NEW CASES IN THE COURT OF JUSTICE OF THE EUROPEAN UNION ON AIR PASSENGER RIGHTS

NEW CASES IN THE COURT OF JUSTICE OF THE EUROPEAN UNION ON AIR PASSENGER RIGHTS Zoltán Angyal Dr. habil., PhD, associate professor University of Miskolc, Department of European Law and International Private Law 1. INTRODUCTION This paper takes a closer look at the judgements of the Court of Justice of the European Union (hereinafter referred to as the Court ) in Case Siewert v Condor 1 and in Case Germanwings v Henning. 2 In these cases the Court was requested to define the scope of the obligation to provide care for passengers, imosed on air carriers by the Regulation (EC) No 261/2004 (hereinafter referred to as the Regulation ). 3 The Regulation depending on the circumstances of the travel disruption, requires air carriers to: provide passengers with assistance, such as meals, refreshments, telephone calls and hotel accommodation; offer rerouting and refunds; pay a flat-rate compensation of up to 600 per passenger, depending on the flight distance; and proactively inform passengers about their rights. 2. EXTRAORDINARY CIRCUMSTANCES IN CASE SIEWERT V CONDOR 2.1. The facts in the main proceedings and the questions referred for a preliminary ruling Sandy Siewert, Emma Siewert and Nele Siewert (hereinafter referred to as the applicants ) in the case before the Member State court booked a flight from Antalya (Turkey) to Frankfurt am Main with the Condor Flugdienst GmbH (hereinafter referred to as Condor ). The flight was carried out on 3 October 2011 with a delay in arrival of 6 hours and 30 minutes. The applicants have requested for compensation on the basis of the Regulation and the case-law of the Court of Justice. Condor has submitted that the delay occurred because the aircraft which was due to operate the flight at issue had been damaged the previous evening at Stuttgart Airport. A set of mobile boarding stairs had collided with the aircraft, causing structural damage to a wing and, as a consequence, the aircraft had to be replaced. Therefore, Condor has claimed that these are extraordinary circumstances within the meaning of Article 5(3) of Regulation, and that, accordingly, it is not obliged to pay compensation. Article 5(3) of Regulation provides that an operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. The Amtsgericht Rüsselsheim (hereinafter referred to as the referring court ) was uncertain whether extraordinary circumstances exempting the air carrier concerned from its obligation to pay compensation pursuant to Article 5(3) and Article 7 4 of Regulation must relate directly to the flight at issue or whether such circumstances may also stem from events related to 1 Case C-394/14. Siewert v Condor 2 Case C-452/13. Germanwings v Henning 3 Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1) DOI: 10.26649/musci.2015.080

earlier journeys undertaken by the aircraft operating that flight. The referring court has referred more questions to the Court for a preliminary ruling. One of these questions was that are adverse actions by third parties acting on their own responsibility and to whom certain tasks that constitute part of the operation of an air carrier have been entrusted to be deemed to be extraordinary circumstances within the meaning of Article 5(3) of Regulation? And if the answer is in the affirmative, does the assessment of the situation depend on who (airline, airport operator, etc.) entrusted the task(s) to the third party? 2.2. The answer of the Court It should be emphasized that the Court has decided to rule by reasoned order in this case. 5 According to the Court by the questions mentioned above the referring court seeks, in essence, to ascertain whether Article 5(3) of Regulation must be interpreted as meaning that an event such as the collision of an airport s set of mobile boarding stairs with an aircraft must be categorised as extraordinary circumstances exempting the air carrier from its obligation to pay passengers compensation in the event of a long delay to a flight operated by the aircraft in question. According the practice of interpretation of the Court the EU legislature has laid down the obligations of air carriers in the event of cancellation or long delay of flights, that is, a delay equal to or in excess of three hours. 6 Nevertheless an air carrier is to be exempted from its obligation to pay passengers compensation under of Regulation if the carrier can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances which are beyond the air carrier s actual control. 7 This exception is interpreted strictly by the Court because it constitutes a derogation from the principle that passengers have the right to compensation. 