The European Court on: ‘When is a flight cancelled?’ (Rodriguez I)

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In my first posts on this blog, I discussed the Advocate General Sharpston’s Opinion in the Rodriguez case (29 June, 1, 3, and 8 July). On 13 October 2011, the European Court followed her Opinion, thus further clarifying and strengthening the rights of air passengers. The Court's decision concerns two topics: cancellation (this post) and compensation (next post).

The case was about an Air France flight from Paris to Vigo (Spain) that took off as planned, but returned to Paris a short time later due to a technical problem. The plane did not proceed any further and all passengers were rebooked onto alternative flights, most on flights that only departed the following day. Air France did not offer the passengers meals or hotel accommodation. Some of the passengers were rebooked on a flight to Oporto and had to take a cab to Vigo (90 miles). The airline refused to pay for the costs of the cab (€ 170, £150).

Passenger: My flight was cancelled and I need a hotel room for me and my two children.

Air France: Je suis désolé, but your flight was not cancelled.

P: Excusez-moi? Our flight returned to the airport and here we are again!

AF: This doesn’t mean your flight was cancelled.

P: Why not?

AF: Because the flight took off.

P: Yes, but we're back and didn’t get to our destination.

AF: Madame, the European Regulation only requires us to get you in the air, not to get you to your destination. And, à propos, did we ever say the flight was cancelled?

P: But if it wasn’t cancelled, then what the hell was it?

AF: I don’t know. That’s not my business. My business is to reject passenger claims.

P: So you don’t offer us accommodation for the night?

AF: Of course I do. This wonderful airport is all yours so please find yourself a nice spot on the floor. I’m sure your children will love it.

In short, Air France argued that a flight could only be cancelled if it did not take off at all. As the flight did take off, the airline said it was not obliged to assist or compensate the passengers under the European Regulation.

In the European Court, it was not Air France that argued its case because it was late with submitting its observations. Their interests were duly represented by ... the French and British governments. In the European Court, governments often act as lobbyists for their national airlines, identifying them with their ‘national interests’, and consequently considering consumer rights as not being in the national interest.

Not surprisingly, the European Court wiped the floor with the airline’s/governments’ arguments. It said that a flight is not only cancelled if the aircraft fails to take off at all, but also if the aircraft takes off but, for whatever reason, returns to the airport of departure where the passengers are transferred onto other flights.

How did the Court reach its conclusion? The Regulation defines a cancellation as ‘the non-operation of a flight which was previously planned and on which at least one place was reserved’. This definition begs the question what the term ‘flight’ means. When can you speak about the non-operation of a flight?

The Court answered this question in two steps. First, it repeated that a flight consists of air transport performed by an airline that fixes its itinerary (Emirates Airlines, paragraph 40). Second, it recalled that the itinerary is an essential element of the flight, as the flight is operated in accordance with the carrier’s pre‐arranged planning (Sturgeon, paragraph 30).

The Court then considered (par. 28) that ‘itinerary’ means: the journey to be made by aircraft from the airport of departure to the airport of arrival according to a fixed schedule. So, for a flight to be operated the aircraft must have left in accordance with the scheduled itinerary and have reached its destination as appearing in the itinerary. If the latter is not the case, the flight cannot be considered as having been operated. A decision of the airline to cancel the flight is not necessary. For a flight to be cancelled, it is sufficient that the passenger’s original flight planning has been abandoned.

This implies that the focus must be on the predicament of the individual passenger, not on the predicament of the aircraft (oops, not exactly the way many airlines tend to think). 

The Court’s decision also implies that the passengers’ flight was cancelled so they were entitled to meals and a hotel, regardless of the reason for the cancellation (Air Passenger Rights, p. 33).

The reason for the cancellation is only relevant to determine a passenger’s right to compensation (€ 250 for this short haul flight). A passenger is not entitled to compensation if the airline proves that the cancellation is caused by extraordinary circumstances (Air Passenger Rights, p. 35-37). It is now for the referring Spanish court to decide on the facts whether this was the case for the cancelled Air France flight to Vigo.

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Relationship between managers and common sense: it’s complicated

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At Amsterdam Schiphol airport, a woman and her husband check in for their flight to Athens. After going through security and some shopping they cheerfully make their way to the departure gate. Just before boarding they are suddenly stopped by a bright blue KLM uniform: ‘I’m terribly sorry but the flight is full. You cannot board.’

The couple is flabbergasted. It’s like having ordered dinner at a restaurant and seeing the waiter arriving with two empty plates, saying something like: ‘I’m terribly sorry but we just found out we have run out of food. Would you mind very much if I bring your coats?’

At Schiphol the couple is trying to get to grips with the situation when they see another bright blue uniform moving into their direction. Its voice says:

‘I have wonderful news for you.’

