UK: law suit over flight bans caused by volcanic ash?

EasyJet reportedly is planning to bring a class action lawsuit to win compensation for flight bans imposed by Europe’s air safety authorities. Most of Europe’s airspace was closed for nearly a week from April 15 after a huge ash cloud from the eruption of Eyjafjallajökull stranded millions of passengers and paralysed freight and businesses.

Source: Times online; find article here>>.

Germany: who can claim compensation for loss of holiday enjoyment?

Plaintiff had booked a Danube cruise arrangement with defendant for himself and his wife. As defendant cancelled the cruise, plaintiff claimed for compensation for loss of holiday enjoyment. Defendant payed a compensation half of the packacke price for one person to plaintiff but refused to pay any compensation in regard to plaintiff's wife, arguing plaintiff had had no authorisation by his wife when asserting the claim. A later assignation of the claim had missed the one month deadline. Plaintiff therefore filed a law suit.

Both, court of first instance (AG Frankfurt am Main) and appelate court (LG Frankfurt am Main) granted the claim: even though until to the assignation only plaintiff's wife herself had been entitled to the claim, the assignation constituted a retroactive authorization of the plaintiff.

In judgement Xa ZR 124/09 of May 26, 2010, German Supreme Court upheld these decisions. Though the court tended to the view that plaintiff as contract partner of defendant was entitled to file an individual suit this issue didn't have to be definitely clarified as the assignation had constituted a retroactive authorization, anyway.

Source: BGH press release 109/2010 of May 26, 2010

Italy: Ryanair fined for failing to assist passengers in volcanic ash crisis

Italy has fined Irish low-cost airline Ryanair 3 millon EUR for failing to help passengers after cancelling their flights during the volcanic ash crisis. Italy's civil aviation authority said it knew of 178 cases of passengers who did not receive mandatory assistance, such as food, between 17 and 22 April. Ryanair denies the allegations.

Source: BBC News; find article here>>.

UK: injunction against BA strikes overturned

A court of appeals overturned an injunction against strikes planned by British Airways’ cabin crew, and walkouts will occur unless the two sides reach an agreement. A first block of strike dates (May 18 to 22) was stopped by the injunction, but a walkout is likely to happen during the second block (May 24 to 28).

BA advises customers to check its website "on a regular basis" to see if their flight is still operating. If their flight has been canceled, customers should not come to the airport but contact British Airways or their travel agent, said the airline.

Source: Travel Weekly; find article here>>.

Air passengers' rights

Reference for a preliminary ruling before the ECJ (Case C-83/10 Rodríguez ea/Air France) from the Juzgado de lo Mercantil de Pontevedra (Spain) regarding the questions,

1. whether the term 'cancellation', defined in Art 2 lit l of Regulation 261/2004/EC has to be interpreted as meaning only the failure of the flight to depart as planned or is it also to be interpreted as meaning any circumstance as a result of which the flight on which places are reserved takes off but fails to reach its destination, including the case in which the flight is forced to return to the airport of departure for technical reasons?
2. whether the term 'further compensation' used in Art 12 has to be interpreted as meaning that, in the event of a cancellation, the national court may award compensation for damage, including non-material damage, for breach of a contract of carriage by air in accordance with rules established in national legislation and case-law on breach of contact or, on the contrary, must such compensation relate solely to appropriately substantiated expenses incurred by passengers and not adequately indemnified by the carrier in accordance with the requirements of Art 8 et seq even if such provisions have not been expressly relied upon or, lastly, are the two aforementioned definitions of the term further compensation compatible one with another?

German Supreme Court: no compensation for flight cancellation due to bad weather condidtions

Plaintiff had booked a flight from XRY (Jerez, Spain) to HHN (Hahn, Germany) for himself and his wife for Oct. 25, 2007 with Ryan Air. Departure was scheduled 10:00 a.m.. Due to foggy conditions at XRY, the flight was cancelled. The aircraft landed in SVQ (Sevilla, Spain) and returned to HHN from there. Plaintiff and his wife were offered an alternative flight on Oct. 27 which they refused. They booked a flight from MAD (Madrid, Spain) to FFM (Frankfurt, Germany) for Oct. 25 instead.

