In the

United States Court of Appeals

For the Seventh Circuit

No. 13-3521

GENNADIY VOLODARSKIY, et al.,

Plaintiffs-Appellants,

v.

DELTA AIRLINES, INC.,

Defendant-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 11 C 00782 — Edmond E. Chang, Judge. 

ARGUED APRIL 17, 2014 — DECIDED APRIL 10, 2015

Before MANION, SYKES, and TINDER, Circuit Judges.

SYKES, Circuit Judge. Several air travelers sued Delta

Airlines, Inc., seeking compensation for themselves and a

nationwide class of persons who were inconvenienced when

their flights from airports located in the European Union were

delayed for more than three hours or cancelled on short notice.

The suit was filed in the Northern District of Illinois and
2 No. 13-3521

invokes the court’s diversity jurisdiction under the Class

Action Fairness Act, 29 U.S.C. § 1332(d) (“CAFA”). The claim

arisesunder a consumer-protection regulation promulgatedby

the European Parliament setting standardized compensation

rates ranging from €250 to €600 (depending on flight distance)

for cancellations and long delays of flights departing from

airports located within EU Member States. See Regulation

261/2004, 2004 O.J. (L 46) 1 (EC). A threshold question is

whetherthis regulation (known as “EU 261”) may be judicially

enforced outside the EU. The district court held that it could

not and dismissed the case.

We affirm. First, EU 261 is not incorporated into Delta’s

contract of carriage, so the claim is not cognizable as a breach

of contract. The plaintiffs concede the point and press only a

“direct” claim under the regulation. But a direct claim for

compensation under EU 261 is actionable only as provided in

the regulationitself, which requires that each EU Member State

designate an appropriate administrative body to handle

enforcementresponsibility and implicitly limits judicial redress

to courts in Member States under the procedures of their own

national law.

I. Background

On August 17, 2009, Illinois residents Gennadiy

Volodarskiy, his wife, Oxana Volodarskaya, and their two

minor children were passengers on a Delta flight departing

from London’s Heathrow Airport bound for Chicago’s O’Hare

International Airport. Theirflight was delayed at Heathrow for

more than eight hours. Delta neither informed them of the
No. 13-3521 3

delay priorto their scheduled departure timenor compensated

them for it after the fact.

On November 29, 2010, New Jersey residents Richard

Cohen and his wife, Inna, were passengers on a Delta flight

departing from ParisboundforPhiladelphia. They boarded the

plane as scheduled, but Delta deboarded the passengers and

canceled the flight nearly three hours after the appointed

departure time. The Cohens arrived in Philadelphia more than

24 hours after their scheduled arrival time. Delta did not give

notice of the cancellation prior to the scheduled departure or

compensate the Cohens for the inconvenience. 

The Volodarskiy family and Richard Cohen are the plaintiffs in this proposedclass-actionlawsuit seeking compensation

from Delta under EU 261, which establishes common rules

governing airline assistance and compensation in the event of

boarding denials, cancellations, or long delays of flights

departing from airports located within the EU.

More specifically, EU 261 applies to passengers “departing

from an airport located in the territory of a Member State,”

EU 261 art. 3(1)(a), and establishes a fixed compensation

schedule entitling inconvenienced passengers to a minimum of

€250 and a maximum of €600 (depending on flight distance), id.

art. 7(1), for cancellations that occur on short notice and

without an offer of a rerouted flight within a specified time

frame, id. art. 5(1).1

 Compensation is not owed for flights that

1 EU 261 also applies to passengers “departing from an airport located in a

third country to an airport situated in the territory of a Member State to

(continued...)
4 No. 13-3521

are canceled due to “extraordinary circumstances which could

not have been avoided even if all reasonable measures had

been taken.” Id. art. 5(3).

So, for example, if an airline cancels a flight from Berlin to

Rome—a distance of less than 1,500 km by air—without

sufficient notice and in the absence of “extraordinary circumstances,” the passengers are entitled to payment of €250 under

the compensation structure set forth in Article 7 of EU 261. Id.

art. 7(1)(a). The amount of compensation increases with the

distance of the flight, to the maximum payment of €600. Id.

art. 7(1). The airline can reduce the amount of compensation

owed by 50% by offering rerouting that reduces the length of

the delay to within certain minimums specified in the regulation. Id. art. 7(2).