The couple doesn’t know what to think of this.

‘We managed to find a free seat in the business class.’

The uniform smiles brightly and looks as if she has just saved the couple’s life.

‘So, if I may ask, whom of you is going to fly?’

Did we hear this correctly? Let’s listen again: 
‘I have wonderful news for you. The chef had another look in the kitchen and found food for one person. So, if I may ask, which one of you can I serve dinner tonight?’

At the airport, the bright blue uniform is starting to lose its patience.

‘I’m terribly sorry but the plane is ready to depart, so can you please make up your mind? No worries, the person who stays in Amsterdam will be all right because my manager has kindly agreed to offer you a rebooking for tomorrow and a hotel room for tonight. All free of charge.’

But the couple shows itself to be passengers of a very ungrateful nature. ‘Actually,’ they say, ‘we would like to stay in Amsterdam together and fly together to Athens tomorrow.’

The KLM uniform turns into stainless steel. ‘I’m afraid I can’t do that. KLM has been very reasonable in this matter and you really can’t ask us to do the impossible. We will rebook one of you and offer you a hotel free of charge. But if neither of you is flying tonight, you have to buy a new ticket for Athens and pay for the hotel accommodation for one person.’

That does the trick. On the first night of their holiday, the man is in Athens while his wife stays at a Schiphol hotel. The following day they are reunited at Athens airport. (Mind you that if the stainless steel threat would not have done the trick with you, you are not just an ungrateful but also an impossible passenger).

Oh, and did I say that KLM paid denied boarding compensation? Without waiting for the passenger to go to court? Indeed, for one person only.

Ground staff are often blamed for an airline’s sloppiness and failures. That is usually not fair because they often just follow their ‘managers’ instructions. The type of guys many people know. Guys who often have difficulties seeing that passengers, aka human beings, are at the heart of their business. Guys who think in spreadsheets and bums on seats. And keep having trouble to imagine that two bums can be a couple and have a life.

The relationship between managers and common sense - it remains a complicated one.

* * *

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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...

A mouse, bees, and the roots of terrorrential peeism

It’s that time of the year that lawyers and judges are on holiday and nothing much seems to happen in the world of Air Passenger Rights. However, for passengers the world of flying remains full of adventures.

Mouse grounds SAS plane in Stockholm

At Stockholm airport, a mouse grounded an SAS Airbus 330 bound for Chicago. The little animal was seen scurrying across the cabin floor just before boarding. Despite an extensive search and numerous mousetraps the creature managed to escape capital punishment. The airline cancelled the flight. It said that as well as unsettling passengers the mouse posed a safety risk as it could chew the aircraft's cables.

Passengers had to be rebooked and suffered delays of over five hours, enough to claim Sturgeon compensation. The interesting point is whether the airline can argue that the mouse created an ‘extraordinary circumstance’. You may want to find the answer with the guidance in Air Passenger Rights, p. 50-51.

Bees on Russian plane panic passengers

Can you take living animals on board (Air Passenger Rights, p. 64)? In Russia, an official at Blagoveshchensk airport took a hive of bees on to a plane. They were stashed in a box and put in a coat locker in business class. The bees were apparently not happy with this arrangement and midflight they decided to break out and make their way through the cabin, frightening and shocking passengers. After a while, the crew managed to tape up the cloakroom doors to stop the bees flying out. The other bees were merciless killed by frightened passengers (apologies to the bees for any inconvenience caused).

Carrying insects aboard a plane is banned under Russian (and other national) aviation rules. In this case, the airport’s deputy director had carried the bees on the plane by simply skipping security checks. It was not the first time security failed at that airport. In June 2011, a woman was caught after managing to board a plane without a ticket, documents or any luggage. So if you are fed up with all the airport security measures, you know which airport to fly from.

Depardieu caught urinating on jet

French celebrity Gérard Depardieu, 62 was caught peeing in a CityJet plane (a witness said she saw a bottle of Perrier in the actor’s other hand). The actor was refused permission to use the lavatory as the plane prepared for take-off. Because of Depardieu going peenuts the jet had to taxi back to the gate and the dépar(dieu) was delayed for a further two hours.

One may wonder what caused the actor to behave in such an incontinental way. My guess: the liquid rules. Before going through security, Depardieu realised he had a full bottle of Perrier water in his hand luggage. And rather than throwing it away he decided to down it. Such irresponsible behaviour is encouraged by the mismatch between the heavy regulation of liquids in hand luggage and the complete lack of regulation of liquids carried inside the human body (Air Passenger Rights, p. 79).

This mismatch leads to regrettable scenes of passengers no longer able to control their jet stream. I contacted the airline authorities and they promised a robust response. They intend to introduce a new generation of body scanners at the departure gates to measure the human body’s liquid levels. As one spokesman said: ’It is the only way to stamp out this form of terrorrential peeism root and branch. And to boost the business of body scanners, of course.’

