Air Passenger Rights: Sturgeon’s Fate. Part 1: The Hearing

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This summer, the European Court of Justice will decide the fate of its Sturgeon decision. In this decision of 19 November 2009, the ECJ held that passengers not only have right to compensation in case of denied boarding and cancellation but also in case of a long delay.

The first stage in this process was a hearing on Tuesday 20 March where the Court heard two cases in which national courts have asked questions about Sturgeon.

The second stage will be the Advocate-General’s Opinion. This non-binding advice to the Court will be delivered on 15 May. In the vast majority of cases the Court follows the AG’s Opinion.

The final stage will be the Court’s decision, which it will hand down either before it rises for the summer vacation on 16 July, or after it has reconvened in early September. Either way, my expectation is that it will be an unfortunate day for the airlines. See my blog posts here and here.

The first case the Court heard was the Nelson case. The Nelson family’s Lufthansa flight from Lagos (Nigeria) to Frankfurt (Germany) had a delay of over 24 hours. Before the Cologne Amtsgericht, they lodged a claim for Sturgeon compensation. When Lufthansa argued that Sturgeon was not in line with the Montreal Convention, the Amtsgericht decided to ask the ECJ preliminary questions.

The second case was that of TUI Travel, British Airways, easyJet and IATA against the Civil Aviation Authority (CAA). In 2010, the CAA began to carry out its task to enforce Sturgeon. In order to stop this, TUI c.s. filed suit against the CAA before the High Court in London. Also this court decided to ask the ECJ questions about Sturgeon.

At the hearing in Luxembourg on 20 March, the parties to these two cases had the opportunity to express their views. Prior to the hearing they had already submitted their written observations. These were published in the ‘Report for the Hearing’, together with the views of some Member States and European Union institutions (Commission, Parliament and Council).

It will come as no surprise that Lufthansa and TUI c.s. argued that the right to compensation in case of delay as set out in Sturgeon is not in line with the Montreal Convention. Their views were endorsed by the Governments of the United Kingdom and Germany and by the EU Council of Ministers.

The Nelsons and the CAA did not submit observations but their positions were implicitly supported by the Governments of France and Poland, the European Commission and the European Parliament. They all argued that Sturgeon was in line with the Montreal Convention.

Four points are worth noting.

1. The position of the German Government runs counter to that of the German Federal Court (BGH). The BGH was the first national court to follow Sturgeon and did so only three weeks after Sturgeon was handed down. It is likely that the German Government’s position was effectively influenced by airline lobbying. There is, of course, nothing wrong with listening to views expressed by lobby groups but as a civil servant one has to be aware of the intrinsic lack of balance in the lobbying process as weaker parties, such as consumers, have a weaker lobby, if they have one at all.

2. The French Government agrees with Sturgeon and thus takes a different view than the German Government and the Council of Ministers. Apparently, the French civil servants were less impressed by Air France than their German counterparts were by Lufthansa.

3. The hearing illustrates why the British airlines chose a case against the CAA to pursue preliminary questions. They knew the CAA would not be able to present a separate position before the ECJ to support Sturgeon because the CAA is part of the UK government. And the airlines were confident that the UK government would support their position. Which it duly did. Some may see this as smart litigation but it is often counterproductive, as these tactics tend to annoy rather than impress the Court.

4. The Judge-Rapporteur in the two cases is Judge Malenovsky. He has been Rapporteur in almost all Air Passegner Rights cases, including IATA and Sturgeon. The Judge-Rapporteur is a key figure in the procedure. He writes the Report for the Hearing and usually also the draft decision. If anything can be concluded from this, it is that the Nelson and the TUI cases are business as usual for the ECJ.

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Know Your Air Passenger Rights when you need them