The actual text of EU 261 requires airlines to pay compensation only for canceled flights, see id. art. 5, but the European

Court of Justice has extended the entitlement to flight delays of

more than three hours from the scheduled departure time, see

Joined Cases C-402/07 & C-432/07,Sturgeon v. Condor Flugdienst

GmbH, 2009 E.C.R. I-10923, I-10979–80.

EU 261 also requires air carriers to offer various forms of

assistance to their passengers in the event of cancellations and

1

 (...continued)

which the Treaty applies,” but only if the flight is operated by a

“[c]ommunity carrier.” Regulation 261/2004, 2004 O.J. (L 46) 1 (EC)

art. 3(1)(b). The term “community carrier” is defined elsewhere in the

regulation, see id. art. 2(c), and the parties agree that it does not apply to

Delta.
No. 13-3521 5

certain long delays. Cancellations and delays of more than two

hours require specified forms of assistance depending on flight

distance and the length of the delay, see EU 261 art. 6, including

reimbursement of airfare, a return flight to the first point of

departure, rerouting to the traveler’s final destination at the

earliest opportunity, meals, and lodging, id. art. 8 & 9.

The regulation prescribes an enforcement regime for these

entitlements. Most notably, it requires each Member State to

designate a national administrative body to handle enforcement responsibilities. See id. art. 16; id. preamble ¶ 22. We will

return to the regulation’s enforcement provisions later. For

now it’s enough to note that the plaintiffs did not use the

enforcement mechanisms available to them in the relevant

EU Member States (the United Kingdom and France, where

theirdeparture airports are located). Instead,they sought relief

under EU 261 in an American forum, no doubt to access the

class-action device available under U.S. law.

2

2 Most European nations have not embraced the U.S.-style class action. See

Rachael Mulheron, The Case for an Opt-Out Class Action for European Member

States: A Legal and Empirical Analysis, 15 COLUM. J. EUR. L. 409, 415 (2009)

(“Opt-out collective redress regimes are most definitely the exception, and

not the rule, across the twenty-seven European Member States. Only

three—Denmark, the Netherlands, and Portugal—have some version of an

opt-out collective redress regime ... .”); S. I. Strong, Regulatory Litigation in

the European Union: Does the U.S. Class Action Have a New Analogue?,

88 NOTRE DAME L. REV. 899, 903 (2012) (noting “Europe’s traditional

antipathy toward ... U.S. class actions”). Some nations do provide a form

of “collective redress,” although these aggregate litigation procedures vary.

See Strong, supra, at 903 (“As it turns out, sixteen of the twenty-seven

European Member States now provide for some form of large-scale

(continued...)
6 No. 13-3521

In February 2011 Volodarskiy and his family filed suit

against Delta in the Northern District of Illinois seeking to

represent a class of U.S. residents whose flights from airports

in EU Member States were canceled or delayed for more than

three hours. The sole cause of action in the original complaint

was a claim for breach of contract; the plaintiffs contended that

EU 261 was incorporated into Delta’s international contract of

carriage. That claim failed at the pleading stage. Ruling on

Delta’s motion to dismiss, the district court held that EU 261

was not explicitly incorporated into Delta’s contract of carriage

and any incorporation by implication would be barred by the

preemption clause of the Airline Deregulation Act, 49 U.S.C.

§ 41713(b) (“ADA”). The judge dismissed the complaint but

allowed the plaintiffs to replead.

The amended complaint dropped the contract claim, added

Richard Cohen as a plaintiff, and alleged only a “direct” claim

under EU 261. Delta again moved to dismiss, this time arguing

that a direct claim under EU 261 is actionable only in a designated administrative body or a court in an EU Member State.

