Opinion of the Advocate General — ECLI:EU:C:2021:177
Date: 2021-03-04
Language of the case: English
Subject matter: Transport;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Ireland

summary is that a new vessel the "W.B. Yeats", which was due to 
be delivered to Irish Ferries Ltd ("IFL") in May/June 2018 for a new passenger and freight service 
between Dublin and Cherbourg, was not ultimately delivered until December 2018. This caused IFL, 
who had taken advance bookings since October 2017, initially to cancel on 20 April 2018 the sailings 
scheduled for 12th July - 29th July 2018, and further on 11 June 2018 (after notification by the 
Shipyard of further delays in delivery) to cancel scheduled sailings for the remainder of the summer 
season. IFL was unable to charter a replacement vessel. It offered and arranged for nearly all of the 
20,000 impacted passengers alternative sailings (taken up by 82%) or "re-routing" through the UK 
(taken up by 3%), plus re-imbursement of certain additional expense, or full re-imbursement of the 
fare (taken up by 15%), plus a voucher of €150 for sailings with IFL in 2019.
3. The National Transport Authority ("the NTA") as the body designated under Irish law responsible 
for enforcement of the Maritime Regulation investigated these events. By a decision confirmed on 
25 January 2019 the NTA determined that the Maritime Regulation applied to the cancellations and 
that IFL was failing to comply with its obligations under Articles 18 and 19. The NTA required IFL to 
comply with the measures contained in an Article 18 Notice (requiring IFL to reimburse any 
additional costs incurred by "re-routed" passengers) and an Article 19 Notice (requiring IFL to pay 
compensation to impacted passengers who had requested compensation from it).
4. IFL disputes that the Maritime Regulation, or Articles 18 or 19, apply in circumstances where the 
cancellations occurred some weeks before the scheduled sailings. IFL also disputes the 
interpretation by NTA of the Maritime Regulation and in particular Articles 18, 19 and 20, and its 
application of the same to the circumstances of this case. IFL asserts that Article 19 had no 
application inter alia because the cancellations were caused by "extraordinary circumstances" within 
the meaning of Article 20(4). IFL has also challenged the validity of the Maritime Regulation under 
European law.
5. This dispute gives rise to numerous questions as to the scope, application and proper 
interpretation of the Maritime Regulation, including its validity under EU law, on which there are as 
yet no decisions of the Court of Justice of the European Union ("GEU") giving guidance to domestic 
courts. I consider that rulings on these questions are necessary to enable the Irish High Court to 
determine these proceedings. I also believe that preliminary rulings will be particularly useful as the 
questions raised are new and of general interest for the uniform application of Maritime Regulation.
6. The facts are substantially agreed between the parties, and insofar as they are not agreed this is 
indicated in what follows, and I do not consider such disagreements to be material for the purposes 
of the reference. While many questions are raised, this reflects a lack of definition of key words and 
phrases in the Maritime Regulation. The number of questions originally proposed was reduced 
following legal argument. Also, depending on what answers are given to earlier questions, some of 
the questions may not need to be answered. Both Counsel emphasised the parties' desire to have all 
questions dealt with on one reference in the interests of time-saving and efficiency, and particularly 
as the case concerns passenger rights arising over a year ago. I respectfully agree with Counsel.
7. As there is no GEU jurisprudence on the Maritime Regulation to guide this court I did not consider 
it appropriate or an efficient use of court time to invite argument before me on all the questions 
raised, and in the circumstances I have refrained from expressing any provisional opinion as to the 
appropriate answers or principles to be applied.
Mr. Justice Robert Haughton, Judge of the Irish High Court 
22ndJu!y, 2019
22 July 2019
I. The Referring Court or Tribunal
1. The High Court of Ireland. koneill@eourts.ie; Rdermodv@court$.ie; 
hiahcourtcentraloffice@courts.ie
II. The Parties to the Main Proceedings and their Representation
2. The applicant is Irish Ferries Limited (Irish Ferries), P.O. Box 19, Alexandra Road, 
Ferryport, Dublin 1, Ireland. It is a shipping company operating Ro-Pax (i.e., roll-on/roll 
off passenger) ferries between: (a) Ireland and Britain; and (b) Ireland and France. It is 
represented by A&L Goodbody, 25-28 North Wall Quay, Dublin D01 H104, Ireland 
(V.Power, E.Roberts, T.O'Donnell, B.McGrath (Irish solicitors), C.Donnelly B.L. and 
P.Gallagher S.C. (Irish barristers)).
3. The respondent is the National Transport Authority (NTA), Dun Sceine, Harcourt Lane, 
Dublin 2, Ireland. It is an Irish statutory body and the national enforcement body in 
Ireland for Regulation (EU) 1177/20101 (Regulation) which is the EU legal instrument 
at issue in these proceedings. The NTA is represented by McCann FitzGerald, 
Riverside One, Sir John Rogerson's Quay, Dublin 2, Ireland (M.Doyle, K Quigley, E 
O’Hanrahan (Irish solicitors), S.Murray B.L. and D.McGrath S.C. (Irish barristers)).
III. The Subject Matter of the Dispute in the Main Proceedings and an account of the 
facts on which the questions are based
Subject matter of the dispute
4. The proceedings involve the possible application of the Regulation to the cancellation 
of all 2018 sailings of the ferry, the W.B. Yeats (the Vessel), between Ireland and 
France. This followed the non-delivery of the €144m Vessel by a German shipyard 
despite a Contractual Date of Delivery of 26 May 2018. Jt resulted in Irish Ferries 
having to: (a) accommodate over 20,000 passengers booked on sailings throughout a 
summer season on various other sailings; and (b) refund a small proportion of the
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 L 334, 17.12.2010, p. 1-16; ELI: httpV/data euroca eu/eli/req/2010/1177/oi. All 
legislative references are references to the Regulation unless otherwise stated.
M-46212224.1 1
passengers who chose to cancel their sailings. If the Regulation does apply to the 
cancellation of the sailings then various questions arise concerning, principally, Articles 
18, 19, 24 and 25 of the Regulation.
Factual Background
5. In 2016, Irish Ferries' parent, Irish Continental Group pic (ICG), contracted with 
Flensburger Schiffbau-Gesellschaft (Shipyard) (established in 1872) to build a Ro-Pax 
ferry (i.e., the Vessel). Irish Ferries and ICG do not themselves build, and have never 
built, ships. The Shipyard was selected by ICG after a 17-month review of more than 
10 shipyards worldwide, based on information from and visits to the shipyards, 
references and expert advice.
6. The Vessel was to operate various routes including a new continuous return service 
between Dublin (Ireland) and Cherbourg (France) (the Route). Services on the Route 
were to commence in, and operate throughout, the summer season of 2018 (2018 
Season). The Vessel would be the only vessel operating such a service on the Route. 
This is not uncommon with many ferry services from Ireland being served by just one 
ferry company with only one ferry on that route.2
7. Because of the sailing time (circa 18 hours) and the need to load/discharge 
passengers/vehicles, the Vessel would sail on alternate days from Dublin and 
Cherbourg. It is not possible, given the distance, to operate a service with one ship 
offering daily departures from the same port.
