Suggestions for a Revision of Reg 261/2004 Michael Wukoschitz, Austria 1) Delay 1.1) Definition: While Reg 181/2010 on passenger rights in bus and coach transport defines delay as the difference between the time, the regular service was scheduled to depart in the cordence with a publish time table and the time of its actual departure, and Reg 1371/2007 on rail passengers rights and obligation defines the same term as the time difference between the time the passenger was scheduled to arrive in accordance with the published timetable and the time of his or her actual or expected arrival there is no definition of the term delay in Reg 161/2004, whereas cancelation is defined as the non-operation of a flight which was previously planed and on which at least on place was reserved. From Article 6 it is, however, clear that delay in the meaning of Reg 261/2004 (only) means delayed departure. Therefore the rights to assistance and care pursuant to Articles 8 and 9 relate to the time until the delayed flight actually departs. Given the different definitions of delay in other regulations, it would be recommendable to include a clear definition of delay to a new air passenger rights regulation. 1.2) Compensation: The question arose, whether an extensive delay at some point could turn into a cancellation. In its Sturgeon-judgement 1 the ECJ has answered this question to the negative and held that a flight which is delayed, irrespective of the duration of the delay, even if it is long, cannot be regarded as cancelled where there is a departure in accordance with the original planning. 1 ECJ 19.11.2009 C-402/07 Sturgeon and C-432/07 - Böck
However, the ECJ established an analogy in the legal consequences with regard to compensation by referring to Recital 15 of the preamble where the notion of long delay is mentioned in the context of extraordinary circumstances. The ECJ concluded that the legislature also linked that notion to the right to compensation and underpinned this approach by referring to Recital 2, pursuant to which the regulation seeks to ensure a high level of protection for air passengers. It is hard not to regard this approach being contradictory to the IATA-decision of 2006 2 where the ECJ has pointed out that the principle of legal certainty is a fundamental principle of Community law which requires, in particular, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly. In this context the ECJ also explicitly stated that, while the preamble to a Community measure may explain the latter s content, it cannot be relied upon as a ground for derogating from the actual provisions of the measure in question. In the light of the Sturgeon-decision, the relation of passenger rights as granted in Reg. 261/2004 and those granted by the Montreal Convention requires re-evaluation with regard to claims arising from delay. The Montreal Convention in its Article 19 refers to a delay in the carriage in general and thus follows a different (broader) concept of delay, not limited to a delay in departure. In the IATA-decision, the ECJ referred to the fact that any delay in the carriage of passengers may cause two different types of damages: damage that is almost identical for every passenger and redress for which may take the form of standardised and immediate assistance or care for everybody concerned and individual damage, redress for which requires a case-by-case assessment of the extent of the damage caused and can only be subject of compensation granted subsequently on an individual basis.
According to the ECJ, Articles 19, 22 and 29 of the Montreal Convention merely govern the latter kind of damage but do not exclude the other. On the other hand, the standardised and immediate assistance and care measures pursuant to regulation 261/2004 do not themselves prevent the passenger concerend from being able to bring in addition actions to redress their individual damages under the conditions of the Montreal Convention. However, the Sturgeon decision changed this situation as it extended the right for compensation to delayed passengers if only they reached their final destination no earlier than 3 hours after the scheduled arrival time. Though the compensation laid down in Article 7 of regulation 261/2004 is standardised in the meaning that only fixed amounts are granted depending on the category of flight distance, the damage it covers is highly individual. It is therefore understandable that there are doubts whether Articles 5 and 7 of Reg 261/2004 in their new interpretation are still compatible with the Montreal Convention. A new regulation will have to carefully avoid any conflicts between the two systems of passenger rights. On the other hand the legislator has to bear in mind that the reason for the extention of the compensation pursuant to Article 7 of Reg 261/2004 to certain kinds of delays is based on the principal of equal treatment. It thus would be problematic to go back behind the Sturgeon decision and provide for compensation only with regard to passengers of cancelled flights but not with regard to those of delayed flights. A solution could be to provide for such compensation in cases of delay only if the delay is of a kind that is indeed equal to the non-operation of a flight. A delayed arrival at the final destination of only three hours can hardly be generally regarded a detriment equivalent to the consequences of a cancellation. 2 ECJ 10.01.2006 C-344/04 - IATA
Following the system of the regulation and its standardised graduated categories, one could think of tying compensation with a multiple of the periods of delay as laid down in Article 6 (eg: three times these limits). 1.3) Care and assistance: With regard to the right to care (which doesn t depend on any fault on behalf of the operating carrier), it seems overprotecting that passengers lege non distinguente - can claim for meals, refreshments and hotel accommodation even if they live close to the airport of departure. It seems more reasonable to apply a differentiating approach therefore. In general it should be sufficient to grant a claim for meals and refreshments only for the waiting time at the airport, where immediate care is an obvious need of every passenger concerned. Any other meals or refreshments are rather part of the individual damage, redress for which requires a case-by-case assessment. Such limitation of the obligation to provide meals and refreshments could be regarded a corollary of the two categories of damage as established in the IATA-decision. With regard to hotel accommodation it could be considered to limit this right to passengers stranded abroad (meaning in a country different from the country of their domicile); at least this right could be limited to passengers whose domicile is situated beyond a certain distance from the airport. If the European legislator should be reluctant to introduce a general limitation of care measures as suggested above, it might at least be considered to provide for such limitations in cases of extraordinary circumstances. 2) Missed Connecting Flights 2.1) Compensation: To miss a connecting flight can be the consequence all three kinds of flight disruptions: delay, cancelation and denied boarding.
However, the damage that results from missing of a connection flight is certainly an individual damage, redress for which requires a case-buy-case assessment an can only be subject of compensation granded subsequently on an individual basis. At the moment, the regulation does not address the issue at all 3. On national level, the German Supreme Court (BGH) has held, that the missing of a conecting flight cannot be regarded itself as a case of denied boarding, even if the feeder flight was operated by the same carrier. A carrier can only deny boarding to someone who is present at boarding time. Passengers who miss the boarding time due to delay, cancellation of or denied boarding on the feeder flight are unable to present themselves on time for boarding for the connecting flight and thus cannot be subject of a denial of boarding. If the missing of the connecting flight is caused by delay of the feeder flight, the passenger may take redress for the damage pursuant to Article 19 of the Montreal Convention, the liability limits of which then apply. Cancellations and denied boarding as other potential causes for a missed connecting fight which by themselves entitle the passenger to compensation, in most cases will constitute breach of contract and thus also entitle the passenger to redress under national contract law. Such redress usually will only be denied if the carrier can proof that it was not at fault, for instance in cases of force majeure. Though it may be convenient for a passenger if he could claim (additional) compensation for a missed connecting flight under the regulation, there is no need for such standardised compensation. When the missing of the connecting flight is caused by delay of the feeder flight, such compensation would be contrary to the provisions of the Montreal Convention. I therefore recommend not to include the missing of a connecting flight into a new regulation as a cause for compensation. 3 Steer Davies Gleave Report
2.2) Care and assistance: With regard to care and assistance, however, the situation will often be comparable to a long delay or cancellation of a flight 4 : passengers for some time will be stuck at the transit airport waiting for an alternative connection. It therefore seems reasonable and in the light of the principle of equal treatment even inevitable to provide for standardised and immediate assistance and care for everybody concerned if the waiting time at the transit airport exceeds certain limits. The responsible party to provide care and assistance should be the operating carrier of the feeder flight which was delayed or cancelled or on which the passenger was denied boarding. 4 see also Communication from the Commission to the European Parliament and the Council of April 4, 2011, COM (2011) 174 final