Plaintiff sued for compensation of EUR 400 each under Art. 7 Reg. (EC) 261/2004 as well as additional costs of the flight MAD-FFM.

First instance court (Amtsgericht Simmern) dismissed the claim. Appellate court granted the claim to a large extent.

Upon appeal by Ryan Air, German Supreme Court (BGH) dismissed the claim with regard to compensation under Art. 7 and repealed the judgement with regard to additional costs for procedural supplement.

In judgement Xa ZR 96/09 of March 25, 2010, BGH held that whether a cancellation reasonably could have been avoided had to be judged from case to case. Under the particular circumstances it had not been foreseeable how long the foggy conditions would last. Taking into regard the impact on the further flight schedule it would therefore not have been reasonable for Ryan Air to postpone the decision on cancellation.

Anyway, by offering alternative transportation not before Oct. 27, Ryan Air may have failed to comply with its obligation to provide adequate alternative transportation and may be liable for additional costs - which appellate court will have to consider in further proceedings .

Source: BGH press release 64/2010, available in German here>>.

Germany: Lufthansa facing a four-day strike of its pilots

German pilots’ union Vereinigung Cockpit has called on Lufthansa pilots to participate in a four-day strike from Feb. 22 to 25. Lufthansa said the decision was made despite willingness shown by the airline to reach a negotiated settlement. Vereingung Cockpit tries to explain their reasons in a passenger information sheet.

Lufthansa's German website provides a link to their passenger information ("Informationen zum angekündigten Pilotenstreik"); however there is no such link or information in the English version. The information provided in German claims that in case of a strike and resulting irregularities passenger care will rank first for Lufthansa. At the current stage they grant free re-booking to other Lufthansa flights subject to certain conditions and restrictions. In case of a strike they announce to allow free cancellation or re-routing.

There is no mentioning of compensation for cancelled flights according to Reg. 261/2004, though. Media report that Lufthansa intends to rely on "extraordinary circumstances". However, in C-549/07 - Wallentin-Hermann ECJ has taught us that the term "extraordinary circumstances" requires a narrow interpretation an that recital 14 of the Regulation did not mean that the events listed there themselves constitute extraordinary circumstances, but only that they may produce such circumstances. Even though "strike" is mentioned as a potential reason for extraordinary circumstances in recital 14 of the Regulation, thus there remains doubt whether a strike of the operating carrier's own staff can amount to this exoneration.

A new reference for preliminary ruling seems a likely consequence ...

German Supreme Court: statutory period of limitation of Montreal Convention not applying to claims under Reg. (EC) 261/2004

On April 2, 2008, plaintiff had filed a claim for compensation under Reg. (EC) 261/2004 because of cancellation of his scheduled flight from FRA to PMI on Nov. 19, 2005. The statement of claim had been delivered to defendant on May 5, 2008.

Both, first instance court (AG Rüsselsheim) and court of appeal (LG Darmstadt) dismissed the claim. Court of appeal argued that Reg. 261/2004 did not contain any statute of limitation. This loophole had to be filled by applying the limitation period of Art. 35 Montreal Convention as Reg. 261/2004 was supplementing the Convention with regard to passenger rights. As plaintiff's law suit had missed this limitation period, the claim had to be dismissed.

In judgement Xa ZR 61/09 of Dec. 10, 2009 German Supreme Court rejected application of the limitation period under the Montreal Convention: Montreal did not cover cancellation and the compensation under Reg. 261/2004 was not a claim for damages in the meaning of Art. 19 and 29 Montreal Convention. Though Reg. 261/2004 was supplementing the Convention, the two legal acts did not constitute a consistent legal system. Therefore not Montreal but the limitation period under national law was applicable.

Supreme Court thus repealed the judgement remanding the case to the court of appeal.

Judgement Xa ZR 61/09 of Dec. 10, 2009 available in German here>>.