8. Irish Ferries planned to operate this Vessel on the Route on alternate days to another 
vessel (the Oscar Wilde), which it operated during the 2018 Season on the Rosslare 
(Ireland) - Cherbourg route and the Rosslare - Roscoff route, thereby offering a daily 
service between Ireland and France, albeit from/to different Irish ports.3
9. The Shipyard agreed in a legally binding contract dated 27 May 2016 (based on the 
Baltic and International Maritime Council standard shipbuilding contract (i.e., BIMCO 
NEWBUILDCON)) to deliver the Vessel fully certified to ICG at the Shipyard on or
2 E.g., Cork (Ireland)-Roscoff (France) by Brittany Ferries; Cork-Santander (Spain) by Brittany Ferries;
Rosslare (Ireland)-Fishguard (UK) (Stena); Rosslare-Cherbourg by Stena; Rosslare-Pembroke Dock (UK) by
Irish Ferries; and Dublin-Liverpool (UK) by P&O Ferries.
3 In fact, the vast majority of passengers on the cancelled sailings on the W.B. Yeats opted to sail on the
Oscar Wilde.
22 July 2019
M-46212224.1 2
before 26 May 2018. The Shipyard also issued a press release stating that the Vessel 
“will be delivered in May 2018". The Vessel would then sail to Dublin to commence 
service.
10. Irish Ferries planned to take bookings for the 2018 Season from the end of October
2017. In the context of this service, holidaymakers (the overwhelming majority of 
passengers on the Vessel) tend to book months in advance. Irish Ferries says that it is 
standard practice that shipping companies globally and in Ireland accept advance 
bookings before vessels are delivered by shipyards or, in the case of charters, the 
vessel's owners, and that otherwise they would incur substantial losses from operating 
under-utilised expensive assets.
11. In January 2017, the Shipyard stated orally to Irish Ferries that the expected delivery 
date of the Vessel would be no later than 22 June 2018 and possibly as early as 15 
June 2018.
12. On 19 October 2017, Irish Ferries asked the Shipyard if they were “still safe to assume” 
a delivery from the Shipyard on 15 June 2018. This would enable sailings to 
commence on 12 July 2018 to reconfirm Irish Ferries commenced taking bookings on 
27 October 2017 for the 2018 Season. On 1 November 2017, the Shipyard confirmed 
in writing the scheduled delivery date as 22 June 2018 and it is Irish Ferries’ position 
that this would, based on Irish Ferries’ experience with other vessels entering into 
service (whether new or new to Irish Ferries), have allowed ample time for the Vessel 
to be ready for the first scheduled sailing on 12 July 2018.
13. Irish Ferries’ position, which is based on experience over many years, is that it was 
clear to it that delivery of the Vessel at the Shipyard on 22 June 2018 would have 
allowed Irish Ferries ample time for the Vessel to be ready for the first sailing on 12 
July 2018. This latitude of 20 days between delivery of the Vessel and the Vessel 
entering into service was in line with, or longer than, previous lead-in times for other 
vessels introduced into service by Irish Ferries. For example, the last vessel that Irish 
Ferries brought into service was the Epsilon and that vessel entered service 10 days 
after arrival in Dublin.
14. Irish Ferries proceeded with an expensive and extensive international marketing 
campaign about the Vessel in Ireland and continental Europe to attract custom for
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M-46212224.1 3
2018. Irish Ferries says that they did so confidently expecting the Vessel to arrive in 
time and that they would not have done so had it any concern or doubt.
15. On 18 April 2018, the Shipyard informed Irish Ferries that the Vessel would not be 
delivered at the Shipyard until on or about 13 July 2018. Thus, sailings could not 
commence on 12 July 2018 as scheduled and some later sailings would also be 
affected by virtue of, for example, the voyage to Dublin and berthing trials en route. It 
is Irish Ferries’ position that the delay in delivery was a “shock”. The NTA question 
whether the delay could have been a “shock”. This is not a matter which needs to be 
resolved by the CJEU.
16. The Shipyard explained that this delay was due to work being conducted by third party 
accommodation outfitters which had been sub-contracted by the Shipyard (and who 
were, therefore, persons who had no contractual link with Irish Ferries). Irish Ferries 
says that this delay was entirely outside Irish Ferries' control and was neither foreseen 
nor anticipated by it but it would be likely to cause damage to its reputation and 
disruption for all concerned. The Shipyard also referred to in its email of 18 April 2018 
of “the possibility of later delivery, particularly as a result of negative developments in 
the outfitting of the public spaces”.
17. Irish Ferries’ other vessels were all deployed, with thousands of long-standing 
bookings, so it was not feasible to reschedule any of those other vessels to the Route 
as that would have displaced thousands more passengers.
18. Irish Ferries therefore immediately sought to charter an alternative vessel suitable to 
operate the Route (bearing in mind the international safety rules which require a 
particular type of vessels for that Route). Irish Ferries contacted a leading international 
shipbroker who confirmed in writing that no suitable ships were available. Irish Ferries 
says that this was unsurprising as idle ferries with capacity for c.1800 passengers with 
c.435 berths are scarce or non-existent and all the scarcer in summer months.
19. Having established by 20 April 2018 that no suitable vessel could be sourced, Irish 
Ferries had to cancel sailings of the Vessel until the revised delivery date plus a leeway 
period to have the Vessel ready. Irish Ferries announced on the same day that it would 
cancel sailings from 12 July 2018 to 29 July 2018 (This is referred to in these 
proceedings as the First Cancellation).
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M-46212224.1 4
20. This First Cancellation attracted widespread commentary not only in the general media, 
but in the specialist maritime and financial media. Irish Ferries says that they had no 
choice because of the Shipyard's failure to deliver the Vessel, there being no other 
identical service on the Route and no other suitable vessel being available.
21. In relation to this First Cancellation, Irish Ferries acted to accommodate passengers by, 
in particular: (a) engaging with all the passengers, giving them twelve weeks’ notice of 
cancellation) (b) opened its call centres for longer with extra staff; (c) offered all 
passengers (i) an immediate no-quibble reimbursement in full (i.e., a Reimbursement 
Offer) or (ii) the opportunity to rebook on alternative sailings (Alternative Sailings). 
Irish Ferries says that passengers were given the opportunity to avail of alternative 
sailings of their choice. The NTA does not accept that passengers had the choice 
suggested by Irish Ferries. . As there was no other identical service on the Route, Irish 
Ferries provided a range of services with various ports of departure and arrival 
(including in some instances Dublin and Cherbourg and in many instances Rosslare 
and Roscoff) directly between Ireland and France (e.g., the day before or the day after 
their original planned sailing - or any other date - subject to capacity) or indirectly 
through Landbridge. Irish Ferries did not offer landbridge as an option to all 
passengers affected by the First Cancellation but facilitated those passengers who 
wished to travel by Landbridge. The extent to which Landbridge was offered to 
passengers affected by the First Cancellation is a matter of fact which the High Court 
will ultimately have to determine to the extent that it is relevant to the resolution of the 
issues arising in the proceedings. Passengers who were re-routed were given a €150 
voucher for use on the Ireland-France service in 2019; and (d) Irish Ferries worked with 
passengers to minimise disruption
22. With regard to accommodating passengers on alternative Irish Ferries vessels, Irish 
Ferries had reserved space on another vessel the Oscar Wilde. The parent company 
of Irish Ferries, ICG, stated in its trading update on 10 May 2018 that “the company 
activated its contingency plan of releasing capacity on the ‘Oscar Wilde’ sailings to 
France which had been held back in case there was any delay in the arrival of the ‘WB 
Yeats’.” Irish Ferries say that ferry companies usually reserve space for all means of 
contingencies occurring.
