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.

New preliminary question on Sturgeon and Montreal, Part I

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In Sturgeon, the European Court decided on the basis of the principle of equal treatment that passengers of a delayed flight also have a right to compensation. Airlines argue that this decision violates the Montreal Convention. Preliminary questions on this issue have been asked by the English High Court (Case C-629/10, TUI a.o. v. Civil Aviation Authority), and the German Amtsgericht Cologne (Case C-581/10, Nelson v. Lufthansa).

Last week, it was announced that yet another lower German court, the Amtsgericht Geldern, has asked the European Court the same question (Case C-255/11, Büsch and Siever v. Ryanair).

The fact that two German lower courts ask this question is remarkable because the highest German civil court, the Bundesgerichtshof (BGH), was the first major national court to acknowledge the validity of Sturgeon. It did so only three weeks after the European decision was handed down (BGH 10 December 2009, Xa ZR 61/09). A few months later, the BGH succinctly considered with respect to the compatibility of Sturgeon with Montreal: ‘… that the European Court would have overlooked Art. 29 Montreal Convention cannot be accepted.’ (BGH 18 February 2010, Xa ZR 95/06, para. 20: ‘... dass er Art. 29 MÜ übersehen hätte, kann nicht angenommen werden.’)

Art. 29 Montreal Convention provides that any action for damages against airlines for delay ‘… can only be brought subject to the conditions and such limits of liability as are set out in this Convention’. This triggers the question: does Sturgeon respect the Convention’s exclusivity?

The answer is most probably yes. Already in IATA (2006), the European Court drew a distinction between individual damage and identical damage. It held that Montreal governs the first category, and the Regulation the second. In fact, the Regulation intervenes at an earlier stage than the Convention. The Court also held that the Convention did not prevent other forms of intervention to redress, in a standardised and immediate manner, the damage that is constituted by the inconvenience that delay in the carriage of passengers by air causes. This redress can take the form of care (hotel, meals) or monetary compensation for loss of time.

In other words, Sturgeon deals with damage that is identical for all passengers. Therefore, it is highly likely that the European Court will hold, as it did in IATA, that Sturgeon does not violate the exclusivity of the Montreal Convention.

Next blog post: is Sturgeon compensation compensatory or not?

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What passengers think of airlines

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The Anglo-American poet W.H. Auden once said: “Thou shalt not sit with statisticians nor commit a social science”. Auden may have been right in many respects but I would say we could make an exception for consumer surveys.

In November 2010, German consumer organisations conducted a passenger survey on how airlines dealt with Air Passenger Rights. The full survey (in German) can be found here.

The results did not come as a surprise (and also confirmed that social sciences often confirm what we already know but formulate it in a more sophisticated way). 

The survey showed the lack of compliance with the Regulation by many if not most airlines. The most striking conclusions were:

• a large majority of airlines ignores the obligation to provide care and compensation;
• only 25% of the airlines offers compensation, mostly only after a passenger’s request;
• more than 50% of the passengers was not informed of their rights;
• most airlines respond very slowly to requests;
• 22% of passengers did not receive an answer from the airline;
• only 3% of the cases ran smoothly for passengers.

The outcome of the survey suggests that many airlines boycott European legislation or at least do not take it seriously. This goes for many if not most obligations airlines have under the Regulation.

Considering the consistency of passengers’ experiences, it is likely that this is not a matter of poor management but part of the airlines’ corporate policies. Policies directed from the boardrooms. Designed to satisfy shareholders, inevitably to the detriment of air passengers rights.

On a positive note, the survey also brings to light that there must be one or two airlines that take passengers rights seriously. It would be very useful if new Air Passenger Rights surveys would no longer look at the airline industry as a whole but at how airlines perform individually. This would be of great help to passengers when choosing which airline to fly.

Thinking about this, I’m actually quite happy to sit with statisticians and commit a social science.

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