Germany: new Supreme Court decision on liability under Reg. 261/2004

Plaintiff had booked a round trip flight FMO-FRA-GRU-FLN-GRU-MUC-FMO with defendant air carrier (LH). The section GRU-MUC was a codesharing flight with RG, recognizable by indication of both flight numbers (LH/RG) and the note "operated by RG". The flight GRU-MUC was cancelled and plaintiff rerouted to a later LH flight to FRA. Due to delayed departure of the latter flight of more than 4 hrs, plaintiff missed her connecting flight to FMO. As the next available flight FRA-FMO was also cancelled she was rerouted once more to CGN.

Plaintiff sued LH for compensation of EUR 600 under Reg. (EC) 261/2004. First instance court granted the claim, court of appeal dismissed same. Upon further appeal of plaintiff, German Supreme Court (BGH) repealed the judgement remanding the case to the court of appeal:

"Operating carrier" in art. 5 par. 1 lit c of Reg. 261/2004 had to be interpreted the same way as "actual carrier" in art. 39 Montreal Convention, thus meaning the carrier which actually operated the flight regardless of an exclusive contractual relationship with another carrier. The purpose of a high level of consumer protection would not require a different interpretation. In case of code sharing only the carrier actually operating the flight was able to influence its performance. The purpose of the provision would not allow to regard the other cooperation partner of the code share flight as being "operating" same as well.

Operating carrier of the flight GRU-MUC had therefore only been RG resulting into no liabilty of LH under Reg. 261/2004 for the cancellation of the original flight GRU-MUC.

Anyway, this was not sufficient to dismiss the claim as the LH flight GRU-MUC which plaintiff was rerouted to was delayed for more than 4 hrs resulting into a delayed arrival of considerably more than 3 hrs. Given ECJ decision C-402, 432/7 (Sturgeon/Condor and Böck/Air France), passengers suffering such delay had a similar claim for compensation like passengers of cancelled flights. The claim for compensation could therefore be based on the delay of the substitue flight.

Court of appeal will therefore have to render a new judgement which will have to consider whether the technical problems - which due to its conclusions had caused the delay - had been of a nature that would constitute "extraordinary circumstances" under art. 5 par. 3 of Reg. 261/2004.

Full text of BGH judgement Xa ZR 132/08 of Nov. 26, 2009 available in German here>>.

Cancellation or Delay - some 'Highlights' of Advocate General Sharpston's Opinion

...

31. In the explanatory memorandum to its original proposal for a regulation, the Commission noted, at point 20, that ‘[c]ancellation by an operator … represents a refusal to supply the service for which it has contracted, except in exceptional circumstances beyond its responsibility, such as political instability, severe weather conditions, inadequate security and unexpected safety failures. For the passenger, cancellation in ordinary circumstances, for commercial reasons, causes unacceptable trouble and delay, particularly when not warned in advance.’ At point 23, it stated: ‘Although passengers suffer similar inconvenience and frustration from delays as from denied boarding or cancellation, there is a difference in that an operator is responsible for denied boarding and cancellation (unless for reasons beyond its responsibility) but not always for delays ...

32. It is not all that easy to discern the logic behind the distinction that the Commission was there drawing ...

...

35. In the course of the legislative process, however, there does not appear to have been a strong focus on that distinction, particularly once the levels of compensation had been reduced. In the text as finally adopted, it is difficult to deduce the criteria for distinguishing between ‘cancellation’ and ‘delay’.

...

38. The Regulation has the considerable merit of granting automatic compensation to passengers whose flights have been cancelled. However, as the Polish Government notes in its written observations, the distinction the Regulation introduces between cancellation and delay may lead to passengers who find themselves in objectively similar situations being treated differently.

...

47. In the IATA and ELFAA judgment, the Court stated unequivocally that the objective of Articles 5 (cancellation) and 6 (delay) of the Regulation is apparent from the first and second recitals in the preamble, according to which action by the Community in the field of air transport should aim, inter alia, at ensuring a high level of protection for passengers and should take account of the requirements of consumer protection in general, inasmuch as cancellation of, or long delay to, flights causes serious inconvenience to passengers.

...

51. However, regardless of the seriousness of the inconvenience caused, the Regulation provides that the cancellation of a flight automatically triggers a right to compensation (under Article 7) while a delay never does. As the order for reference in Sturgeon suggests and as the Commission indicated at the hearing, the Regulation therefore appears to be based on the assumption that a cancellation necessarily causes more inconvenience to passengers, and hence merits a stronger form of protection, than a ‘mere’ delay.