23. Where impacted passengers were rerouted to and from Rosslare (rather than Dublin) 
and/or to and from Roscoff (rather than Cherbourg), Irish Ferries did not offer to
22 July 2019
M-46212224 1 5
reimburse any additional costs incurred by such passengers in travelling to and from 
Rosslare rather than Dublin and to and from Roscoff rather than Cherbourg 
(“Additional Costs”). Irish Ferries disputes this, given its position as set out below and 
as will be set out further in observations on the applicability and application of the 
Regulation. Further, Irish Ferries says that not all passengers incurred any additional 
costs, given that certain passengers were located closer to Rosslare and were 
holidaying closer to Roscoff than Cherbourg.
24. On 9 May 2018, the NTA wrote to Irish Ferries about the First Cancellation: (a) stating 
that the NTA was examining the circumstances of this First Cancellation "to establish 
how the Regulation should be applied in this instance"; (b) noting that "Irish Ferries 
have concluded that the cancellation is due to extraordinary circumstances"; and (c) 
asking Irish Ferries to provide an explanation of the reasons why these were 
extraordinary circumstances and beyond the control of Irish Ferries. Irish Ferries made 
a detailed submission to the NTA in respect of the First Cancellation.
25. Irish Ferries says that Landbridge is generally regarded by ferry companies and users 
as interchangeable in certain circumstances with direct services. Irish Ferries also 
says that its competitors also operate Landbridge, and that the same vessels and 
contracts of carriage are used for both Landbridge and direct sailings
26. On 1 June 2018, the NTA wrote to Irish Ferries seeking information on Irish Ferries' 
compliance with Article 18. On 8 June 2018, Irish Ferries responded and an exchange 
of correspondence followed.
27. On 11 June 2018, the Shipyard notified Irish Ferries that the Vessel would be further 
delayed - until some unspecified time in September. This caused Irish Ferries to cancel 
all scheduled sailings after 30 July 2018 (i.e., the entirety of the 2018 Season was 
cancelled) (Second Cancellation). Ultimately, the Vessel was not delivered until 12 
December 2018, some 200 days late.
28. As with the First Cancellation, the Second Cancellation arose from delays by a sub­
contractor to the Shipyard who was unconnected with Irish Ferries and was, Irish 
Ferries asserts, outside of its control. The Shipyard explained that this delay was 
mainly due to electrical cabling and delays in the delivery of interior components for 
public areas and on the electrical system installation in the hull and deckhouse (work
22 July 2019
M-46212224.1 6
22 July 2019
which was undertaken by a long-established reputable global electrical sub-contractor 
to the Shipyard).
29. It was not possible for Irish Ferries to operate the Vessel as: (a) it could not lawfully sail 
without the outstanding work completed because it would not be certified by the 
authorities and, in any event, (b) the unfinished Vessel remained under the Shipyard's 
ownership and control. Irish Ferries therefore sought immediately to charter an 
alternative vessel suitable to operate the Route, but none was available.
30. The Second Cancellation created very serious consequences. The entire Summer 
2018 season was cancelled. Over 20,000 passengers were affected by the First 
Cancellation and Second Cancellation.
31. Following notification of this delay, and having contacted shipbrokers, Irish Ferries 
contacted the NTA, passengers, and made an announcement to the Irish and London 
Stock Exchanges.
32. Irish Ferries acted promptly to accommodate affected passengers by, for example: (a) 
announcing the Second Cancellation as soon as it had confirmed that it was not 
possible to charter an alternative vessel; (b) facilitating contact with all the passengers;4 
(c) extending call centres' hours and deploying more staff; (d) giving at least 7 weeks' 
notice to the passengers, with many passengers given up to 12 weeks’ notice ; (e) 
offering passengers the option to cancel and receive a full immediate reimbursement 
(i.e., the Reimbursement Offer); (f) offering passengers the possibility of sailing on 
alternative routes to France (without reimbursement of Additional Costs where they 
arose);5 (g) re-routing by way of "Landbridge" through Britain and Irish Ferries says 
that passengers could choose from a number of different Landbridge options, and 
could leave from any Irish ferry port and make their way to ports in France, such as 
Cherbourg, Roscoff, Calais, and Caen (with the fuel costs for crossing Britain being 
reimbursed to the passenger) and (h) a voucher of €150 would be provided to
4 It succeeded in doing so, apart from one lead passenger (out of 5,746 bookings (there was often more than 
one passenger for each booking)) whom Irish Ferries was unable to contact and who had made no contact 
with Irish Ferries but whom Irish Ferries refunded in full to the address given.
5 E.g., on the Oscar Wilde the day before or the day after the original planned sailing on the W.B. Yeats or 
any other date of the passenger's choosing subject to availability, as Irish Ferries had held back capacity on 
the Oscar Wilde.
M-46212224.1 7
22 July 2019
passengers to be used in respect of sailings on Irish Ferries' Ireland-France services in
2019.
33. Irish Ferries says that they accommodated passengers wherever possible (at the 
height of the Summer season) by re-arranging passengers' itineraries and placing 
courtesy gifts to passengers in their cabins on rescheduled Irish Ferries sailings. In 
any event, Irish Ferries says that they worked with passengers to make whatever 
arrangements would minimise the disruption to their travel plans.
34. The vast majority of passengers availed of the Alternative Sailings . 82% of passengers 
chose alternative sailings with Irish Ferries or other carriers while 3% chose Landbridge 
with the other 15% accepting a full reimbursement.
35. Passengers were re-routed on alternative routes: (a) using Irish Ferries' alternative 
sailings on (i) the Oscar Wilde or (ii) Dublin and Cherbourg (on the Epsilon which was 
scheduled to operate only once a week unlike the much larger W.B. Yeats which was 
to sail seven days a week on the Route); or (b) on another operator (i.e., another 
shipping company) which was paid for by Irish Ferries; or (c) using Landbridge with any 
additional ferry costs not charged to the passenger, any ferry savings made reimbursed 
to the passenger and, in the case of Landbridge, the fuel costs for crossing Britain as 
part of Landbridge were reimbursed to the passenger.
36. In some cases, passengers that were re-routed on alternative routes - whether 
Landbridge or alternative sailings - arrived at their destination on the same day as they 
had planned or even ahead of their original schedule. (Irish Ferries had provided 
worked examples of various Landbridge options to the NTA in that regard ahead of the 
latter making its decision on this matter.6) Irish Ferries’ position is that passengers who 
chose Landbridge were given a choice of routes so they could have sailed from their 
original port of departure (e.g., Dublin) and sailed to their original port of arrival (e.g., 
Cherbourg) or use any other combination of ports.