8 The Court has already found that not all extraordinary circumstances confer exemption and, in addition, the onus is on the air carrier seeking to rely on them to establish that they could not, on any view, have been avoided by measures appropriate to the situation. In other words, a measures which, at the time those extraordinary circumstances arise, meet, inter alia, conditions which are technically and economically viable for the air carrier concerned. 9 As regards technical problems with an aircraft, the Court has already held 10 that, although such technical problems may be categorised as extraordinary circumstances, the fact remains that the circumstances surrounding such an event can be characterised as extraordinary within the meaning of Regulation only if they relate to an event which, like those listed in recital 14 of that regulation, 11 is not inherent in the normal exercise of the 4 Article 7 of Regulation provides that Where reference is made to this Article, passengers shall receive compensation amounting to: (a) EUR 250 for all flights of 1500 kilometres or less; (b) EUR 400 for all intra-community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres; (c) EUR 600 for all flights not falling under (a) or (b). 5 Under Article 99 of the Rules of Procedure of the Court of Justice, where the reply to a question referred for a preliminary ruling may be clearly deduced from existing case-law or where the answer admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order. 6 See, to that effect, judgments in Nelson and Others, C-581/10 and C-629/10, EU:C:2012:657, paragraph 39, and McDonagh, C-12/11, EU:C:2013:43, paragraph 37 7 See judgment in McDonagh, EU:C:2013:43, paragraph 38 and the case-law cited 8 See judgment in Wallentin-Hermann, C-549/07, EU:C:2008:771, paragraph 20 9 See judgment in Eglītis and Ratnieks, C-294/10, EU:C:2011:303, paragraph 25 10 See judgment in Wallentin-Hermann, EU:C:2008:771, paragraph 23 11 Under recital 14, as under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have

activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin. As regards a technical problem resulting from an airport s set of mobile boarding stairs colliding with an aircraft, the Court has pointed out that such mobile stairs or gangways are indispensable to air passenger transport, enabling passengers to enter or leave the aircraft, and, accordingly, air carriers are regularly faced with situations arising from their use. Therefore, according to the Court a collision between an aircraft and any such set of mobile boarding stairs must be regarded as an event inherent in the normal exercise of the activity of the air carrier. 12 Furthermore, the Condor has not demonstrated before the referring court that the damage suffered by the aircraft which was due to operate the flight at issue was caused by an act outside the category of normal airport services 13 and would thus, applying the case-law of the Court. In view of these arguments the Court has answered to the questions of the referring court that an airport s set of mobile boarding stairs collides with an aircraft cannot be categorised as extraordinary circumstances exempting the air carrier from its obligation to pay the passengers compensation in the event of a long delay to a flight operated by that aircraft. 3. CONCEPT OF ARRIVAL TIME IN CASE GERMANWINGS V HENNING 3.1. The facts in the main proceedings and the question referred for a preliminary ruling Ronny Henning purchased an aeroplane ticket from Germanwings GmbH (hereinafter referred to as Germanwings ). in order to go from Salzburg to Cologne/Bonn. That ticket specified a take-off from Salzburg airport at 13.30 on 11 May 2012 and an arrival at Cologne/Bonn airport at 14.40 on the same day. The flight distance between those two airports is, according to the great circle route method, less than 1 500 kilometres. On 11 May 2012, Mr Henning s aircraft was delayed in taking off from Salzburg airport. On arrival, the aircraft touched down on the tarmac of the runway at Cologne/Bonn airport at 17.38. The aircraft did not, however, reach its parking position until 17.43, that is to say three hours and three minutes after the scheduled arrival time. The doors of the aircraft were opened shortly afterwards. Mr Henning took the view that the final destination was reached with a delay of more than three hours in relation to the scheduled arrival time. He thus considered that he has the right to compensation of EUR 250 on the basis of the Regulation. 14 Germanwings submitted that, as the actual arrival time was the time at which been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier. 12 See paragraph 19 of the order. 13 Such as an act of sabotage or terrorism 14 Article 6 of Regulation No 261/2004, headed Delay, states: 1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure: (a) for two hours or more in the case of flights of 1 500 kilometres or less; or (b) for three hours or more in the case of all intra-community flights of more than 1 500 kilometres and of all other flights between 1 500 and 3 500 kilometres; or (c) for four hours or more in the case of all flights not falling under (a) or (b), passengers shall be offered by the operating air carrier: (i) the assistance specified in Article 9(1)(a) and 9(2); and (ii) when the reasonably expected time of departure is at least the day after the time of departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and (iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a). 