Compensation of passengers for delayed flights – AG confirms Sturgeon case

As a firm blow to airlines trying to dodge the Sturgeon decision, AG Bot’s opinion in the joined cases C-581/10 and C-629/10 has already been called a ‘Luxembourgian punch on the nose’ and ‘a kick in the Bot’. In his opinion, AG Bot essentially advises the Court to confirm its earlier Sturgeon decision (Cases C-402/07 and C-432/07). The cases concern the interpretation of Articles 5, 6 and 7 of Regulation 261/2004 on air passengers compensation. Although frequently named the ‘Denied-boarding’ Regulation, the Court ruled in Sturgeon that passengers whose flights are delayed may also rely on the right to compensation laid down in Article 7 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours (paragraph 61 of Sturgeon). Not surprisingly, airlines have since argued that the ruling in Sturgeon is contrary to the principles of legal certainty and proportionality, and, moreover, that it is inconsistent with both the 2006 IATA ruling and the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (ratified by the EC).

To be fair, the wording of the Regulation does not directly provide for the compensation right to passengers whose flights are delayed. In that sense, as indeed the airlines argue, the Court has taken a bold step in Sturgeon and has maybe, in interpreting the Regulation beyond its literal wording, overstepped its powers. AG Bot, however, doesn’t see any reason for the Court to deviate from its approach in Sturgeon and states that nothing new which might call into question the interpretation that the Court gave in Sturgeon has been presented (point 39). The AG notes that the disputes in these cases show that air carriers refuse to apply that judgment and to compensate passengers finding themselves in such situations (i.e. situations of delay instead of cancellation or denied-boarding). The AG takes the view that Articles 5, 6 and 7 of the Regulation (as interpreted in Sturgeon) are compatible with the IATA ruling, with the Montreal Convention, with the principle of proportionality and with the principle of legal certainty (point 29-49 and 67).

Meanwhile, the Attorney General (AG) at the Dutch Hoge Raad (Supreme Court of the Netherlands) has delivered his opinion (in Dutch) in several cases pending before the Supreme Court concerning compensation under Art. 7 for delayed flights. The opinion was delivered exactly four days before AG Bot’s opinion but follows the same pattern. The AG rejected all of the airlines’ arguments against the Sturgeon ruling..

It is interesting to note that the financial hardship and the impact that the airlines argue the Regulation would impose has been shown to be perhaps less catastrophic than claimed. AG Bot observes (point 60) that according to the figures in a Commission staff working paper, less than 1.2% of flights potentially fall under the scope of the Regulation’s provisions on delayed flights. Moreover, less than 0.5% of delayed flights are delayed by three hours or more and the proportion of flights for which delay confers entitlement to the compensation provided for in Article 7 is less than 0.15%.

However likely it seems that the judgment of the Court will mark an unfortunate day for airlines, it remains to be seen what the Court will do. AG Bot fully confirms the Sturgeon ruling, which is good news for air passengers, since despite the Sturgeon case, national courts seemed hesitant to apply Article 7 and grant compensation to passengers of delayed flights. The right to compensation under Article 7 of the Regulation is the subject of several other cases currently pending at the Court (C-11/11; C-436/11 and C-437/11). We will keep you posted on new developments.

4 comments

  1. WE

    Interesting information. I am currently trying to get compensation for a (heavily) delayed flight; whether or not I will receive it will depend on the Court’s final ruling in this case. Can anybody tell be if this has already been scheduled, and if so, when this ruling will be published?

    Thanks in advance.

  2. Alan White

    I experienced a delay of 28 hours on a flight from Spain to the UK and I am trying to claim compensation from the Airline. The Spanish Air Authority have ruled the Airline should pay compensation. The Airline say that all claims are on a Stay until the appeal judgement. Is this correct. The Airline responds but does not adress the points that I have raised in my letters. I am about to take the Airline to small claims court.

  3. IvarB

    Airlines and flight are usually precise and work as effective as possible against time and delays, however the striking truth about their responsibility regarding passengers when flights get delayed is nothing less than shocking. It is incredible that after all the environmental impact we have been experiencing as travellers regarding Island volcano , rough winters and lately the tropical storm in the US. Despite all these realities airlines can easily turn the blame on the system , especially considering the law system which have considerable loop-holes affecting firstly the consumers.

    Furthermore the compensation the airlines are required to give (after a 5 houre flight) taking example in the scandinavian carrier SAS is ridiculous with astronomical high prices on Norwegian airports the (dinner compensation) will buy you something equivalent to a small snack which not even qualify as a small breakfast. It is nevertheless a very important issue you are addressing. Thank you

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