Alternatively, Delta argued that even if a direct claim is

2

 (...continued)

litigation as a matter of national law ... .”). See generally Mulheron, supra, at

415–27 (describing collective-redress procedures in a variety of European

nations). Recently, the European Commission recommended thepromulgation of more unified collective-redressprocedures across member states, but

these recommendations evince continued hostility toward the U.S.-style

opt-out class action. See Commission Recommendation 2013/396/EU, art. 5,

2013 O.J. (L 201) 60, 64; see also Samuel Issacharoff & Geoffrey P. Miller, Will

Aggregate Litigation Come to Europe?, 62 VAND. L. REV. 179, 192 (2009).
No. 13-3521 7

cognizable outside the legal systems of the EU, the ADA

preempts it. Finally, Delta argued that prudential principles of

international comity required the court to abstain and dismiss.

The judge agreed with the first of these arguments, holding

that “EU 261 does not provide a private right of action that can

be enforced in courts outside the EU.” For completeness,

however,the judge addressed—and rejected—Delta’spreemption and comity arguments.3 The judge then dismissed the

amended complaint and terminated the case.

II. Discussion

The plaintiffs do not challenge the dismissal of their breachof-contract claim. To the contrary, they now concede that

EU 261 is not incorporated into Delta’s contract of carriage and

abandon their breach-of-contract theory. What remains is a

direct claim under EU 261, so the threshold issue on appeal is

whether the regulation may be judicially enforced outside the

courts of EU Member States. The parties agree that EU 261

creates, in the parlance of U.S. law, a private right of action;

they disagree about where that action can be maintained.

3 Delta also argued, though only in a footnote, that the plaintiffs’ claim is

preempted under the Montreal Convention, amultilateral treaty governing

international air transportation. The district judge found this argument

underdeveloped but addressed it anyway and rejected it. Delta has not

raised the Montreal Convention on appeal. We have an amicus brief from

other international air carriers raising the Convention as analternative basis

to affirm. Because we’re affirming on another ground and Delta does not

rely on the Convention, we do not address this argument.
8 No. 13-3521

It’s hard to classify this dispute doctrinally. It has shadings

of jurisdiction, venue, and choice-of-law, but it doesn’t fit

neatly into any of these doctrinal baskets. We note for starters

that there are no jurisdictional concerns; CAFA supplies

subject-matter jurisdiction. The parties haven’t framed the

issue as a conflicts-of-law question; they make no effort to

analyze the case under Illinois choice-of-law rules.4See

McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir.

2014) (federal courts sitting in diversity apply the forum state’s

choice-of-law rules to determine the applicable substantive

law). Instead, they simply assume that EU law applies and

argue about the proper interpretation of the regulation.

Forum non conveniens might have had a role to play here.

That doctrine holds that a case may be dismissed if the court

“determines that there are ‘strong reasons for believing it

should be litigated in the courts of another, normally a foreign,

jurisdiction.’” Fischer v. Magyar Államvasutak Zrt., 777 F.3d 847,

866 (7th Cir. 2015) (quoting Abad v. Bayer Corp., 563 F.3d 663,

665 (7th Cir. 2009)). One good reason to dismiss a case based

on forum non conveniens is to avoid the administrative orlegal

complications of interpreting and applying a foreign country’s

law. Id. at 866–68. Relatedly, the doctrine permits dismissal in

deference to a foreign sovereign’s superior competence and

public interest in adjudicating its own law. Id. at 870–71. These

4 The suit is obviously doomed if the forum state’s law controls. Without a

viable breach-of-contract theory, there is no cognizable basis in Illinois law

for the plaintiffs’ claim.
No. 13-3521 9

principles are implicated here, but Delta’s dismissal motion

was not premised on forum non conveniens.5

Taking the case as the parties have litigated it, Delta’s main

argument is that the enforcement provisions of EU 261—either

on their own or in conjunction with background principles of

EU treaty law—limit compensation claims to designated

administrative bodies or courts within EU Member States. The

district judge agreed and dismissed the case on that basis.

6

On appeal the plaintiffs attack the judge’s interpretation of

the enforcement language in EU 261. Delta defends it of course.