2. In any event, the assistance shall be offered within the time limits set out above with respect to each distance bracket. Article 7 of Regulation No 261/2004, headed Right to compensation, provides: 1. Where reference is made to this Article, passengers shall receive compensation amounting to: (a) EUR 250 for all flights of 1 500 kilometres or less; 2. When passengers are offered re-routing to

the plane touched down on the tarmac at Cologne/Bonn airport, the delay in relation to the scheduled arrival time was only two hours and 58 minutes, with the result that no compensation was payable. The first-instance court held that the actual arrival time to be taken into account was the time at which the first door of the aircraft was opened to enable the passengers to leave. Consequently, that court ordered Germanwings to pay compensation of EUR 250 to Mr Henning. Germinwings lodged an appeal against that judgment. Rhe Landesgericht Salzburg (hereinafter: the referring court) decided to stay the proceedings and a question to the Court of Justice for a preliminary ruling. The question was the following: What time is relevant for the term time of arrival used in Regulation: (a) the time that the aircraft lands on the runway ( touchdown ); (b) the time that the aircraft reaches its parking position and the parking brakes are engaged or the chocks have been applied ( in-block time ); (c) the time that the aircraft door is opened; (d) a time defined by the parties in the context of party autonomy? 3.2. The answer of the Court The regulation envisages two different types of flight delay. On the one hand in some cases, such as the flight delay described in Article 6 of Regulation, that regulation refers to a flight s being delayed beyond its scheduled departure time. On the other hand in other cases, such as those referred to in Articles 5 and 7 of that Regulation, the regulation refers to the situation where arrival has been delayed. It is apparent from those articles that, in order to establish the length of such a delay, it is necessary to compare the scheduled arrival time of the aircraft with the time at which it actually arrived at its destination. The basic problem is that the Regulation does not define the actual arrival time. According to the practice of the Court in such a case the need for a uniform application of EU law and the principle of equal treatment require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent interpretation throughout the European Union. 15 Therefore the concept of actual arrival time must be interpreted in such a way as to apply uniformly throughout the European Union. Firstly the Court has rejected the possibilities envisaged by the referring court, namely that according to which that concept is defined by the parties concerned on a contractual basis. In the opinion of the Court the reason for the rejection was the absence of any indication to that effect in Regulation. The Court has held that when their 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 Regulation, like those passengers whose original flights have been cancelled and whom an air carrier is not able to offer re-routing in accordance with the conditions laid down in Regulation, given that they also suffer an irreversible loss of time. 16 The judgment has reminded that during a flight, passengers remain confined in an enclosed space, under the instructions and control of the air carrier, in which, for technical and safety reasons, their possibilities of communicating with the outside world are considerably their final destination on an alternative flight pursuant to Article 8, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked (a) by two hours, in respect of all flights of 1 500 kilometres or less the operating air carrier may reduce the compensation provided for in paragraph 1 by 50%. 4.The distances given in paragraphs 1 and 2 shall be measured by the great circle route method. 15 See, to that effect, Ekro, 327/82, EU:C:1984:11, paragraph 11 16 See, to that effect, Folkerts, C-11/11, EU:C:2013:106, paragraph 32 and the case-law cited