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The Assumption of Mary, trainee pilots, and Richard Branson

On 15 August, I checked in at Munich airport for my flight to London. In Southern Germany, 15 August is a public holiday to celebrate the Feast of the Assumption of Mary. At the airports, passengers are kindly invited to attend a special religious service.

I felt tempted but I had to catch my flight so I gave the mass a miss. Also because I was not too optimistic about convincing easyJet that attending the service was an extraordinary circumstance that entitled me to a refund (Air Passenger Rights, p. 97). Slightly regretting this missed opportunity to be uplifted by the service, I found consolation in the fact that my easyJet flight also provided for an assumption, albeit temporary and to a much lower level than the Blessed Virgin Mary.

The plane was almost fully booked but after the usual easyJet passengers fight I managed to end up between the aisle and a free seat. The flight was quiet, both inside and outside the cabin, and also the approach to Stansted went smoothly - although seemingly a bit faster than normal.

When we were about to touch down the engines of the Airbus 319 suddenly made a roaring sound and were spooled up to full throttle. In moments we were slowly but steadily gaining height again. We had experienced a very elegant go-around (on 15 August also known as a Mary-go-around).

The senior cabin crewmember (easyJet still seems to have a hard time finding pursers) announced that the go-around was a completely normal procedure. Indeed, it’s a routine manoeuvre, and can for example be triggered by a non-cleared runway (but hey, this was Stansted, not Heathrow) or a dangerous weather condition (but hey, the weather was nice and quiet).

While the aircraft made a right turn back to the airport, the captain came on the intercom. The sound of his voice suggested he once must have pondered between becoming a pilot or a newsreader. Without apologising, he revealed that the first officer was only a trainee pilot and did not have that much experience with landing procedures. ‘When I saw that the approach was not done with the correct speed, I decided to intervene and to make a go-around as a fail-safe measure.’

The second landing went much better. Indeed, practice makes perfect, particularly when you practice on a plane with 150 passengers.

So what about these trainee pilots? On its website easyJet writes: ‘For those wishing to start an airline career as a pilot, we are able to offer a sponsorship scheme that will enable up to 24 applicants a year to achieve their dream. This exciting commitment by easyJet will enable a select few to benefit from a highly extensive training process. Of course, as we are expanding at such a high rate, our requirements may change.’

Erm, yes. Of course. The requirements for trainee pilots may change. Watch this space. Soon you may only need to have good newsreader skills.

I suddenly felt an urge to attend a service for the Feast of the Assumption of the Virgin Mary. But at Stansted no such service was offered. It was only then I remembered that the only Virgin to be worshipped in this country is Sir Richard Branson.

~~~~~~~~~

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New preliminary question on Sturgeon and Montreal, Part II

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In my previous post I discussed whether Sturgeon violates the Montreal Convention’s exclusivity. Another question is whether Sturgeon violates the Convention’s requirement that damages for delay must be awarded solely on a compensatory basis. A number of national courts have asked the European Court whether Sturgeon compensates real damage or rather requires airlines to pay more than the damage passengers actually suffer.

The European Court’s answer to these pending questions can be twofold. The strongest distinction between Montreal and the Regulation would be to hold that Sturgeon compensation for identical damage is independent of the Montreal Convention. It is therefore not at all affected by Montreal and can even be non-compensatory. One could draw this conclusion from IATA, where the Court held that standardised and immediate compensatory measures are not among those whose institution is regulated by the Convention.

However, also a less bold answer is possible. Throughout its case law the Court has emphasised that compensation for delay is compensatory. More precisely, in Sturgeon the Court held that Article 7 provides for compensation for ‘loss of time’. Loss of time is identical yet real damage for all passengers as they all suffer the same delay. Loss of time may have different consequences for each passenger. These consequences constitute individual damage, which is governed by Montreal.

The identical damage is compensated in a standardised manner. The standard is partly related to the length of the flight and partly to the length of the delay (Air Passenger Rights, p. 52-53). Airlines argue that compensation is therefore not related to the actual damage and that the regime of Article 7 is therefore non-compensatory. Indeed, a delay of 20 hours provides for the same compensation as a delay of 4 hours.

It is unlikely that the European Court will be convinced by this argument. It is more likely that it will emphasise the Regulation’s aim is to provide quick redress and that this justifies a standardised form of compensation.

However, the airlines are correct in that a more subtle system of standardised compensation is conceivable. In the forthcoming review of the Regulation the European Commission may consider proposing an amount of compensation for each hour delay and with no discount for long delays. This would even more clearly show that Sturgeon compensation for loss of time is compensatory and therefore in line with Montreal.