Emeka Nelson and Others v Deutsche Lufthansa AG and TUI Travel plc and Others v Civil Aviation Authority.
Date: 2012-10-23
30. Nevertheless, it is apparent from Article 5(1)(c)(iii) of Regulation No 261/2004 that passengers are entitled to fixed compensation – under the conditions specified in that provision – where their flights are cancelled without their being notified beforehand or where they are informed of the cancellation less than seven days before the scheduled time of departure, and where the air carrier is not able to offer to re-route them on a flight which departs no more than one hour before the scheduled time of departure and reaches their final destination less than two hours after the scheduled time of arrival (see Sturgeon and Others , paragraph 57).
33. In that regard, it should be noted that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified ( Sturgeon and Others , paragraph 48 and the case-law cited).
34. Passengers whose flights are delayed and those whose flights are cancelled must be considered as being in comparable situations, for the purposes of compensation under Regulation No 261/2004, because those passengers suffer similar inconvenience, namely, a loss of time equal to or in excess of three hours in relation to the original planning of that flight (see Sturgeon and Others , paragraph 54).
35. In addition, passengers in either group are in practice denied the opportunity to reorganise their travel arrangements freely, since they are faced either with a serious incident in the operation of their flight which is about to depart or already underway, or with the cancellation of their flight giving rise, as the case may be, to an offer to re-route. Consequently, if, for one reason or another, they are absolutely required to reach their final destination at a particular time, they cannot avoid the loss of time inherent in the new situation, having no leeway in that regard.
37. In those circumstances, and in view of the fact that the aim pursued by Regulation No 261/2004 is to increase protection for all air passengers, passengers whose flights are delayed by three hours or more cannot be treated differently from those receiving compensation under Article 5(1)(c)(iii) of that regulation, since such unequal treatment as between those two groups is not duly justified in the light of the aims pursued by the regulation (see Sturgeon and Others , paragraphs 59 and 60).
38. In order to alleviate such unequal treatment, Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are the subject of long delay may receive the same compensation, namely that laid down in Article 5(1)(c)(iii) of that regulation, as passengers whose flights are cancelled (see Sturgeon and Others , paragraph 61).
39. That said, it should be added that, with the adoption of Regulation No 261/2004, the legislature was also seeking to strike a balance between the interests of air passengers and those of air carriers. Having laid down certain rights for those passengers, it provided at the same time, in recital 15 and Article 5(3) of that regulation, that air carriers are not obliged to pay compensation if they can prove that the cancellation or long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances which are beyond the air carrier’s actual control ( Sturgeon and Others , paragraph 67).
40. In the light of the foregoing the answer to question 1 in Case C-629/10 is that Articles 5 to 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed are entitled to compensation under that regulation where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.
Questions 1 and 2 in Case C-581/10 and question 3(a) in Case C-629/10: whether Articles 5 to 7 of Regulation No 261/2004 are valid in the light of the Montreal Convention
46. In paragraph 45 of IATA and ELFAA , the Court held that it does not follow from Articles 19, 22 and 29 of the Montreal Convention, or from any other provision thereof, that the authors of that convention intended to shield air carriers from any form of intervention other than those laid down by those provisions, in particular action which could be envisaged by the public authorities to redress, in a standardised and immediate manner, the damage that is constituted by the inconvenience that delay in the carriage of passengers by air causes, without the passengers having to suffer the inconvenience inherent in the bringing of actions for damages before the courts.
48. That last measure was specifically examined in Sturgeon and Others , in which the Court stated, first, that loss of time constitutes an inconvenience covered by Regulation No 261/2004, like the other inconveniences which the measures laid down by that regulation must redress. Second, it found that that inconvenience must be redressed by means of compensating the passengers concerned pursuant to that regulation (see, to that effect, Sturgeon and Others , paragraphs 52 and 61).
49. In that connection, it should be made clear that, like the inconveniences referred to in IATA and ELFAA , a loss of time cannot be categorised as ‘damage occasioned by delay’ within the meaning of Article 19 of the Montreal Convention, and, for that reason, it falls outside the scope of Article 29 of that convention.
52. Next, a loss of time is suffered identically by all passengers whose flights are delayed and, consequently, it is possible to redress that loss by means of a standardised measure, without having to carry out any assessment of the individual situation of each passenger concerned. Consequently, such a measure may be applied immediately.
55. In those circumstances, the loss of time inherent in a flight delay, which constitutes an inconvenience within the meaning of Regulation No 261/2004 and cannot be categorised as ‘damage occasioned by delay’ within the meaning of Article 19 of the Montreal Convention, cannot come within the scope of Article 29 of that convention.
57. Furthermore, it should be stated that the obligation to pay compensation which stems from Regulation No 261/2004 is additional to Article 29 of the Montreal Convention, inasmuch as it operates at an earlier stage than the system laid down in that Article (see, to that effect, IATA and ELFAA , paragraph 46).
