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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Dark clouds for airlines before Dutch Supreme Court

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In January 2012, several airlines lodged appeals before the Dutch Supreme Court (Hoge Raad) against decisions of lower courts awarding Sturgeon compensation for delayed flights. On Friday 11 May, the Advocate General handed down his Opinion in which he advises the Supreme Court to dismiss all airlines’ claims. In a damning conclusion for the airlines the Advocate General holds that the European Court has already answered all their questions. The decision of the Supreme Court will probably follow in September.

Interestingly, at the Supreme Court hearing in March, one person was sitting at one side of the room (EUclaim’s CEO Hendrik Noorderhaven) and fourty something black and grey airline representatives at the other. Apparently, the airlines thought their massive presence would impress the Supreme Court. In fact, however, this is exactly the kind of behaviour that judges do not like. It looks like airlines have problems to understand the distinction between a lobby and a court of law.

The airlines have asked the Supreme Court to quash the lower courts’ decisions. Why? Because the lower courts applied Sturgeon and failed to ask the European Court preliminary questions.

In his Opinion, the Advocate General deals with the airlines’ arguments in the same vein as I did in various publications and various previous blog posts. The Opinion refers a number of times to my publications but the ground for the Advocate General’s opinion is, of course, the European Court’s case law itself. This case law provides for a consistent line from IATA to Sturgeon and makes clear that passengers of delayed flights are entitled to compensation.

According to the Advocate General, Sturgeon reflects European Union law and is to be applied in all EU Member States. He considers this to be an acte éclairé (not to be confused with an éclair, an oblong pastry), which means that the European Court has already answered the questions raised by the airlines. The Advocate General concludes that the lower courts were right to apply Sturgeon and that there is no need for the Supreme Court to ask the European Court preliminary questions.

The way the Opinion is drafted suggests that the Advocate General has no doubt whatsoever about what the airlines wrongly call the ‘validity’ of Sturgeon. This adds to the expectation that the Supreme Court will follow the Advocate General’s advice. The decision of the Dutch Supreme Court is scheduled for late September.

On Tuesday 15 May 2012, the Opinion of Advocate General at the European Court in the TUI case will be published. Anyone expecting a surprise?

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Know your Air Passenger Rights when you need them

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