37. Irish Ferries voluntarily offered passengers alternative sailings from which the 
passengers could choose. Irish Ferries asserts that it let passengers choose (subject
For example - A passenger would depart Dublin at 14.15 (GMT) to arrive in Holyhead at 16:15 (GMT) (travel time: 2 hours 
and 30 minutes). Then at 16.15 (GMT) the passenger would drive for 6 hours to arrive at Dover at 22:15 (GMT). The passenger would 
depart Dover at 23:15 (GMT) (with P&O Ferries) and arrive in Calais at 01:45 (CET) (travel time: 2 hours and 30 minutes). Then at 
01.45 (CET) the passenger would drive to Cherbourg for 5 hours to arrive in Cherbourg at 06:45 (CET) 4 hours and 15 minutes earlier 
than they would have arrived on WB Yeats after a total journey that was 3 hours shorter.
M-46212224 1 8
to availability) a date before, on or after the original sailing date. The NTA does not 
accept this. Irish Ferries’ asserts that insofar as any passengers departed after their 
original sailing date and experienced a delay in arrival by reference to their original 
contract, this was due to the choice of those passengers to travel after their original 
sailing date. The NTA does not accept that all affected passengers were given a 
choice of alternative sailings before, on, or after the original sailing date. Irish Ferries 
asserts that passengers could have chosen a date before, or on, the original date 
subject to availability (whether direct or Landbridge). Irish Ferries also asserts that it 
put no temporal restriction on the sailing date chosen by the passenger and the only 
constraints were the passengers' choices and capacity on the sailings chosen by the 
passengers. The NTA does not accept this. These issues do not have to be 
determined by the CJEU.
38. For those passengers who availed of the Alternative Sailings: (a) any additional fares 
arising were not charged to the passengers but were paid by Irish Ferries; and (b) any 
difference in “on-board expenses” were reimbursed by Irish Ferries. For passengers 
availing themselves of Landbridge, they were reimbursed by Irish Ferries for the fuel for 
crossing Britain.
39. Passengers were in contact with the Irish Ferries’ call centre. They discussed their 
individual circumstances with Irish Ferries staff. Irish Ferries’ position is that, in all 
cases, changes to the booking were only made with the passenger’s agreement.
40.lt is the NTA’s position that Irish Ferries did not pay compensation to impacted 
passengers who have requested compensation for delay in arrival at the final 
destination as set out in the transport contract pursuant to the provisions of Article 19 of 
the Regulation. Irish Ferries disputes this, given, in particular, its position as to the 
applicability and application of the Regulation and its contention that Articles 18 and 19 
of the Regulation do not apply simultaneously.
41. The NTA formed a “Preliminary View” that was provided to Irish Ferries on 1 August 
2018. It records that the NTA formed the following preliminary views (which Irish 
Ferries deny):
i. the Regulation applied to the W.B. Yeats cancellations;
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M-46212224.1 9
ii. Article 18 of the Regulation applied to the W.B. Yeats cancellations and that 
certain requirements of Article 18 had not been complied with and set out 
the basis upon which this preliminary view was formed; and
iii. Article 19 of the Regulation applies to the cancellations of the W.B. Yeats 
sailings and that Irish Ferries had not discharged the burden of proving that 
“extraordinary circumstances” exist hindering the performance of the 
passenger service which could not have been avoided even if all reasonable 
measures had been taken such that Article 20(4) would dis-apply the 
provisions of Article 19.
42. Irish Ferries were given the opportunity to make a submission on the Preliminary View 
which they did on 15 August 2018. The Board of the NTA made its Decision of 19 
October 2018.
43. The Decision of 19 October 2018 contained the reasons for the decision and the 
following specific determinations (which Irish Ferries deny):
i. that the Regulation applied to the cancellations of the W.B. Yeats sailings 
between Dublin and Cherbourg in Summer 2018;
ii. that the NTA was of the opinion that Irish Ferries had failed, and was failing 
to comply with (or had infringed and was infringing), Article 18 of the 
Regulation in relation to the cancelled sailings in the manner and for the 
reasons set out in the Decision of 19 October 2018; and
iii. that the NTA was of the opinion that Irish Ferries had failed, and was failing 
to comply with (or had infringed and was infringing), Article 19 of the 
Regulation in relation to the cancelled sailings for the reasons set out in the 
Decision.
44. Irish Ferries disputes the adequacy of the reasons.
45. A notice under Article 18 (the “Article 18 Notice”) and a notice under Article 19 (the 
“Article 19 Notice”) was served on Irish Ferries on 22 October 2018 pursuant to 
Regulation 4(1) of the European Union (Rights of Passengers when Travelling by Sea 
and Inland Waterway) Regulations 2012 (SI No. 394 of 2012) (“2012 Statutory 
Instrument”). Also furnished to Irish Ferries was a copy of the Decision of 19 October
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M-46212224 1 10
2018 and a full copy of all of the materials that were before the Board when it made the 
Decision of 19 October 2018.
46. In accordance with Regulation 4(2) of the 2012 Regulations, Irish Ferries were entitled 
to make representations to the NTA within 21 days of service of the Article 18 Notice 
and the Article 19 Notice. The NTA was required to consider any such representations 
and by Notice(s) confirm, modify or withdraw the Article 18 Notice and Article 19 
Notice. Representations were received from Irish Ferries on 12 November 2018, and 
27 November 2018.
47. By decision dated 25 January 2019 (which is the subject of these proceedings), the 
Board of the NTA decided to confirm the Article 18 Notice and the Article 19 Notice.
48. Pursuant to the Decision of 25 January 2019, the NTA issued Irish Ferries with notices 
confirming the Article 18 Notice and the Article 19 Notice along with the Article 18 
Notice as confirmed and the Article 19 Notice as confirmed.
a. The Article 18 Notice provides:
"in relation to passengers impacted by the cancelled sailings, where such impacted 
passengers had to travel to and from Rosslare (rather than Dublin) and/or to and 
from Roscoff (rather than Cherbourg), Irish Ferries is to reimburse any additional 
costs incurred by the impacted passengers in travelling to and from Rosslare rather 
than Dublin and to and from Roscoff rather than Cherbourg"; and
b. The Article 19 Notice requires Irish Ferries:
"to pay compensation to impacted passengers who have already requested 
compensation from Irish Ferries for the delay in arrival at the final destination as set 
out in the transport contract, where such delay falls within the criteria set out in 
Article 19(1)(a)-(d) of the...Regulation, in accordance with the provisions of Article 
19 of the...Regulation".
49. For completeness, there were some interactions between (a) INTERFERRY (a body 
which represents ferry companies including Irish Ferries) and officials from the 
European Commission's Directorate General for Transport (DG MOVE) and (b) the 
NTA and DG MOVE. Details of those interactions are in the underlying pleadings on 
the file of the referring court. Suffice it to say that Irish Ferries and the NTA each
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M-46212224 1 11
interpret DG MOVE'S comments as favourable to its own position. As the European 
Commission is entitled to intervene in these proceedings, it is proposed to let the 
Commission make its own views known on the matter.
