# C_2019328EN.01003001.xml

| 30.9.2019 | EN | Official Journal of the European Union | C 328/30 |
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30.9.2019

EN

Official Journal of the European Union

C 328/30

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Reference for a preliminary ruling from High Court (Ireland) made on 26 July 2019 — Irish Ferries Ltd v National Transport Authority

(Case C-570/19)

(2019/C 328/34)

Language of the case: English

Referring court

High Court (Ireland)

Parties to the main proceedings

Applicant: Irish Ferries Ltd

Respondent: National Transport Authority

Questions referred

| A. | Applicability of the Regulation (1)







  1) | Does the Regulation (in particular Articles 18 and/or 19) apply in circumstances where passengers have made advance bookings and entered into transport contracts and where the passenger services are cancelled with a minimum of seven weeks' notice prior to the scheduled departure due to the delay in the delivery of a new vessel to the ferry operator? In that regard, are any (or all) of the following matters relevant to the applicability of the Regulation:






  a) | Delivery was ultimately delayed by 200 days; |
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A.

Applicability of the Regulation (1)

1)

Does the Regulation (in particular Articles 18 and/or 19) apply in circumstances where passengers have made advance bookings and entered into transport contracts and where the passenger services are cancelled with a minimum of seven weeks' notice prior to the scheduled departure due to the delay in the delivery of a new vessel to the ferry operator? In that regard, are any (or all) of the following matters relevant to the applicability of the Regulation:

a)

Delivery was ultimately delayed by 200 days;

| b) | The ferry operator had to cancel a full season of sailings; |
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b)

The ferry operator had to cancel a full season of sailings;

| c) | No suitable alternative vessel could be obtained; |
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c)

No suitable alternative vessel could be obtained;

| d) | Over 20,000 passengers were rebooked by the ferry operator on different sailings or refunded their fares; |
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d)

Over 20,000 passengers were rebooked by the ferry operator on different sailings or refunded their fares;

| e) | The sailings were on a new route being opened by the ferry operator with no similar alternative service on the route? |
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e)

The sailings were on a new route being opened by the ferry operator with no similar alternative service on the route?

| B. | Interpretation of Article 18 of the Regulation
  This question need only be answered if Article 18 is capable of applying.






  2) | Where a passenger is re-routed in accordance with Article 18 does a new transport contract come into existence such that the right to compensation under Article 19 is to be determined in accordance with that new contract rather than the original transport contract? |
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B.

Interpretation of Article 18 of the Regulation

This question need only be answered if Article 18 is capable of applying.

2)

Where a passenger is re-routed in accordance with Article 18 does a new transport contract come into existence such that the right to compensation under Article 19 is to be determined in accordance with that new contract rather than the original transport contract?

| 3) | a) | If Article 18 is applicable then if a sailing is cancelled and there was no alternative service operating on that route (i.e. no direct service between those two ports) does providing an alternative sailing on any other route or routes available and chosen by the passenger including by ‘landbridge’ (e.g., travelling from Ireland to the UK by ferry and then driving, with the fuel costs reimbursed to the passenger by the ferry operator, to a UK port with a connection to France and travelling from there to France with the passenger choosing each of the sailings) amount to ‘re-routing to the final destination’ for the purposes of Article 18? If not, what criteria are to be employed in determining if a re-routing is ‘under comparable conditions’? |
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3)

a)

If Article 18 is applicable then if a sailing is cancelled and there was no alternative service operating on that route (i.e. no direct service between those two ports) does providing an alternative sailing on any other route or routes available and chosen by the passenger including by ‘landbridge’ (e.g., travelling from Ireland to the UK by ferry and then driving, with the fuel costs reimbursed to the passenger by the ferry operator, to a UK port with a connection to France and travelling from there to France with the passenger choosing each of the sailings) amount to ‘re-routing to the final destination’ for the purposes of Article 18? If not, what criteria are to be employed in determining if a re-routing is ‘under comparable conditions’?

| b) | If there is no alternative sailing on the cancelled route, such that the affected passenger cannot be accommodated on a direct sailing from the original port of embarkation to the final destination as set out in the transport contract, is the carrier required to pay any additional costs incurred by a re-routed passenger in travelling to and from the new port of embarkation and/or to and from the new port of destination? |
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b)

If there is no alternative sailing on the cancelled route, such that the affected passenger cannot be accommodated on a direct sailing from the original port of embarkation to the final destination as set out in the transport contract, is the carrier required to pay any additional costs incurred by a re-routed passenger in travelling to and from the new port of embarkation and/or to and from the new port of destination?

| C. | Interpretation of Article 19 of the Regulation






  4) | a) | Can Article 19 apply when the voyage has in fact already been cancelled at least seven weeks prior to the scheduled departure? If Article 19 does apply, does it apply where Article 18 has been applied and the passenger has been re-routed at no additional cost and/or reimbursed and/or has chosen a later sailing? |
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C.