Our review is de novo. Tamayo v. Blagojevich, 526 F.3d 1074,

1081 (7th Cir. 2008).

EU 261 does not have an explicit forum-limitation clause.

But it also doesn’t clearly empower tribunals in nonmember

countries to enforce the compensation system. And the text

and structure of the regulation indicate that passenger claims

5

In their appellate briefs, the plaintiffs cite a few cases involving international choice-of-law questions and dismissal motions based on forum non

conveniens. See, e.g., Kalmich v. Bruno, 553 F.2d 549 (7th Cir. 1977) (choice

of law); Kalmich v. Bruno, 404 F. Supp. 57 (N.D. Ill. 1975) (same); see also

Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481 (2d

Cir. 1998) (forum non conveniens); Brooks v. Hess Oil V.I. Corp., 809 F.2d 206

(3d Cir. 1987) (choice of law). Because Delta hasn’t raised forum non

conveniens or argued that Illinois law controls, these cases are unhelpful

here.

6 As we’ve explained, Delta also advanced arguments based on ADA

preemption and comity, but the judge said he would not dismiss on either

ground.
10 No. 13-3521

for compensation due from air carriers are limited to administrative bodies and courts in EU Member States. 

The operative text of EU 261 prescribes two main avenues

of enforcement, which are summarized in this aspirational

language in the preamble: 

Member States should ensure and supervise

general compliance by their air carriers with this

Regulationanddesignate an appropriate body to

carry out such enforcement tasks. The supervision should not affect the rights of passengers

and air carriers to seek legal redress from courts

under procedures of national law. 

EU 261 preamble ¶ 22. The actual enforcement provisions are

found in Article 16, entitled “Infringements.” In relevant part,

that article provides:

1. Each Member State shall designate a body responsible for the enforcement of this Regulation as regards

flights from airports situated on its territory and

flights from a third country to such airports.

Where appropriate, this body shall take the

measures necessary to ensure that the rights of

passengers are respected. ... 

2. Without prejudice to Article 12, each passenger

may complain to any body designated under paragraph 1, or to any other competent body designated by

a Member State, about an alleged infringement of this

Regulation at any airport situated on the territory of

a Member State or concerning any flight from a
No. 13-3521 11

third country to an airport situated on that

territory.

Id. art. 16(1)–(2) (emphases added).

The “body” referred to in both the preamble and in

Article 16 is an administrative entity designated by each

Member State, known as a “National Enforcement Body” or

“NEB.” According to a report prepared for the European

Commission, most NEBs focus on investigations and direct

enforcement against airlines rather than assisting individual

passengers in obtaining more formal legal redress. See Steer

Davies Gleave, Evaluation of Regulation 261/2004, THE EUROPEAN COMMISSION, 75–76, 81 (Feb. 2010), http://ec.europa.eu/

transport/themes/passengers/studies/doc/2010_02_ evaluation_

of_regulation_2612004.pdf. So passengers also seek relief for

infringements of their EU 261 rights in civil courts, often the

equivalent of our small-claims courts. See id. at 78–82. Many

provisions of EU law are immediately enforceable in the

judicial fora of Member States (subject to the procedural and

venue rules of each nation) regardless of whether the Member

State has independently implemented the provision. This

background principle of EU law is known as “direct effect.” See

TheDirectEffect of European Law, EUROPA, http://eur-lex.europa.

eu/legal-content/EN/TXT/HTML/?uri=URISERV:114547&rid=1

(Sept. 22, 2010) (citing Case 26/62, Van Gend en Loos v.

Nederlandse Administratie der Belastingen, 1963 E.C.R. 1); see also

Case C-253/00, Antonio Muñoz y Cia SA & Superior Fruiticola

SA v. Frumar Ltd. & Redbridge Produce Mktg. Ltd., 2002 E.C.R.

I-7289, I-7320–21 (“[R]egulations have general application and

are directly applicable in all Member States. ... [R]egulations
12 No. 13-3521

operate to confer rights on individuals which the national

courts have a duty to protect.” (citation omitted)).