IV. Relevant Legal Provisions
50. 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 L 334, 17.12.2010, p. 1- 
16; ELI: http://data.europa.eu/eli/reg/2010/1177/oj.
51. The attention of the Court of Justice of the European Union is brought to the Regulation 
generally but particularly, recitals 1, 2, 3, 12, 13, 14, 15, 17, 19, 22 and Articles 2, 18, 
19, 20, 24 and 25 thereof as well as EU law generally including Regulation (EC) No. 
161/2004 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.
52. Irish Ferries also relies on Articles 16, 17, 20 and 47 of the Charter of Fundamental 
Rights of the European Union, as well as on the general principles of proportionality, 
legal certainty and equal treatment.
53. The relevant national legislation is the 2012 Statutory Instrument. The NTA is 
designated as the national enforcement body pursuant to regulation 3 of the 2012 
Statutory Instrument.
54. Under regulation 4(1) of the 2012 Statutory Instrument, the NTA, either on its own 
initiative, or following a complaint made to it by a passenger, being of the opinion that a 
provider is failing to comply with or is infringing the Regulation “shall cause to be 
served on the provider a notice specifying the failure or infringement concerned and 
requiring the provider to take such measures as are specified in the notice, within such 
period as may be specified, for the purpose of complying with the notice."
55. Regulation 4(2) further provides that where there a notice is served under regulation 
4(1), the provider may within 21 days of service of the notice make representations to 
the NTA. The NTA shall consider any such representations and shall by notice, 
confirm, modify or withdraw the notice.
22 July 2019
M-46212224.1 12
56. Non-compliance with the Notices served is, by virtue of Regulation 4(3) of the 2012 
Statutory Instrument, an offence creating a liability: (i) on summary conviction, to a 
class A fine (i.e., €5,000); or (ii) on conviction on indictment, to a fine not exceeding 
€250,000.
57. The Regulation has not been interpreted by the CJEU.7 The questions in these 
proceedings are novel and the answers unclear.
V. The Grounds for the Reference
58. The Regulation is critical to the outcome of the proceedings. The parties have identified 
disputes on the interpretation and application of the Regulation on which there is no 
relevant jurisprudence. A summary of the legal arguments advanced by both Irish 
Ferries and the NTA is set out below.
Summary of Irish Ferries' Legal Arguments
59. Irish Ferries' arguments, insofar as they are relevant to this Request for Preliminary 
Ruling, include:
a. Misinterpretation of the Regulation - the NTA failed to interpret the 
Regulation by reference to its wording, scheme, purpose and in the manner in 
which EU law (including the Charter of Fundamental Rights (Charter) and 
general principles of EU law) must be interpreted;
b. Misapplication of the Regulation Generally - the Regulation does not apply 
where weeks or months of notice are provided to passengers. The scheme and 
wording makes it clear that it applies to passengers who are en route and/or in 
transit (e.g., references to minutes of delay and being in the terminal). Irish 
Ferries believes that its position is supported by the wording and context of the 
Regulation, the objective, the legislative history and the principles of 
proportionality and equal treatment. In particular in this regard, Irish Ferries 
relies on Articles 16(1), 17(1), 18(1), 18(3), and Recitals (12) and (13), and 
Chapter III. Irish Ferries also relies on the fact that Recital (1) of the Regulation 
makes it clear that its objective is ensure “a high level of protection for
7 For completeness, Reg. 1177/2010 was mentioned in the following cases: Case C-509/11 OBB-
Personenverkehr AG ECLI:EU:C:2013:613, paras.27 and 46.
22 July 2019
M-46212224.1 13
22 July 2019
passengers that is comparable with other modes of transport and in this 
respect, Irish Ferries refers to the position under Regulation 261/2004 (“the Air 
Passengers Regulation”). Irish Ferries’ position is supported by the initial 
Commission Proposal for the Regulation and by the Opinion Of The European 
Economic And Social Committee On The ‘Proposal For A Regulation Of The 
European Parliament And Of The Council Concerning The Rights Of 
Passengers When Travelling By Sea And Inland (“EESC Opinion”). Nor does 
the Regulation apply where a ferry operator does not have a vessel available to 
it for reasons beyond its control. For the avoidance of doubt, Irish Ferries pays 
compensation under the Regulation whenever it applies, but believes that it was 
not applicable here;
c. Errors in the Scheme of the Regulation - even if the Regulation applied, the 
NTA erred in believing that Article 18 and Article 19 may apply conjunctively and 
simultaneously to the same passenger. The Regulation was not intended to 
impose double penalties on carriers. It would be erroneous to interpret Article 19 
(relating to delays in "arrival") as applying where the departure has been 
"cancelled". In this regard, again, Irish Ferries relies on the wording, context 
and objective of the Regulation, and in particular, on Articles 3 and 19(1). Irish 
Ferries also relies on the fact that the Regulation has to be interpreted in 
accordance with the principle of proportionality. At the very least, it cannot be 
correct, in Irish Ferries’ submission, for Article 19 of the Regulation to apply to 
passengers who have benefited from reimbursement pursuant to Article 18. 
Equally, there were extraordinary circumstances in this case;
d. Errors in Finding that Irish Ferries did not comply with Article 18 and/or 
Article 19 - even if the Regulation applied, the NTA erred in not finding that 
Irish Ferries had complied with it. In respect of Article 18, Irish Ferries 
immediately offered passengers the choice between: re-routing to their final 
destination under comparable conditions at no additional cost (i.e., the “New 
Contract Offer”); or reimbursement of the ticket price. In respect of Article 19, 
the passengers who accepted the New Contract Offer were not delayed in 
"arrival at the final destination as set out in the transport contract", namely, the 
final destination as set out in the new contract, which was the only applicable 
and relevant "transport contract" at their time of travel for the purpose of Article 
19. (If the second sailing was delayed then Article 19 would apply to that sailing
M-46212224.1 14
22 July 2019
but not the first cancelled sailing otherwise a passenger would be able to claim 
compensation for two delayed sailings including one on which they never 
sailed.) Further, and for the avoidance of doubt, Irish Ferries contends that 
Landbridge comprises re-routing under comparable conditions, in particular, 
given extensive evidence as to its interchangeability with direct routes and its 
popularity with passengers. Landbridge remains an option for both passengers 
and freight to travel between Ireland and France even when direct 
Ireland/France sailings are available. Switching between direct services and 
Landbridge options occurs frequently. There are times of the year when 
Landbridge is the only way of sailing between Ireland and France.
e. Misinterpretation and/or Misapplication of Article 18 - even if it is accepted 
that the Regulation applied, the NTA has erred in concluding that Article 
18(1)(a)—requiring “re-routing to the final destination”—requires re-routing 
through the same ports and/or “port of embarkation” and/or “port of 
disembarkation” and/or “port of arrival” (Dublin-Cherbourg), rather than re­
routing to the same “final destination” through different ports (and achievable 
through rerouting, for example, via Rosslare-Roscoff). Irish Ferries relies on its 
offer of travel by Landbridge with payment of additional fuel costs as being 
alternative redress under Article 18. Irish Ferries’ position is supported by a 
contextual reading of the Regulation.
f. Misinterpretation and/or Misapplication of Article 19 - even if the Regulation 
applied, the NTA misinterpreted and/or misapplied Article 19. The NTA adopted 
an Article 19 Notice in respect of "cancellation" of services. However Article 19 
does not deal with "cancellation". Article 19 deals with "delay in arrival", as 
shown by its title (“Compensation of the ticket price in the event of delay in 
arrival”) and content. In this respect, Article 19 is also to be contrasted with 
Article 18, which deals with re-routing and reimbursement in the event of 
cancelled or delayed departures. At the very least, again, a distinction ought to 
be drawn between passengers who have been reimbursed pursuant to Article 
18 and passengers who have been rerouted.
