Passengers’ rights regulation in danger
Publication date: 06 July 2009
Does the EU regulation giving passengers certain rights in cases of overbooking, delay or cancellation of their flight violate the principle of equal treatment, a fundamental principle of EU law? Advocate- General Eleanor Sharpston, of the EU Court of Justice, maintains that it does. If the court endorses her opinion, the regulation could be invalidated.
The advocate-general submitted an opinion, on 2 July, on two joined cases seeking clarification of the concepts of ‘delay’ and ‘cancellation’ of a flight contained in Regulation 261/2004 (Cases C-402/07 and C-432/07). The distinction is important since cancellation of a flight entitles the passenger to financial compensation (from €250 to €600 per passenger), which is not the case for a delay.
Since the regulation does not define the term ‘delay’, airlines interpret the concept in its widest sense. Passengers have seen their flights ‘delayed’ for up to 24 or 48 hours, for which they receive no financial compensation.
In these two cases – between a German family and Condor and an Austrian family and Air France – the Polish government submitted written observations raising the question of possible violation of the principle of equal treatment by the EU regulation. The advocate-general takes the same view. Roughly, she points out that passengers who experience the inconveniences of a delay should not be treated differently from those subjected to the inconveniences of a cancellation, because the injury suffered by the passenger is not necessarily greater in the case of cancellation than in the case of delay.
The regulation, argues the advocate-general, can even result in cases where passengers put through the greatest inconvenience are deprived of compensation while those experiencing less serious inconveniences are compensated. The inconveniences of a 12-hour delay (without compensation) are much greater than those for a flight that has been cancelled but with the possibility of taking an alternative flight immediately (with compensation), for example.
The advocate-general does not give an opinion on the concepts of ‘delay’ and ‘cancellation’, but suggests that the court re-open the oral proceedings in both cases – a possibility allowed under Court of Justice rules of procedure – to invite the European Commission, the European Parliament and the member states to submit comments on whether the provisions of Regulation 261/2004 are in breach of the principle of equal treatment. If the court accepts the advocate-general’s opinion – which should be decided fairly quickly – the EU institutions and the member states will receive a letter asking them to give their views.
“This is quite a rare case,” a European source told Europolitics. It could lead to invalidation of the EU regulation.
NO LEGAL CERTAINTY
What about the distinction between ‘delay’ and ‘cancellation’ put before the court? The advocate-general discusses the two concepts, in case the court decides not to re-open the proceedings, but without giving an answer and pursuing her accusations against the regulation. Sharpston mentions a number of factors that may constitute an indication of cancellation – a change of carrier, obligation to go through luggage checkin a second time, issuing of new boarding passes – but concludes that none of these factors is decisive in itself and that it is for the national courts to rule on the particulars of each case. This can lead to problems of legal certainty. The same holds for determining when a delay becomes excessive and is transformed into cancellation: it is impossible to identify precisely, concludes the advocate-general, and the national courts must rule, with the problems of legal uncertainty that this implies.