Good tidings: airline bites the dust before Court of Appeal Amsterdam

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On 6 December 2011, the Amsterdam Court of Appeal confirmed that Sturgeon is good law. It considered that there was no reason to ask the ECJ preliminary questions or to stay the proceedings and it awarded the passengers’ claim for compensation.

It did so in a case brought by China Southern Airways against EUclaim, the Dutch-based company that handles claims based on EU Regulation 261/2004 on Air Passenger Rights.

The case was about a couple and their son who had booked a flight Amsterdam-Beijing from tour operator Kuoni. The flight was to be carried out by China Southern Airlines. However, a technical problem with the aircraft caused the family to arrive in Beijing with a delay of over 24 hours. The three passengers transferred their claim of € 600 compensation per person to EUclaim on a no cure no pay basis.

In July 2010, the Dutch first instance judge considered that the ECJ’s Sturgeon decision is valid and it awarded the claim for compensation. The airline lodged an appeal with the Amsterdam Court of Appeal where it sang the chorus most airlines have been singing over the past two years. So here we go again: the airline argued that the ECJ’s Sturgeon decision is invalid, that the Court of Appeal should ask the ECJ preliminary questions and if it was not prepared to do so stay the proceedings until the ECJ has answered the pending preliminary questions regarding Sturgeon.

Like virtually all Dutch first instance judges, the Amsterdam Court of Appeal was not impressed by the airline’s arguments. It considered that the ECJ’s case law has been consistent from IATA to Sturgeon and that there are no indications that the ECJ will change its mind. It went on to refute the airline’s point of view with the same arguments I set out in my article in Air & Space Law. It did not come as a surprise that the Court concluded it saw no reason to ask the ECJ preliminary questions. 

The decision is a major boost for passengers and for claim handler EUclaim who are now able to bring thousands of claims against the airlines, backed by this Court of Appeal decision. 

At the same time, the decision is another blow for the airlines. This is the first time a Dutch Court of Appeal decides a Sturgeon case as a matter of principle and considers Sturgeon valid. The airlines are becoming more and more desperate and indeed China Southern Airlines has decided to bring the case before the Dutch Supreme Court (Hoge Raad). The Supreme Court will deal with this appeal, together with a number of similar appeals, in the spring of 2012. This may sound like a cliffhanger, but even the airlines know that it is not. Story to be predictably continued.

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