Further, the NTA has erred in not finding that Article 19 has been disapplied by 
Article 20(4), and that the circumstances arising here are extraordinary. In this 
regard, Irish Ferries relies on the range of cases decided under the Air
M-46212224.1 15
Passengers Regulation, which it regards as helpful to it. Irish Ferries contends 
that it falls within the scope of the types of circumstances recognised by the 
Court as “extraordinary”.
Irish Ferries notes that the circumstances outlined in Recital (17) are not 
exhaustive. Shipbuilding is not within the normal exercise of Irish Ferries’ 
activities. The legislative history is supportive of Irish Ferries, and in particular, it 
relies on the Report of COREPER on the proposal for a Regulation of the 
European Parliament and of the Council concerning the rights of passengers 
when traveling by sea and inland waterway and amending Regulation (EC) No. 
2006/2004 on cooperation between national authorities responsible for the 
enforcement of consumer protection law and the EESC Opinion and Position 
(EU) No 5/2010 of The Council At First Reading With a View to the Adoption of 
Regulation of the European Parliament and of The Council Concerning The 
Rights Of Passengers When Travelling By Sea And Inland Waterway.
While the NTA suggests that Irish Ferries cannot rely on the existence of 
extraordinary circumstances given that it accepted advance bookings, this 
position is misconceived. In particular, it would be an intolerable and 
unreasonable burden on shipping companies not to accept bookings until after 
the vessel has been delivered; for example, typically, most passengers travel 
once a year in the Summer months on the Ireland-France-lreland route and they 
typically book many months in advance. Irish Ferries acted in accordance with 
the normal and reasonable standards of the sector. If the W.B. Yeats was to 
arrive in, say, early Summer 2018 then no booking could have been taken 
(according to the NTA) until after then so no revenue would have been earned 
on the Ireland-France-lreland route (which is a Summer service) until bookings 
were made for Summer 2019 (i.e., almost a year later). This would be intolerable 
in the context of multimillion euro assets being unable to generate revenue.
g. Excess of Jurisdiction - the Decision and Notices were adopted in excess of 
jurisdiction. Article 25(1) obliged each Member State to designate a body to be 
responsible for the enforcement of the Regulation “as regards passenger 
services and cruises from ports situated on its territory and passenger services 
from a third country to such ports." The NTA sought to exercise jurisdiction in
22 July 2019
M-46212224.1 16
respect of services from France which is within the jurisdiction of the French 
authority.
h. Failure to Apply Article 24 - even if the Regulation applies, the NTA failed to 
apply Article 24 properly. The legal effect of Article 24 is to impose a mandatory 
obligation on any passenger seeking compensation under the Regulation to 
complain within two months from the date on which the service was performed 
or when a service should have been performed. The NTA failed to limit the effect 
of the Decision and the Notices to those passengers who had made a complaint 
in accordance with Article 24.
i. Breach of the Principle of Legal Certainty - the NTA breached the principle of 
legal certainty insofar as: the Decision and/or Notices do not identify the 
addressee with sufficient clarity referring to “many instances” of impacted 
passengers not being offered re-routing at no “additional cost”, while failing to 
identify these concepts; the NTA has purported to apply Articles 18 and 19 to a 
sailing which has been superseded by a second sailing; the Decision and the 
Notices fail to define concept of “ticket price” in Article 19(2) of the Regulation 
(and in particular, fail to clarify if the term includes “add-ons” such as cabin 
price);
j. Breach of the Principle of Proportionality - the NTA has breached the 
principle of proportionality, given, in particular, the oppressive impact of the 
Decision and/or the Notices on Irish Ferries;
k. Breach of Irish Ferries’ Rights under the Charter - the NTA has breached 
Irish Ferries’ rights under the Charter (in particular, Articles 16 and 17), In 
particular, the Decision and the Notices result in a gross and unjustified 
interference with Irish Ferries’ rights and interfere with Irish Ferries’ freedom of 
contract, precluding it from cancelling any contract with any passenger even in 
accordance with the terms of the said contract, without incurring liability under 
the Regulation;
l. Manifest Error - the Decision and Notices are vitiated by manifest error;
m. Breach of the duty to give reasons and/or Article 47 of the Charter - the
NTA has failed to provide adequate reasons, in particular, given the criminal 
penalties for non-compliance with the Notice;
22 July 2019
M-46212224.1 17
n. The Invalidity of the Regulation - if the NTA has correctly interpreted and 
applied the Regulation, Irish Ferries contends that the Regulation is nonetheless 
invalid. In particular, Irish Ferries contends that the Regulation breaches the 
General Principles of EU law; the principle of legal certainty insofar as it imposes 
onerous obligations on carriers in the absence of a clear legal basis for same 
and/or Article 19(1) imposes an obligation to pay compensation by reference to 
a percentage of the “ticket price” without defining the concept of “ticket price”\ 
breaches the principle of proportionality; the Charter, and in particular Articles 
16, 17 and 20 thereof; and the principle of equal treatment insofar as it fails to 
treat ferry operators and airline operators equally in equal circumstances.
Summary of the NTA’s Legal Arguments
22 July 2019
a. Proper interpretation of the Regulation -The objective of the Regulation is to ensure 
a high level of protection to passengers using waterborne transport anywhere in the EU 
by establishing certain rights and a minimum quality of service across the EU. The 
NTA, in making the Decision and issuing the Notices, construed and applied the 
Regulation in accordance with its wording, scheme and objectives and gave it a 
purposive and teleological interpretation in accordance with the requirements of EU 
law.
b. Application of the Regulation Generally - The NTA’s position is that the Regulation 
applies to the cancellations of the sailings on the Route during the 2018 Season.
c. Advance Notice - Article 18(1) of the Regulation applies whenever there is a 
reasonable expectation that a cancellation of a passenger service will occur and Article 
18(2) applies when the cancellation of the passenger service has occurred. In this case 
the sailings on the W.B. Yeats were cancelled and therefore Article 18 applies. Article 
18 is only disapplied where the requirements of Article 20(1) are met which is not the 
case here. The Regulation does not provide that where advance notice of 
cancellations, or advance notice of any particular duration (be it weeks or months), is 
given that the Regulation does not apply.
d. Passengers en route and/or in transit - Article 18 is not premised on passengers 
being at a port at the time of the cancellation and there is nothing in the wording of 
Article 18 to suggest that it only applies where a passenger is en route/in transit.
