Air Passenger Rights

Ten Years On

Michal Bobek, Jeremias Adams-Prassl, Michal Bobek, Jeremias Adams-Prassl, Michal Bobek, Jeremias Prassl

• Publisher: Hart Publishing
• Year: 2016
• Print ISBN:
  9781509921188
• Edition: 1
• eBook ISBN:
  9781782259527
• Topic: Law
• Subtopic: International Law
• Index: Law

Regulation 261/2004 on Air Passengers' Rights has been amongst the most high-profile pieces of EU secondary legislation of the past years, generating controversial judgments of the Court of Justice, from C-344/04 ex parte IATA to C-402/07 Sturgeon. The Regulation has led to equally challenging decisions across the Member States, ranging from judicial enthusiasm for passenger rights to domestic courts holding that a Regulation could not be relied upon by an individual claimant or even threatening outright to refuse to apply its provisions. The economic stakes are significant for passengers and airlines alike, and despite the European Commission's recent publication of reform proposals, controversies appear far from settled.
At the same time the Regulation should, according to the Treaty, have uniform, direct and general application in all the Member States of the Union. How, then, can this diversity be explained? What implications do the diverging national interpretations have for the EU's regulatory strategy at large? This book brings together leading experts in the field to present a series of case studies from 15 different Member States as well as the extra-territorial application of Regulation 261, combined with high-level analysis from the perspectives of Aviation law and EU law.

1

Welcome Aboard: Revisiting Regulation 261/2004

JEREMIAS PRASSL AND MICHAL BOBEK

As noted in the introduction to the first volume in this series,¹ the nature and operation of European Union (EU) law have traditionally been analysed in a highly ‘centralised’ way, through the lenses of Brussels and Luxembourg, in terms of the Treaties and their interpretation by the Court of Justice of the European Union (CJEU). In consequence, both scholarship and legal discourse have often been aimed at the European level, describing and analysing EU law primarily from a perspective akin to that of a fully-fledged and autonomous legal system. Member States and their legal systems, on the other hand, feature much less frequently in this analysis; at least beyond the supposedly obedient application and implementation of primary and secondary EU law, as a source of preliminary references and as recipients of the rulings thus issued.

I. From Landmark Cases to Landmark Legislation

This volume returns to the quest of changing our understanding of EU law by eschewing the traditional top-down, centralised and unitary perspective, and adopting a bottom-up, composite and by definition comparative approach instead. For the present study, however, neither a landmark decision, as was the case with Viking and Laval,² nor a large-scale socio-legal transformation of entire judicial systems in the new Member States of the Union³ is at stake. Instead, we set out to analyse a rather discrete piece of secondary legislation: Regulation 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 (Regulation 261).⁴

At first sight, this choice might fail to excite all but a select group of EU aviation experts. To generalist EU lawyers, Regulation 261 may appear somewhat too technical, even dry. Even specialist EU lawyers are unlikely to have studied the Regulation in their academic capacity, even though they may well have encountered its (non-) application as passengers, when their flight was delayed or, in the less lucky course of events, cancelled. Even then, however, Regulation 261 would hardly appear to be the object of much sustained academic study.

Upon further consideration, however, the EU’s enactment in 2004 of a comprehensive passenger rights regime fits neatly into the identification of ‘landmark’ developments in Union law which our series hopes to chart.⁵ First, because the form of the legislative instrument in question is a regulation. The choice of such legal instrument may appear counterintuitive: why focus on a regulation for a comparative study of EU law in the Member States? If ‘implementation studies’ are carried out, they typically examine the national transposition of directives, or other EU sources that expressly mandate national implementation. By contrast, a regulation is directly applicable across the entire Union. In the vast majority of cases, it is not to be transposed by the Member States. Thus, it ought to be the same in all Member States and comparative studies of its application may seem redundant—an assumption that stands in stark contrast with the picture conveyed by individual chapters reflecting on the national application of a nominally ‘uniform EU regime’.