Another provision of EU 261 specifies that an air carrier’s

obligations to passengers “may not be limited or waived.”

EU 261 art. 15(1). If a contract of carriage includes a purported

waiver or limitation of EU 261 rights, or if an airline fails to

properly inform a passenger of his rights “and for that reason

[the passenger] has accepted compensation which is inferiorto

that provided forin this Regulation,” then the passenger “shall

still be entitled to take the necessary proceedings before the

competent courts or bodies in order to obtain additional

compensation.” Id. art. 15(2).

The district court held that when read together, these

provisions establish that direct actions to enforce EU 261 rights

are limited to courts in EU Member States. We agree. To begin,

the language we’ve quoted from Paragraph 22 of the preamble

summarizes the two important features of the regulation’s

enforcement regime. First, Paragraph 22 mentions the obligation of each EU Member State to designate an administrative

body to ensure compliance and enforcement of the regulation.

(These are the NEBs, though EU 261 doesn’t specifically refer

to them as such.) Second, Paragraph 22 clarifies that the

existence of the administrative-enforcement system “should

not affect the rights of passengers and air carriers to seek legal

redress from courts under procedures of national law.” Id.

preamble ¶ 22.

The plaintiffs insist that this reference to “courts” and the

“procedures of national law” means that direct claims under

EU 261 can be brought in the courts of any country. That
No. 13-3521 13

reading ignores the broader context of this passage. As we’ve

noted, the first sentence of Paragraph 22 simply notes the duty

of Member States to designate an administrative body (an

NEB) to “supervise general compliance” and “carry out such

enforcement tasks” in orderto ensure airlines are meeting their

obligations under EU 261. The second sentence makes it clear

that the enforcement authority of the NEBs doesn’t affect the

rights of passengers or carriers to seek redress in courts under

national law. In other words, the administrative enforcement

of EU 261 via a system of NEBs is not meant to displace the

authority of courts within Member Nations to adjudicate

infringement claims under the procedures of their own

national law.

But does this language also mean that judicial enforcement

of EU 261 lies exclusively in the courts of EU Member Nations?

Delta argues that it does, when read together with the enforcement provisions of the regulation and in light of background

principles of EU treaty law.

As we’ve noted, Article 16 provides that passengers may

look to two different fora to resolve infringement claims under

EU 261: (1) an administrative entity in a Member State designated as the “body responsible for the enforcement of this

Regulation” (the NEBs); and (2) “any other competent body

designated by a Member State.” EU 261 art. 16 (emphasis added).

By implication, the phrase “any other competent body designated by a Member State” necessarily includes the courts of EU

Member States. Paragraph 22 of the preamble and the directeffect principle of EU law make that much clear. So the

enforcement language in EU 261 tells passengers to take their
14 No. 13-3521

infringement claims to an administrative or judicial forum

within or designated by the relevant EU Member State forthat

purpose. No one argues that the United Kingdom, France, or

any other EU Member State has “designated” the U.S. courts

as a “competent body” for the enforcement of EU 261 claims.

The plaintiffs counterthat Article 15 of the regulation refers

more generally to “proceedings before the competent courts or

bodies.” Id. art. 15(2). In their view this language suggests that

an enforcement action under EU 261 may be brought in a

competent court anywhere in the world. That’s an implausible

interpretation. Recall that Article 15 prohibits the waiver or

limitation of EU 261 rights by contract. Id. art. 15(1). It also

states that if an airline’s contract of carriage purports to waive

or limit the passenger’s EU 261 rights, or if an airline fails to

inform passengers of their rights and a passenger accepts

inferior compensation as a result, the passenger “shall still be

entitled to take thenecessaryproceedings before the competent

courts or bodies in order to obtain additional compensation.”

Id. art. 15(2).