M-46212224.1 18
Furthermore, such an interpretation would not accord with the language of Article 18 or 
the objectives of the Regulation to ensure a high level of protection to passengers 
using waterborne transport in the EU. Similarly, there is nothing in the wording of 
Article 19 that suggests that it does not apply where (1) advance notice of a 
cancellation is given and/or (2) that it only applies to passengers who are en route 
and/or in transit.
e. Ports of embarkation and availability of a vessel - Article 2 of the Regulation 
provides that the Regulation applies wherever passenger services are provided to 
passengers travelling where the port of embarkation is situated in the territory of a 
Member State. As the ports of embarkation (Dublin and Cherbourg) are located in the 
territory of a Member State, the Regulation applies in respect of the passenger services 
at issue unless Irish Ferries can bring itself within an exemption to the application of the 
Regulation. There is no support in Article 2 or elsewhere for the proposition that the 
Regulation is disapplied if the ship is not available to provide passenger services.
f. Scheme of the Regulation - Article 18(1) applies whenever there is a reasonable 
expectation that a cancellation of a passenger service will occur and Article 18(2) 
applies when the cancellation of the passenger service has occurred. While it is 
accepted that Article 19 does not use the word “cancellation” as a reason for delay in 
arrival, where passenger services are cancelled and where impacted passengers are 
rerouted such that they arrive at the final destination as set out in the transport contract 
at a later time, then they are “facing a delay in arrival at the final destination as set out 
in the transport contract pursuant to Article 19. On the facts of an individual case, 
neither, one or both of Articles 18 and 19 may be applicable. Articles 18 and 19 can 
apply conjunctively and simultaneously. The application of Article 18 and 19 to the 
same passenger does not result in a double penalty for the carrier and/or an 
unintended windfall for the passenger and such an application is consistent with the 
intention of the Regulation.
The NTA does not accept that, where a passenger agrees to a "re-routing to the final 
destination, under comparable conditions, as set out in the transport contract, at the 
earliest opportunity and at no additional cost" under Article 18(1 )(a), this results in a 
variation of the terms of the transport contract such as to deprive impacted passengers 
of rights under Article 19 in respect of that transport contract and replace it with a new 
transport contract. For the purposes of the Regulation, the transport contract was that
22 July 2019
M-46212224.1 19
entered into between the passenger and Irish Ferries in respect of the sailing on the 
W.B. Yeats and accordingly, the NTA denies that passengers were not delayed in 
"arrival at the final destination as set out in the transport contract'. The reference to 
“transport contract” in Article 19(1) is a reference to the “transport contract” entered into 
between the passenger and the carrier. It is not accepted that a “New Contract Offer” is 
made or a new contract entered into between the passenger and the carrier where the 
passenger agrees to re-routing or a reimbursement under Article 18(1) in the manner 
as asserted by Irish Ferries.
g. Finding that Irish Ferries did not comply with Article 18 and/or Article 19 -
It is accepted that Irish Ferries offered at least some affected passengers a choice 
between re-routing and reimbursement but the exact details of what options were 
offered to individual passengers are not known to the NTA.
However, the NTA’s position is that the offers made by Irish Ferries to affected 
passengers did not satisfy Irish Ferries’ obligations under Article 18.
The re-routing offered by Irish Ferries failed to comply with the requirements of Article 
18(1)(a) in that (a) re-routing was required to be to the final destination, under 
comparable conditions, as set out in the transport contract but some impacted 
passengers were not offered re-routing to the final destination as they were re-routed 
from Rosslare to Roscoff rather than from Dublin to Cherbourg (and the inverse on the 
return leg of the Route) and (b) in many instances impacted passengers were not 
offered re-routing “at no additional cost’ as Irish Ferries did not reimburse additional 
costs incurred by passengers in travelling to and from Rosslare rather than Dublin and 
to and from Roscoff rather than Cherbourg.
With regard to Landbridge, Irish Ferries did not offer Landbridge as an option to all 
passengers affected by the First Cancellation but facilitated those passengers who 
wished to travel Landbridge. The NTA accept that Landbridge was offered to those 
passengers affected by the Second Cancellation.
The NTA maintain that the fact that Irish Ferries facilitated some passengers affected 
by the First Cancellation who wished to travel Landbridge and that Landbridge was one 
of the alternatives offered by Irish Ferries to passengers affected by the Second 
Cancellation does not mean that Article 18 has been complied with. While the NTA 
made no determination as to whether Landbridge constituted “re-routing under
22 July 2019
M-46212224.1 20
comparable conditions” for the purposes of Article 18, the NTA does not accept the 
contention advanced by Irish Ferries that the Landbridge option constituted l‘re-routing 
under comparable conditions” for the purposes of Article 18.
In addition, it is not accepted that the provision of a €150 voucher exceeded Irish 
Ferries’ obligations under the Regulation.
h. Interpretation and Application of Article 18 -The NTA denies that it erred in 
concluding that the requirement for "re-routing to the final destination" requires re­
routing through the same ports. It is denied that the interpretation and/or application of 
Article 18 taken by the NTA is erroneous because of the fact that there was no other 
comparable available service from Dublin to Cherbourg. There is no definition of the 
term “final destination” in the Regulation but it is clearly intended to refer to the 
destination specified in the transport contract rather than the ultimate destination of a 
passenger.
i. Interpretation and Application of Article 19 - The NTA has not misinterpreted and/or 
misapplied Article 19. The NTA construed and applied the Regulation in accordance 
with its wording and objectives and gave it a purposive and teleological interpretation.
j. Delays in arrival at the final destination as set out in the transport contract -
While Article 19 does not use the word "cancellation" as a reason for delay in arrival, 
where services are cancelled and passengers are rerouted so they arrive at the final 
destination as set out in the contract at a later time, then they "are facing a delay in 
arrival at the final destination as set out in the transport contract'. There is no 
justification for treating those passengers who are delayed differently to those whose 
sailing is cancelled.
It is clear that Article 19 applies to delays caused by cancellations. Article 20(4) of the 
Regulation specifies the circumstances where Article 19 does not apply and provides 
that Article 19 should not apply where the carrier proves that the cancellation or delay 
is caused by weather conditions endangering the safe operation of the ship or by 
extraordinary circumstances hindering the performance of the passenger service which 
could not have been avoided even if all reasonable measures had been taken. Further, 
Recital 19 of the Regulation also states that the CJEU has already ruled that problems 
leading to cancellations or delays can be covered by the concept of extraordinary
22 July 2019
M-46212224 1 21
circumstances only to the extent that they stem from events which are not inherent in 
the normal exercise of the activity concerned and are beyond its actual control.
k. Extraordinary Circumstances - The burden of proving “extraordinary circumstances” 
such that Article 19(1) of the regulation was dis-applied falls on Irish Ferries and has 
not been discharged.