Interpretation of Article 19 of the Regulation

4)

a)

Can Article 19 apply when the voyage has in fact already been cancelled at least seven weeks prior to the scheduled departure? If Article 19 does apply, does it apply where Article 18 has been applied and the passenger has been re-routed at no additional cost and/or reimbursed and/or has chosen a later sailing?

| b) | If Article 19 does apply what is the ‘final destination’ for the purposes of Article 19. |
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b)

If Article 19 does apply what is the ‘final destination’ for the purposes of Article 19.

| 5) | If Article 19 is capable of applying:






  a) | How is the period of delay to be measured in such circumstances? |
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5)

If Article 19 is capable of applying:

a)

How is the period of delay to be measured in such circumstances?

| b) | How is the price within the meaning of Article 19 to be calculated when determining the level of compensation payable and in particular does it include costs referable to extras (e.g., cabins, kennels and premium lounges)? |
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b)

How is the price within the meaning of Article 19 to be calculated when determining the level of compensation payable and in particular does it include costs referable to extras (e.g., cabins, kennels and premium lounges)?

| D. | Interpretation of Article 20(4)






  6) | If the Regulation does apply then do the circumstances and considerations outlined in Q.1 amount to ‘extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken’ for the purposes of Article 20(4) of the Regulation? |
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D.

Interpretation of Article 20(4)

6)

If the Regulation does apply then do the circumstances and considerations outlined in Q.1 amount to ‘extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken’ for the purposes of Article 20(4) of the Regulation?

| E. | Interpretation of Article 24






  7) | Does Article 24 have the effect of imposing a mandatory obligation on any passenger seeking to benefit from compensation under Article 19 of the Regulation to make a complaint within two months from the date on which the service was performed or should have been performed? |
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E.

Interpretation of Article 24

7)

Does Article 24 have the effect of imposing a mandatory obligation on any passenger seeking to benefit from compensation under Article 19 of the Regulation to make a complaint within two months from the date on which the service was performed or should have been performed?

| F. | Interpretation of Article 25






  8) | Is the jurisdiction of the national competent body responsible for the enforcement of the Regulation limited to sailings involving the ports specified in Article 25 of the Regulation or may it also extend to a return sailing from the port of another Member State to the state of the national competent body? |
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F.

Interpretation of Article 25

8)

Is the jurisdiction of the national competent body responsible for the enforcement of the Regulation limited to sailings involving the ports specified in Article 25 of the Regulation or may it also extend to a return sailing from the port of another Member State to the state of the national competent body?

| G. | The validity of the Decision and the Notices






  9) | a) | What principles and rules of EU law should the referring court apply in assessing the validity of the Decision and/or the Notices of the national enforcement body by reference to Article 16, 17, 20 and/or 47 of the Charter (2) and/or principles of proportionality, legal certainty, and equal treatment? |
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G.

The validity of the Decision and the Notices

9)

a)

What principles and rules of EU law should the referring court apply in assessing the validity of the Decision and/or the Notices of the national enforcement body by reference to Article 16, 17, 20 and/or 47 of the Charter (2) and/or principles of proportionality, legal certainty, and equal treatment?

| b) | Is the test of unreasonableness that should be applied by the domestic court that of manifest error? |
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b)

Is the test of unreasonableness that should be applied by the domestic court that of manifest error?

| H. | Validity of Regulation 1177/2010
  This question will only arise depending on the answers to the previous questions.






  10) | Is Regulation 1177/2010 valid as a matter of EU law having regard in particular to:






  a) | Articles 16, 17, and 20 of the Charter? |
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H.

Validity of Regulation 1177/2010

This question will only arise depending on the answers to the previous questions.

10)

Is Regulation 1177/2010 valid as a matter of EU law having regard in particular to:

a)

Articles 16, 17, and 20 of the Charter?

| b) | The fact that airline operators have no obligation to pay compensation if it informs the airline passenger of the cancellation at least two weeks before the scheduled time of departure [Article 5(1) (c)(i) of Regulation 261/2004 (3)]? |
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b)

The fact that airline operators have no obligation to pay compensation if it informs the airline passenger of the cancellation at least two weeks before the scheduled time of departure [Article 5(1) (c)(i) of Regulation 261/2004 (3)]?

| c) | The principles of proportionality, legal certainty and equal treatment? |
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c)

The principles of proportionality, legal certainty and equal treatment?

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(1)  Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ 2010, L 334, p. 1).

(2)  Charter of Fundamental Rights of the European Union (OJ 2012, C 326, p. 391).

(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).

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