52. It is wholly unclear to me why this should be so ...

...

60. It seems to me that the underlying logic (again, against the background of enhanced consumer protection) must have been that, where the operator is not responsible for the inconvenience (whether caused by cancellation or long delay), he should not have to pay compensation; and that, conversely, where he is responsible, he should pay. Put another way, the criterion for compensation is not causation, but fault (broadly defined) on the part of the operator.

61. If that is right, it still does not explain why passengers suffering the inconvenience of a cancellation and passengers suffering the inconvenience of a long delay are treated differently. ...

62. The difference in treatment therefore appears to fall foul of the principle of equal treatment.

...

68. Factors that have been cited before the Court and in national case-law and legal writing as providing possible indications that a flight has been cancelled include: change of air carrier, change of aircraft, change of flight number, change of airport of departure or arrival, giving baggage back to passengers, new check-in for passengers, new seating assignment, allocation of all passengers to one or more other aircrafts, issuing new boarding passes, and the fact that the flight is described as ‘cancelled’ by the pilot (or other air carrier staff) or on the departures board.

69. Common sense suggests that all of these factors could be indications that a flight has been cancelled rather than merely delayed. The more factors that are present together, the more likely it becomes that there has indeed been a cancellation. By the same token, I do not think that any individual factor can be conclusive.

...

72. The Commission, supported at the hearing by counsel for Mr Böck and Ms Lepuschitz, for Condor, and for the Greek Government, suggests in its written observations that a change of flight number is a strong indication that a flight has been cancelled. I agree.

...

75. Since none of the factors cited can be conclusive on its own, national courts must assess the importance of each of them, when they are present in combination, in each individual case. That may lead to significant problems with legal certainty.

...

81. As a matter of common sense, time is obviously a factor in identifying whether a flight has been cancelled. If a number of the factors listed above are present in combination and/or the flight has been delayed for an inordinate period of time, that is a very strong indication that the flight has in fact been cancelled.

...

83. ... However, there are two difficulties with this approach. First, what is meant by ‘inordinate delay’? Second, is it permissible to interpret the Regulation in a way that classifies inordinate delay as de facto cancellation?

...

87. It seems to me impossible to identify, with any acceptable degree of precision, exactly what period of time must elapse before a delay become ‘inordinate’.

88. It would therefore be a matter for the national court, in each individual case, to evaluate the facts and reach a view – based on some mixture of national legal tradition, good sense and instinct rather than any precise Community legal norm – as to whether the delay in that instance had been ‘inordinate’ and should therefore be regarded as a de facto cancellation. ...

...

96. It seems to me that, in seeking to avoid Scylla (obvious discrimination against passengers whose flights are inordinately delayed when compared to passengers who obtain automatic compensation for their cancelled flight), one is immediately swept into Charybdis (legal uncertainty). ...

European Court of Justice: Advocate General Sharpston suggests reopen oral procedure on whether Articles of Regulation 261/2004 (EC) are invalid

In Cases C-402/07 -Sturgeon and C-432/07 - Böck both related to the destinction of cancellation and (extra) long delay according to Reg. 261/2004, Advocate General Sharpston in her opinion delivered this morning pointed out that in the course of the legislative process, regardless the importance there does not appear to have been a strong focus on that distinction, particularly once the levels of compensation had been reduced. In the text as finally adopted, it was difficult to deduce the criteria for distinguishing between ‘cancellation’ and ‘delay’.

She suggested that

• Before ruling on the questions posed by the Bundesgerichtshof and the first and second questions posed by the Handelsgericht Wien, the Court should reopen the oral procedure pursuant to Article 61 of the Rules of Procedure and invite submissions from the Member States, the Commission, the European Parliament, and the Council on whether Articles 5 and 7 and Article 6 of 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, inasmuch as they draw a distinction between cancellation and delay (irrespective of length), are invalid in the light of the principle of equal treatment.

In regard to the excuse of extraordinary circumstances and technical problems she re-affirmed:

• Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events 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.

Full text of opinion available here>>.