The non-availability of a new build ship does not give rise to an "extraordinary 
circumstance" within the meaning of Article 20(4). The test under Article 20(4) involves 
examining whether extraordinary circumstances hindering the performance of the 
passenger service could not have been avoided even if all reasonable measures had 
been taken. The NTA maintain that the circumstances arising were not outside the 
control of Irish Ferries and/or that Irish Ferries took all reasonable measures to avoid 
the situation arising, as required by Article 20(4). The cancellation of the passenger 
services could have been prevented if Irish Ferries had not taken bookings for those 
passenger services and entered into transport contracts at a time when it did not own 
or have possession of the ship on which those passenger services were to be provided 
and where there was an inherent risk that it would not have possession of the ship at 
the time that those passenger services had to be provided in accordance with the 
relevant transport contract.
While the NTA accepts that Irish Ferries does not build ships and relies upon others to 
do so, the NTA is of the view that the "non-availability of a new build ship is not an 
event which is not inherent in the normal exercise of the activity of a carrier and/or that 
"the late delivery of the ship is inherent in the normal exercise of Irish Ferries' activity". 
For the purposes of Article 20(4), the length of delay in the delivery of the vessel does 
not have any bearing on whether the circumstances were extraordinary.
l. Excess of Jurisdiction -Article 25(1) provides that (a) each Member State is to 
designate a body responsible for the enforcement of the Regulation as regards 
passenger services and cruises from ports on its territory and passenger services from 
a third country to such ports and (b) that such designated body has an obligation to 
ensure compliance with the Regulation.
The Regulation envisages co-operation between the National Enforcement Bodies and 
this is expressly provided for in Article 25(3) which provides that a passenger can
22 July 2019
M-46212224.1 22
submit a complaint to a body under Article 25(1) and such complaint may be submitted 
“to any other competent body designated by a Member State".
It would be inconsistent with the scheme of the Regulation and the objective of a high 
level of protection to passengers using waterborne transport anywhere in the EU if 
passengers who entered into a transport contract with a ferry company for a return 
sailing were required to make two separate complaints to two separate National 
Enforcement Bodies in respect of that transport contract with the possibility of 
inconsistent results.
m. Failure to apply Article 24 - Article 24 is a standalone provision relating to complaints 
and does not refer to compensation at all. Furthermore, Article 24 does not impose a 
mandatory obligation on any passenger seeking compensation under the Regulation to 
make a complaint within two months from the date on which the service was performed 
or when a service should have been performed as contended for by Irish Ferries.
The rights of the passenger under Article 18 and Article 19 are not predicated on the 
making of a complaint under Article 24 to either the carrier or the National Enforcement 
Body. Accordingly, there was no requirement that the Notices issued under Article 18 
and Article 19 be limited to passengers who had made a complaint in accordance with 
Article 24.
n. Validity of the Regulation - The NTA does not accept that the Regulation is invalid.
o. Breach of the Principle of Legal Certainty - The Article 18 and Article 19 Notices are 
clear and they set out precisely the measures to be taken by Irish Ferries.
The term “ticket price” is not defined in either the Decision of 25 January 2019, the 
Article 18 Notice or the Article 19 Notice, nor was it necessary to do so as (1) the 
Decision of 25 January 2019 was a decision to confirm the Article 18 Notice and the 
Article 19 Notice and it was not necessary to define “ticket price” for the purpose of that 
decision, (2) the Article 18 Notice does not refer to “ticket price” and (3) the Article 19 
Notice does not define “ticket price” for the purposes of that Notice as Article 19(3) of 
the Regulation clearly provides that “compensation shall be calculated in relation to the 
price which the passenger actually paid for the delayed passenger service.”
p. Breach of the Principle of Proportionality - The NTA denies that the Decision of 25 
January 2019 and/or the Article 18 Notice and/or the Article 19 Notice are
22 July 2019
M-46212224.1 23
disproportionate to the aim of ensuring a high level of protection for passengers, which 
is one of the objectives of the Regulation.
The Decision of 25 January 2019 and/or the Article 18 Notice and/or the Article 19 
Notice are tailored to the different circumstances of different affected passengers. In 
particular the Article 18 Notice is limited to those passengers that had to travel to and 
from Rosslare (rather than Dublin) and/or to and from Roscoff (rather than Cherbourg) 
and requires Irish Ferries to reimburse any additional costs incurred by the impacted 
passengers in travelling to and from Rosslare rather than Dublin and to and from 
Roscoff rather than Cherbourg. The Article 19 Notice is restricted to passengers who 
have already requested compensation from Irish Ferries for the delay in arrival at the 
final destination as set out in the transport contract where such delay falls within the 
criteria set out in Article 19(1)(a) to (d) of the Regulation.
q. Breach of Irish Ferries’ Rights under the Charter - The Decision of 25 January 2019 
and/or the Article 18 Notice and/or the Article 19 Notice are not a gross and unjustified 
interference with Irish Ferries’ rights to property, to earn a livelihood, to freedom of 
contract and business, to the extent that those rights are protected under the Charter. 
To the extent that those rights are protected by the Charter, they may be limited by law, 
such as the Regulation, which pursues an important public interest, namely seeking to 
ensure a high level of protection for passengers. It is not accepted that the Decision of 
25 January 2019 and/or the Article 18 Notice and/or the Article 19 Notice interfere with 
Irish Ferries’ contracts with its passengers and preclude Irish Ferries from cancelling 
any contract with any passenger even in accordance with the terms of the contract 
without incurring liability under the Regulation;
r. Manifest Error - The NTA denies that its decision is vitiated by manifest error.
s. Breach of the duty to give reasons and/or Article 47 of the Charter - The reasons 
for the Decision of 25 January 2019 are clearly set out in that Decision, which itself 
expressly refers to the Addendum Memorandum dated 7 December 2018 and the 
Additional Addendum Memorandum dated 11 January 2019 and records the Board 
“generally agreeing with the analysis and considerations set out in the Addendum 
Memorandum and the Additional Addendum Memorandum” and also referred to the 
Decision of 19 October 2018 and the Memorandum dated 6 September 2018. The 
reasons for the Decision of 25 January 2019 to confirm the Article 18 Notice and Article
22 July 2019
M-46212224.1 24
19 Notice are to be found in those documents. Those reasons meet the standard 
required by decision making bodies and comply with the requirements of EU law.
22 July 2019
M-46212224.1 25
THE HIGH COURT
Commercial
BETWEEN: 2019 No. 118 JR
IRISH FERRIES LIMITED
-and-
NATIONAL TRANSPORT AUTHORITY
Applicant
Respondent
QUESTIONS FOR REFERRAL TO THE COURT OF JUSTICE OF THE EUROPEAN
COMMUNITY
A. Applicability of the Regulation
Q.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;
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;
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.
Q.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?
Q.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
M-46215177-1
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?
C. Interpretation of Article 19 of the Regulation
Q.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.
Q.5
(a)
(b)
If Article 19 is capable of applying:
How is the period of delay to be measured in such circumstances?
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)
Q.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
Q.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
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performed or should have been performed?
F. Interpretation of Article 25
Q.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
Q.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 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?.
H. Validity of Regulation 1177/2010
This question will only arise depending on the answers to the previous questions.
Q.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)?
(c) The principles of proportionality, legal certainty and equal treatment?
Mr Justice Robert Haughton, Judge of the Irish High Court. 
22 July 2019.
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