeon and Montreal, Part I

New preliminary question on Sturgeon and Montreal, Part II

Interpretation of Sturgeon

Of the 7 pending not concerned with Montreal three are about the interpretation of Sturgeon. It is likely these cases will be answered after the European Court has clarified the Sturgeon-Montreal-compatibility issue:

Folkerts: are the time limits of Article 6 (waiting time for care) additionally applicable to the calculation of the three hours Sturgeon delay?

Condor: is Sturgeon applicable if a flight departs on time, then returns to the departure airport, takes off again and arrives with a delay of more than three hours?

Esteves Coelho dos Santos: is Sturgeon applicable if a flight departs on time, was delayed at the stop-over airport and arrived at the destination with a delay of almost four hours?

Denied boarding

Two pending cases are about denied boarding:

Rodriguez Cachafero: does ‘denied boarding’ include the situation where an airline refuses passengers to allow boarding because the first flight on the ticket was subject to a delay and the airline allowed their seats to be taken by other passengers?

Finnair: is denied boarding also reasonable if it happens in order to reschedule of flights as a result of the extraordinary circumstances?

Care

One pending case is about limits to the duty to provide care:

McDonagh: Do circumstances such as the closures of European airspace as a result of the eruption of the Eyjafjallajökull volcano in Iceland justify a limitation on the airline’s duty to provide care?

Time limit

Finally, one pending case is about the applicable time limit for bringing a claim:

Cuadrench: Is the time limit for bringing a claim under Regulation 261/2004 the two year limit of Article 35 of the Montreal Convention or is it subject to national law?

All in all, it looks like there is something for everyone in the cuisine luxembourgeoise with the Steak Montreal avec sauce sturgeonaise as the main course. The only thing certain about this dish is that it will not be to everybody’s taste. 

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Silly season is over: Transavia sues EUclaim and Consumentenbond

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The silly season is over. Airline bosses are returning from their holidays and are dismayed that their nightmares (Air Passenger Rights, Sturgeon, EUclaim) have not disappeared. Some got even worse.

In early August, claim handler EUclaim and the Dutch consumer organisation Consumentenbond launched a joint website called ‘Flight Claim Service’ (in Dutch). The website gives an up-to-date overview of delayed flights. With a couple of clicks, duped travellers can submit their claims.

Not really something that lowers the temperature in the airlines' boardrooms. Transavia’s CEO Bart Gräber decided to jump and to sue EUclaim and the Consumentenbond before a Dutch court. The case will be heard on 14 September. Transavia is a Dutch based low-cost airline and part of the Air France-KLM group.

According to Gräber, the information provided by EUclaim and the Consumentenbond is misleading because it suggests that passengers are entitled to Sturgeon compensation whereas this would not be the case in two third of the listed Transavia flights. Gräber argues that this is ‘misleading advertising causing unnecessary damage to the Transavia brand’.

Hendrik Noorderhaven, owner and founder of EUclaim, is confident about the outcome of the case. He says that flights do not appear on the list if there are extraordinary circumstances such as strikes or local unrest. Moreover, airlines are free to give their view. The point is, says Noorderhaven, that he disagrees with airlines when it comes to technical problems: ‘These usually do not amount to extraordinary circumstances.’

Indeed, in its Wallentin decision, the European Court limited the possibilities for airlines to invoke extraordinary circumstances in case of a technical problem. It held that a technical problem is not covered by the concept of ‘extraordinary circumstances’, unless that problem stems from events that are not inherent in the normal exercise of the activity of the air carrier and are beyond its actual control. Extraordinary circumstances can occur, ‘for example, in the situation where it was revealed by the manufacturer of the aircraft comprising the fleet of the air carrier concerned, or by a competent authority, that those aircraft, although already in service, are affected by a hidden manufacturing defect which impinges on flight safety. The same would hold for damage to aircraft caused by acts of sabotage or terrorism.’

This decision implies that technical problems amount to extraordinary circumstances in exceptional cases only. National courts in the Netherlands and other countries have consistently followed this European line. An overview published by the German tourist organisation ADAC shows that German courts considered technical problems to be an extraordinary circumstance in only 2 out of 18 cases (and one of these two decisions was probably incorrect).

As EUclaim's and Consumentenbond’s statements follow the European and national case law it is hard to see how this can give rise to a claim for damages to the Transavia brand. Obviously, there can be different opinions about the entitlement to compensation in specific cases but it is rather doubtful this would justify a gagging order against consumer organisations and ban them from giving their opinion about a delayed flight until a court of law has given its verdict. Moreover, EUclaim and Consumentenbond do not target Transavia but list all delays of all airlines relevant to their potential customers.

The good news is, of course, that Transavia in fact admits that one third of the assertions of EUclaim and the Consumentenbond are correct. Passengers on these flights can be confident that Transavia will promptly pay them their Sturgeon compensation.

The case shows that airlines still have some way to go to settle in the world of Air Passenger Rights. Quite a few have also come a long way: until not so long ago, many airlines advertised flight fares without airport charges and fuel surcharges thus giving passengers a wrong impression about the price they had to pay for their flight. Talking about misleading advertising...