Sturgeon again, Grand Chamber rules on compensation for delayed flights in Folkerts

Here’s another Court judgment on the infamous (or clarifying, depending on your perspective) Court ruling in Sturgeon. Last November, we reported on the ruling in the joined cases Nelson (C-581/10) and TUI Travel (C-629/10), in which the Court confirmed the judgment in Sturgeon. The Court held that Airline Passengers have the right to the fixed monetary compensation under Article 7(1) of Regulation 261/2004 (the Regulation) in case of a delay of three hours or more. This time, it’s about the question at which stage of the carriage the delay must occur. For the purpose of entitlement to compensation under Article 7(1), is the length of the delay in reaching the final destination alone determinant? Or does entitlement to compensation for such a delay additionally requires that the conditions set out in Article 6(1) of the regulation be met, that is to say, that the departure of the flight in question was already delayed beyond the limits set out in Article 6(1)? If not, for the purpose of determining whether there was a delay, in the case of a flight consisting of several stages, should reference be made to the individual stages or to the distance to the final destination?

Article 6(1) of the Regulation provides that, in case of delay, airlines have to offer the passenger assistance after a certain amount of time, depending on the length of the flight. In case of a flight over 3.500 km, assistance (meals, refreshments, telephone calls, emails etc.) must be taken care of by the airlines when the flight is delayed for 4 hours or more. Mr and Mrs Folkerts (claimants) had booked a return flight from Bremen (Germany) via Paris (France) and Sao Paulo (Brazil) to Asuncion (Paraguay). The flight from Bremen to Paris was scheduled to depart on 16 May 2006 at 6.30 a.m. and the scheduled arrival time at Asuncion was 11.30 p.m. the same day. In Bremen, the claimants received boarding passes for the entire trip. The departure at Bremen was delayed until shortly before 9.00 a.m. (delay on departure about 2,5 hours), and the couple arrived in Paris when their connecting flight to Sao Paulo had already left. They were rebooked on another flight, but as a result they also missed their connecting flight to Asuncion. In the end, they arrived the next day 17 May 2006 at 10.30 a.m. (total delay on arrival about 11 hours). You probably see where this is going. The claimants departed from Bremen about 2,5 hours after the scheduled departure time. Under Article 6(1), in case of a flight over 3.500 km, the airlines must provide assistance only when the flight is delayed 4 hours or more. Therefore, the question arose whether compensation under the Sturgeon ruling only requires the delay of three hours or more at arrival, or does it also require a delay at departure according to the ladder in Article 6?

In this decision, the Court first summarises its Sturgeon ruling. In Sturgeon, the Court held that when passengers’ flights are subject to long delay, that is delay equal to or in excess of three hours, passengers of such flights are entitled to compensation on the basis of Article 7 of the Regulation, like those passengers whose original flights have been cancelled, given that they suffer an irreversible loss of time and, hence, a comparable inconvenience (par. 60 in Sturgeon). Since that inconvenience materialises, with regard to delayed flights, on arrival at the final destination, the Court has held that a delay must be assessed, for the purposes of the compensation provided for in Article 7, in relation to the scheduled arrival time at that destination (par. 61 of Sturgeon). The Court then goes on to address the case at hand (Folkerts) and holds:

35     It follows that, in the case of directly connecting flights, it is only the delay beyond the scheduled time of arrival at the final destination, understood as the destination of the last flight taken by the passenger concerned, which is relevant for the purposes of the fixed compensation under Article 7 of Regulation No 261/2004.

36     In the third place, Article 6 of Regulation No 261/2004, which refers to the delay to a flight beyond its scheduled time of departure, seeks, according to its own terms, only to establish the conditions giving entitlement to the measures of assistance and care provided for in Articles 8 and 9 of that regulation respectively.

37     If follows that the fixed compensation to which a passenger is entitled under Article 7 of Regulation No 261/2004, when his flight reaches the final destination three hours or more after the scheduled arrival time, is not dependent on the conditions laid down in Article 6 of that regulation being met.

38      Accordingly, the fact that a flight such as that at issue in the main proceedings has not been delayed, as regards the scheduled departure time, beyond the limits set out in Article 6 of Regulation No 261/2004, cannot affect the obligation on air carriers to compensate the passengers of such a flight, provided that the arrival of that flight at the final destination has been delayed by three hours or more.

39      The opposite approach would constitute an unjustified difference in treatment, inasmuch as it would effectively treat passengers of flights arriving at their final destination three hours or more after the scheduled arrival time differently depending on whether their flights were delayed beyond the scheduled departure time by more than the limits set out in Article 6 of Regulation No 261/2004, even though their inconvenience linked to an irreversible loss of time is identical.

That’s clear. The relevant delay for the purpose of Sturgeon-type compensation is the delay beyond the scheduled time of arrival at the final destination (the last flight). The Court stresses that the financial consequences for airlines are not disproportionate to the aim of ensuring a high level of consumer protection in the EU (par. 40-42). Also, under certain ‘extraordinary’ circumstances no compensation is due and air carriers are always themselves entitled to seek compensation from whoever caused the delay (par. 44). In an apparent bid to deliver the final blow the Court even states:

46      Lastly, in any event, the case-law shows that the importance of the objective of consumer protection, which therefore includes the protection of air passengers, may justify even substantial negative economic consequences for certain economic operators (Nelson and Others, paragraph 81, and case-law cited).

There will certainly be new cases on Sturgeon, its application still being a hassle to many. Trying to see things in a positive light one might argue that every successive confirmation of Sturgeon by the Court adds cumulatively to the already strong case that airlines do not have a choice but to comply. Will they? So far, airlines have shown they are not particularly keen on Sturgeon-compensation for passengers. Also, there is a fine line between legitimately raising serious legal objections, and an unwillingness to compensate and creatively coming up with new lines of defense (assuming – of course – that the original objections were legitimate in the first place, an unsafe assumption given the Nelson ruling). Will this ruling be the last, utter, final, incontestable confirmation of Sturgeon?