Secondly, Regulation 261 offers a well-arranged and compact view of a sub-field of EU law. In contrast to a number of other areas of EU rules, where there are multiple sources at the EU level which make the tracking of impact and causality of individual pieces of legislation or case law on the national level difficult, air passengers’ rights are a discrete area of law introduced and codified in a single, concise regulation. This allows for a reliable study of national implementation, since the area of law is clearly demarcated and can be captured even within the confines of the present volume.

Thirdly, as 10 years have passed since Regulation 261’s entry into force on 17 February 2005,⁶ the time is ripe for a detailed analysis of the Regulation’s impact across national legal systems. Over the years, individual analyses of the Regulation have ranged from praise for providing ‘a high degree of protection for passengers’⁷ to warnings of ‘a multiple failure’,⁸ ‘in practice lead[ing] to significant problems in the implementation of … passenger rights’,⁹ or even to ‘serious concerns about the rule of law in the EU’ itself.¹⁰ The national reports at the core of this book allow us to revisit the controversies surrounding the EU’s passenger rights regime in the broader context of individual Member States, and to observe how the Regulation has begun to be absorbed into national discourse and practice.

Fourthly, given the Regulation’s explicit consumer-protective tendency,¹¹ it furthermore provides a good illustration, pars pro toto, of some of the challenges faced by the broader consumer acquis in its interaction with established market practices across different Member States.

Lastly, there is also the underlying conflict between Union norms and international law that clearly surfaces in this specific area, making it a good case study for a phenomenon that is of increasing importance in EU law more broadly.¹² Decisions of the Court of Justice and of domestic courts¹³ in the present context may provide (and indeed already have) important clues as to different judiciaries’ broader approach to the reconcilation of EU law with international norms.

II. The Multi-Layered Perspectives of a Multi-Dimensional Problem

The evidence from EU and international law, as well as from a cross-section of Member States collected in this volume, is organised as follows. Part I focuses on analysing Regulation 261/2004 at the EU level, as well as in its broader international context. Part II then turns to the Member State perspectives, surveying the (by now perhaps un-) surprisingly diverse impact of the air passenger rights Regulation in 15 EU countries, as well as its extra-territorial implications. Part III draws on these reports, as well as the EU-level perspectives in Part I, to engage in a dialogue across the various spectra, with chapters looking at the implications of the material thus assembled for the EU’s internal market, constitutional questions and the future of the passenger rights regime.

A.EU-Level Perspectives

Part I of this book opens with a unique point of view from a key participant in the leading decisions discussed throughout this volume. Judge Jiří Malenovský of the Court of Justice, writing extra-judicially, boldly embraces the opportunity ‘to defend the position of the Court of Justice and reply to some of the criticism expressed towards certain judgments delivered in the field of air transport’. Having set out the main lines of challenge to the Court’s case law and the consistent responses provided by the Court of Justice in return, chapter two begins with a look at the relationship between EU law and international norms in order to explain the decisions’ compliance with established rules of international law.

Malenovský then turns to the ‘minefield’ of the extraordinary circumstances provision, recounting how a series of last-minute withdrawals of preliminary reference requests hampered the Court’s early efforts to provide clear guidance, before focusing on a detailed defence of the principle of delay compensation as developed in Sturgeon v Condor¹⁴ and confirmed in Nelson v Deutsche Lufthansa AG.¹⁵ This meticulous and hitherto unpublished explanation of the Court’s reasoning replies to a long series of academic and domestic judicial criticisms, as well as points of divergence with Advocate Sharpston’s Opinion, before concluding with a reflection on the broader legitimacy of the Court’s work.

Frank Benyon’s chapter focuses on the genesis of Regulation 261 and its broader context, in particular the EU’s common transport policy: a market liberalisation long resisted by the Member States on grounds of competence, and later by the air carriers when their new-found freedoms came hand in hand with additional passenger rights. The Regulation’s consumer-protective approach can, however, be defended by reference to other sectors, such as the regulation of telecoms and the maritime sector. As the Court of Justice noted in Vodafone,¹⁶ market integration is not the sole decisive factor in relying on Article 114 TFEU; consumer protection may play an equally central role.