restricted. In such circumstances, passengers are unable to carry on, without interruption, their personal, domestic, social or business activities. It is only once the flight has ended that they are able to resume their normal activities. According to the Court the concept of actual arrival time must be understood, in the context of Regulation, as corresponding to the time at which the situation mentioned above comes to an end. The Court has stated that, in principle, the situation of passengers on a flight does not change substantially when their aircraft touches down on the runway at the destination airport, when that aircraft reaches its parking position and the parking brakes are engaged or when the chocks are applied, as the passengers continue to be subject, in the enclosed space in which they are sitting, to various constraints. It follows that it is only when the passengers are permitted to leave the aircraft and the order is given to that effect to open the doors of the aircraft that the passengers may in principle resume their normal activities without being subject to those constraints. On the contrary a number of European Regulations and also certain International Air Transport Association (IATA) documents refer to the concept of actual arrival time as the time at which an aircraft reaches its parking position. Nevertheless the Court has not held a relevant factor this fact because those regulations and documents pursue objectives relating to air navigation rules and, in particular, to the allocation of slots, which are different from those of Regulation No 261/2004. Consequently, the definitions that they give cannot be regarded as relevant for the interpretation of corresponding terms in the context of Regulation. In view of these arguments the Court has answered to the question of the referring court that the concept of arrival time, which is used to determine the length of the delay to which passengers on a flight have been subject, refers to the time at which at least one of the doors of the aircraft is opened, the assumption being that, at that moment, the passengers are permitted to leave the aircraft. 4. CONCLUSIONS The Court has interpreted the notion of extraordinary circumstances several times. Among other things, this was the reason why the European Commission has made a comprehensive proposal for a regulation. On 13 March 2013, the European Commission made a proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air. 17 The proposal aims to improve enforcement by clarifying key principles and implicit passenger rights that have given rise to many disputes between airlines and passengers in the past; and by enhancing and better coordinating the enforcement policies carried out on a national level. Issues covered by the proposal are the following. - Definition of "extraordinary circumstances" - Right to compensation in case of long delays - Right to rerouting - Right to care 17 Proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, COM/2013/0130 final - 2013/0072 (COD)

- Missed connecting flight - Rescheduling - Tarmac delays - Partial ban of the "no show" policy - Right to information - Handling of individual claims and complaints - Better take into account the financial capacities of the air carriers - Ensure better enforcement of passenger rights with regard to mishandled baggage - Adapt liability limits in accordance to general price inflation The proposal clearly defines the term in line with the Court's decisions, i.e. circumstances which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. Furthermore, for further legal certainty, the proposal introduces a non-exhaustive list of circumstances to be regarded as extraordinary and of circumstances to be regarded as non-extraordinary. According to the proposal the following circumstances shall be considered as extraordinary: - natural disasters rendering impossible the safe operation of the flight; - technical problems which are not inherent in the normal operation of the aircraft, such as the identification of a defect during the flight operation concerned and which prevents the normal continuation of the operation; or a hidden manufacturing defect revealed by the manufacturer or a competent authority and which impinges on flight safety; - security risks, acts of sabotage or terrorism rendering impossible the safe operation of the flight; - life-threatening health risks or medical emergencies necessitating the interruption or deviation of the flight concerned; - air traffic management restrictions or closure of airspace or an airport; - meteorological conditions incompatible with flight safety; and - labour disputes at the operating air carrier or at essential service providers such as airports and Air Navigation Service Providers. In contrast, technical problems inherent in the normal operation of the aircraft, such as a problem identified during the routine maintenance or during the pre-flight check of the aircraft or which arises due to failure to correctly carry out such maintenance or pre-flight check; and unavailability of flight crew or cabin crew (unless caused by labour disputes) shall not be considered as extraordinary. It can be stated that the adoption of the proposal would create a clear, comprehensive legal framework in the area of extraordinary circumstances.