58. It follows that that obligation to pay compensation does not itself prevent the passengers concerned, should the same delay also cause them individual damage conferring entitlement to compensation, from being able to bring in addition actions to obtain, by way of redress on an individual basis, damages under the conditions laid down by the Montreal Convention (see, to that effect, IATA and ELFAA , paragraphs 44 and 47).
59. In that connection, the Court has held, when interpreting Article 12 of Regulation No 261/2004, entitled ‘Further compensation’, that that article is intended to supplement the application of measures provided for by that regulation, so that passengers are compensated for the entirety of the damage that they have suffered due to the failure of the air carrier to fulfil its contractual obligations. That provision thus allows the national court to order the air carrier to compensate damage arising, for passengers, from breach of the contract of carriage by air on a legal basis other than Regulation No 261/2004, that is to say, in particular, in the conditions provided for by the Montreal Convention and national law (Case C-83/10 Sousa Rodríguez and Others  [2011] ECR I-9469, paragraph 38).
64. In particular, as regards, first of all, the relationship between the judgments in IATA and ELFAA and Sturgeon and Others , it is apparent from paragraphs 46 to 48 above that there is no tension between those two judgments, the second judgment applying the principles laid down by the first.
66. Lastly, as regards the clarity of the obligations imposed on air carriers, it should be borne in mind that the principle of legal certainty requires that individuals should be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (see Case 169/80 Gondrand and Garancini  [1981] ECR 1931, paragraph 17; Case C-143/93 Van Es Douane Agenten [1996] ECR I-431, paragraph 27; and Case C-110/03 Belgium  v Commission  [2005] ECR I-2801, paragraph 30).
71. The principle of proportionality, which is one of the general principles of EU law, requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Joined Cases C-27/00 and C-122/00 Omega Air and Others  [2002] ECR I-2569, paragraph 62, and Case C-504/04 Agrarproduktion Staebelow  [2006] ECR I-679, paragraph 35).
75. Given that the loss of time suffered is irreversible, objective and easily quantifiable (see, in particular, Sturgeon and Others , paragraph 52), the measure granting all the passengers affected by that inconvenience immediate fixed pecuniary compensation is particularly appropriate.
76. Admittedly, it is true that that compensation entails certain financial consequences for air carriers. None the less, those consequences cannot be considered disproportionate to the aim of ensuring a high level of protection for air passengers.
78. Next, the amount of compensation, fixed at EUR 250, 400 and 600 depending on the distance of the flights concerned may still be reduced by 50% in accordance with Article 7(2)(c) of Regulation No 261/2004, where the delay is – in the case of a flight not falling under subparagraphs (a) or (b) of Article 7(2) – less than four hours ( Sturgeon and Others , paragraph 63).
79. In addition, air carriers are not obliged to pay compensation if they can prove that the cancellation or long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, that is, circumstances which are beyond the air carrier’s actual control (see Sturgeon and Others , paragraph 67).
80. Moreover, the discharge of obligations pursuant to Regulation No 261/2004 is without prejudice to air carriers’ rights to seek compensation from any person who caused the delay, including third parties, as Article 13 of that regulation provides. Such compensation may accordingly reduce or even remove the financial burden borne by carriers in consequence of those obligations. Nor does it appear unreasonable for those obligations initially to be borne, subject to the abovementioned right to compensation, by the air carriers with which the passengers concerned have a contract of carriage that entitles them to a flight that should be neither cancelled nor delayed ( IATA and ELFAA , paragraph 90, and Sturgeon and Others , paragraph 68).
81. Indeed, the case-law shows that 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 (see, to that effect, Case C-58/08 Vodafone and Others  [2010] ECR I-4999, paragraphs 53 and 69).
88. In that connection, regard must be had to the settled case-law to the effect that the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force. It follows that the rule as thus interpreted may, and must, be applied by the courts even to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the competent courts are satisfied (see, inter alia, Case C-347/00 Barreira Pérez  [2002] ECR I-8191, paragraph 44 and Joined Cases C-453/02 and C-462/02 Linneweber and Akritidis  [2005] ECR I-1131, paragraph 41).
89. It is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the right to rely upon a provision which it has interpreted with a view to calling in question legal relationships established in good faith (see, inter alia, Case C-104/98 Buchner and Others  [2000] ECR I-3625, paragraph 39 and Linneweber and Akritidis , paragraph 42).
91. In that connection, the Court has already held that restricting the temporal effects of such an interpretation may be allowed only in the actual judgment ruling upon the interpretation requested. That principle guarantees the equal treatment of the Member States and of other persons subject to EU law, under that law, fulfilling, at the same time, the requirements arising from the principle of legal certainty (Case C-292/04 Meilicke and Others  [2007] ECR I-1835, paragraph 37).
92. The interpretation requested by the High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court) in Case C-629/10 concerns the right to compensation under Regulation No 261/2004 payable to air passengers where they suffer, as a result of a delay to their flight, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. In that regard, it is clear from paragraph 61 of Sturgeon and Others  that air passengers enjoy such a right.