The plaintiffs read this reference to “competent courts or

bodies” as authorizing private enforcement actions in any

competent court—either within or outside the EU. We think

that’s more weight than Article 15(2) can bear. When read

together and harmonized with the more limited enforcement

scheme set forth in Article 16(2), the phrase “competent courts

or bodies” as used in Article 15(2) is best understood as a

reference to competent courts or bodies within or designated

by an EU Member Nation, as authorized by Article 16.
No. 13-3521 15

This interpretation of EU 261 accords with several background principles of EU law. Take the principle of

“subsidiarity”: 

Under the principle of subsidiarity, in areas

which do not fall within its exclusive competence, the Union shall act only if and in so far as

the objectives of the proposed action cannot be

sufficiently achieved by the Member States,

either at central level or at regional and local

level, but can rather, by reason of the scale or

effects of the proposed action, be better achieved

at Union level. 

Consolidated Version of the Treaty on European Union art. 5,

Mar. 30, 2010, 2010 O.J. (C 83) 13, 18. Determining the proper

forum for court actions has traditionally been left to EU Member States: 

The [European Court of Justice] has consistently

held that, in the absence of Community rules

governing the matter, it is for the domestic legal

system of each Member State to designate the

courts and tribunals having jurisdiction and to

lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law. 

Case C-268/06, Impact v. Minister for Agriculture & Food &

Others, 2008 E.C.R. I-2483, I-2550–51 (collecting authority). The

authority to designate the proper fora for enforcement actions

under EU 261 resides with EU Member States in accordance

with their own national law.
16 No. 13-3521

Invoking the principle of EU law known as “legal certainty,” Delta also argues that divergent interpretations of

EU 261 by courts in nonmember countries would undermine

the EU’s attempt to harmonize the law within its jurisdiction.

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.” Case C-344/04, Int’l Air Transp. Ass’n v. Dep’t for Transp.,

2006 E.C.R. I-403, I-472.

The European Court of Justice (“ECJ”) plays an important

role in ensuring that EU laws are applied uniformly across

Member States. See id. at I-461 (“The main purpose of the

jurisdiction conferred on the [ECJ] ...is to ensure that Community law is applied uniformly by national courts.”); Court of

Justice of the European Union, EUROPEAN UNION, http://europa.

eu/about-eu/institutions-bodies/court-justice/index_en.htm

(last visited April 10, 2015) (“The Court of Justice interprets EU

law to make sure it is applied in the same way in all EU

countries.”). The ECJ is empowered to make preliminary

decisions on the validity and interpretation of EU laws. See

Consolidated Version of the Treaty Establishing the European

Community art. 234, Dec. 24, 2002, 2002 O.J. (C 325) 33, 127.

Any court or tribunal of a Member State can ask the ECJ for a

ruling, and the ECJ is required to entertain these requests

“[w]here any such question is raised in a case pending before

a court or tribunal of a Member State against whose decisions

there is no judicial remedy under national law.” Id. at 127–28.
No. 13-3521 17

Because U.S. courts cannot certify questions of EU law to

the ECJ, Delta argues that interpreting EU 261 to allow direct

claims in nonmember courts would undermine the consistent

application of the regulation in violation of the principle of

legal certainty. We think this argument proves too much—it

would foreclose any decision of a U.S. court applying EU law.

We’re not willing to go quite that far. Still, asking a U.S. court

to wade into an area of EU law that is fraught with uncertainty

risks offending principles of international comity. That is

particularly true when the claim created by foreign law is alien

to our own; our domestic law has no cause of action analogous

to EU 261. As we’ve noted, however, these concerns can be

more generally addressed underthe auspices of the doctrine of

forum non conveniens. See Clerides v. Boeing Co., 534 F.3d 623,

628 (7th Cir. 2008) (recognizing that “the avoidance of unnecessary problems ... in the application of foreign law” weighs in

favor of a dismissal under forum non conveniens). 

Ratherthan dictating the result here, the principles of legal

certainty and subsidiarity serve to reinforce our interpretation

of the text of EU 261 and the limited scope of its enforcement

regime. Accordingly, for the foregoing reasons, we conclude

that EU 261 is not judicially enforceable outside the courts of

EU Member States.7 The suit was properly dismissed.

AFFIRMED.

7 Dismissal was appropriate on this ground alone, so we need not address

Delta’s alternative argument based on ADA preemption.