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.