Opinion of the Advocate General — ECLI:EU:C:2012:161
Date: 2012-03-22
Language of the case: English
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Ireland

Summary — Judgment of the Court (Third Chamber), 31 January 2013 1. Transport — Air transport — Regulation No 261/2004 — Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights — Failure of an air carrier to comply with its obligation to provide care — Right of passengers to compensation — Scope (European Parliament and Council Regulation No 261/2004, Arts 5(1)(b) and 9) 2. Transport — Air transport — Regulation No 261/2004 — Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights — Extraordinary circumstances — Notion — Closure of airspace as a result of a volcanic eruption — Inclusion — Exemption of air carriers from their obligation to provide care to passengers — None (European Parliament and Council Regulation No 261/2004, recitals 1 and 2, Arts 5(1)(b) and 9) 3. Transport — Air transport — Regulation No 261/2004 — Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights — Obligation to provide care for passengers in the event of cancellation of a flight due to extraordinary circumstances — Scope — Temporal or monetary limitation — None (European Parliament and Council Regulation No 261/2004, Arts 5(3) and 9) 4. Transport — Air transport — Regulation No 261/2004 — Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights — Obligation to provide care for passengers in the event of cancellation of a flight due to extraordinary circumstances — Failure — Right to compensation — Scope (European Parliament and Council Regulation No 261/2004, Arts 5(1)(b) and 9) 5. Transport — Air transport — Regulation No 261/2004 — Measures to assist, take care of and compensate passengers in the event of cancellation of, or a long delay to, a flight — Conditions of exercise — Montreal Convention — Not applicable (European Parliament and Council Regulation No 261/2004; Montreal Convention 1999) 6. Transport — Air transport — Regulation No 261/2004 — Measures to assist, take care of and compensate passengers in the event of cancellation of, or a long delay to, a flight — Obligation to provide care for passengers in the event of cancellation of a flight due to extraordinary circumstances — Infringement of the principle of non-discrimination — None (European Parliament and Council Regulation No 261/2004, Arts 5(1)(b) and 9) 1. An air passenger may invoke before a national court the failure of an air carrier to comply with its obligation, laid down in Articles 5(1)(b) and 9 of 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, to provide care in order to obtain compensation from that air carrier for the costs which it should have borne under those provisions. (see para. 24) 2. Article 5 of 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 must be interpreted as meaning that circumstances such as the closure of part of European airspace as a result of the eruption of a volcano constitute ‘extraordinary circumstances’ within the meaning of that regulation which do not release air carriers from their obligation laid down in Articles 5(1)(b) and 9 of Regulation No 261/2004 to provide care. The meaning and scope of terms for which EU law provides no definition must be determined in accordance with their usual meaning in everyday language, account also being taken of the context in which they occur and the purpose of the rules of which they form part. In that regard, in the context of air transport, the terms ‘extraordinary circumstances’ refer to an event which is not inherent in the normal exercise of the activity of the carrier concerned and is beyond the actual control of that carrier on account of its nature or origin. In other words, they relate to all circumstances which are beyond the control of the air carrier, whatever the nature of those circumstances or their gravity. The obligation on the air carrier to provide care under Article 9 of Regulation No 261/2004 is necessary whatever the event which has given rise to the cancellation of the flight. It is clear from recitals 1 and 2 in the preamble to that regulation that the regulation aims to ensure a high level of protection for passengers and takes account of the requirements of consumer protection in general, inasmuch as cancellation of flights causes serious inconvenience to passengers. (see paras 28, 29, 31, 34, operative part 1) 3. No limitation, whether temporal or monetary, of the obligation to provide care to passengers in extraordinary circumstances within the meaning of Article 5(3) of 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 is apparent from the wording of that regulation. It follows from Article 9 of that regulation that all the obligations to provide care to passengers whose flight is cancelled are imposed, in their entirety, on the air carrier for the whole period during which the passengers concerned must await their re-routing. In that regard, the provision of care to such passengers is particularly important in the case of extraordinary circumstances which persist over a long time and it is precisely in situations where the waiting period occasioned by the cancellation of a flight is particularly lengthy that it is necessary to ensure that an air passenger whose flight has been cancelled can have access to essential goods and services throughout that period. (see paras 40-42) 4. Articles 5(1)(b) and 9 of 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 must be interpreted as meaning that, in the event of cancellation of a flight due to ‘extraordinary circumstances’ of a particularly lengthy duration, the obligation to provide care to air passengers laid down in those provisions must be complied with, and the validity of those provisions is not affected. In this respect, the fact that the obligation to provide care entails undoubted financial consequences for air carriers is not contrary to the principle of proportionality, since those consequences cannot be considered disproportionate to the aim of ensuring a high level of protection for passengers. The importance of the objective of consumer protection, which includes the protection of air passengers, may justify even substantial negative economic consequences for certain economic operators. In addition, air carriers should, as experienced operators, foresee costs linked to the fulfilment, where relevant, of their obligation to provide care and, furthermore, may pass on the costs incurred as a result of that obligation to airline ticket prices. However, an air passenger may only obtain, by way of compensation for the failure of the air carrier to comply with its obligation referred to in Articles 5(1)(b) and 9 of Regulation No 261/2004 to provide care, reimbursement of the amounts which, in the light of the specific circumstances of each case, proved necessary, appropriate and reasonable to make up for the shortcomings of the air carrier in the provision of care to that passenger, a matter which is for the national court to assess. (see paras 47-51, 66, operative part 2) 5. The standardised and immediate compensatory measures laid down by 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, are not among those whose institution is governed by the Montreal Convention for the Unification of Certain Rules for International Carriage by Air. Therefore, there is no need to assess the validity of the aforesaid provisions in the light of the principle of an equitable balance of interests referred to in that convention. (see paras 52, 53) 6. Articles 5(1)(b) and 9 of 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, which oblige air carriers to provide care of passengers in extraordinary circumstances, do not infringe the principle of non-discrimination. The situation of undertakings operating in the different transport sectors is not comparable since the different modes of transport, having regard to the manner in which they operate, the conditions governing their accessibility and the distribution of their networks, are not interchangeable as regards the conditions of their use. In those circumstances, the EU legislature was able to establish rules providing for a level of customer protection that varied according to the transport sector concerned. (see paras 56-58)