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

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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.

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Know your Air Passenger Rights when you need them