Benyon then contrasts the development of international transport policy with that in the EU, where Member States continue to participate independently in the negotiations of international agreements. This situation was complicated by the Union’s ability to take measures in areas subject to international agreements, incorporating them into EU law through Regulations or Directives, even though the Union cannot conduct such negotiations directly unless it is itself a member of the relevant international organisation. This inter-institutional dimension of Regulation 261 is equally important within the Member States, in particular when it comes to the enforcement of its rules through non-judicial actors such as national enforcement bodies (NEBs).

The international dimension is explored further in David McClean’s contribution. His chapter starts with the observation that ‘it has been a feature of the history of the Warsaw Convention, and will be of the Montreal Convention and Regulation 261 and its likely successor, that some courts will find ways of avoiding the clear meaning of the text’. The argument then hones in on the crucial issue when reading Regulation 261 alongside the Montreal Convention: the latter’s exclusivity principle, as laid down in Article 29 of the Convention, stipulating that the Montreal Convention defines exclusively the circumstances in which a carrier may be liable in international carriage. McClean describes how the exclusivity principle has been applied in leading cases in the United States and the United Kingdom. He concludes that it is clear that the Montreal Convention was intended to regulate private rights and that some traditional categories of public international law may therefore not be applicable.

On what legal basis might a claim under Regulation 261 then be brought despite the exclusivity of the Montreal Convention? McClean’s careful analysis of the distinction between types of damages suffered by delayed passengers, and the role of Article 12 of Regulation 261 in shaping compensation payments, highlights the illogicalities inherent in the leading cases when viewed from the long-established perspective of the Montreal Convention.

These contradictions are the ‘fundamental fallacy’ at the starting point of John Balfour’s contribution. Chapter five dissects the assertion in R (International Air Transport Association and European Low Fares Airline Association) v Department for Transport¹⁷ (ex parte IATA) that there is no conflict between the provisions relating to delay in Regulation 261 and the Montreal Convention, based on the provisions in the Convention excluding and limiting the carrier’s liability for delay and on the exclusivity of the Convention as regards any action for damages. The ex parte IATA judgment is discussed in detail, noting in particular Article 8(1)(a) of Regulation 261, which Balfour argues is not concerned with ‘immediate’ relief and does not operate ‘at an earlier stage than the system which results from the Montreal Convention’. Instead, he suggests that it has the potential to result in compensation that is by no means standardised and the same for each passenger, and which requires case by case assessment—thus falling squarely into the regulatory domain of the Montreal Convention. This and related conflicts between EU law and the Montreal Convention are traced through the Court’s jurisprudence, leading to the conclusion that the only possible way forward would seem to be an action brought by one or more non-EU parties to the Montreal Convention against some or all of the EU Member States before the International Court of Justice.

Silvia Ferreri, on the other hand, approaches the by now well-rehearsed set of cases from the perspective of the non-transportation specialist. She highlights the complexities caused by multiple sources of law that govern the field of aviation law, from the global level to individual Member States, the ‘cumulative effect’ of which leads to difficult questions when different regimes come into contact with each other—in particular if one regime purports to apply exclusively. The resulting problems can be framed as a tension between the advantages of a flexible evolution of international law on the one hand, and its fragmentation on the other—a tension which the Court of Justice sought to diffuse by attempting to reconcile the interpretation of competing, yet equally binding, texts.

This approach, Ferreri suggests, must also be seen in the light of different approaches to judicial interpretation—the Court of Justice’s expansive understanding may well be different from the literal reading of statutes generally adopted by the English judiciary. It is furthermore in line with the ‘presumption of conformity’, which exhorts judges to ‘reconcile commitments stemming from different sources as long as no explicit abrogation is established in the later legislation in unambiguous terms’. It is in the light of this effort to maintain a coherent application of international sources that the cost of strained interpretation ought to be seen. This may we...

Table of contents

• Cover
• Title Page
• Preface
• Contents
• Notes on Contributors
• List of Abbreviations
• 1. Welcome Aboard: Revisiting Regulation 261/2004
• Part I: EU-Level Perspectives
• Part II: Member States’ Perspectives
• Part III: Broader Horizontal Perspectives
• Selected Bibliography
• Index
• Copyright Page