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02
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Newsletter February 2012: Newsletter FLO – Aviation

 

Arthur Flieger, Attorney of Law Flieger Law Office bvba
With the cooperation of Stijn Brusseleers, Attorney of Law Flieger Law Office bvba

 

A further interpretation of passengers rights: Compensation 261/2004 and more… ( a right to further compensation ) and where is the Montreal Convention

 

General Court of Justice, October 13, 2011( Rodriguez e.a. vs Air France )

 

I.
The proceedings in this matter refer to an air transport contract to carry passengers from Paris to Vigo. A few minutes after the flight took off as planned, the pilot decided to return to the departure point Paris Charles De Gaulle Airport, because of a technical failure of the aircraft. After the return to the airport of departure apparently nothing in the file indicated that the aircraft took off again and the belatedly reached its destination.

In the main procedure the applicants seek the compensation referred to in article 7 of Regulation n° 261/2004 in the fixed amount of € 250,00, each as prescribed by the article. One of them claims, furthermore, repayment of the costs that he incurred for his transfer by taxi from Porto Airport to Vigo. Another applicant claims the repayment of his meal cost at the Paris airport as well as those in respect of his dog being kept in boarding kennels for a day longer than initially expected. All applicants claim, finally that Air France should be ordered to pay them an additional sum in respect of the non-material damage they considered they have suffered.

The national court ( Juzgado de lo Mercantil n°1 de Pontevedra ) referred the following questions to the court:

1) Is the term cancellation to be interpreted as meaning only the failure of the flight to depart as planed or it is also to be interpreted as meaning any circumstances as a result of which the flight on which places are reserved takes off but fails to reach its destination, including the case in which the flight is forced to return to the airport of departure for technical reasons. ( Article 2(1) Regulation 261/2004 )
2) Is the term further compensation to be interpreted as meaning that, in the event of a cancellation, the national court may award compensation for damage, including non-material damage in accordance with rules established in national law, or must such compensation relate solely to appropriately substantiated expenses incurred by passengers and not adequately indemnified by the carrier in accordance with the requirements of articles 8 and 9 of Regulation 261/2004.
3) And are the two afore notions of further compensation compatible one with another.

II.
The Court upheld the interests of the passengers. The Court was asked whether the meaning of cancellation refers only to the situation in which the airplane in question fails to take off at all or whether it also covers the case in which the airplane, all trough having taking off, must return to the airport of departure following a technical failure of the aircraft.

Before determining the meaning of cancellation the Court specifies first the meaning of flights for the purpose of article 2(1) Regulation 261/2004.

The Court has already held in earlier case law that a flight consist in essence of an air transport operation, being as it were a unit of such transport, performed by an air carrier which fixes its itinerary.
Moreover it has specified that the itinerary is an essential element of the flight, as the flight is operated in accordance with the carriers pre-arranged planning ( C-173/07 Emirates Airlines, Airlines S40; C-402/07 and C-432/07 Sturgeon and others, §30).

III.
Since the term itinerary means the journey to be made by an aircraft from the airport of departure to the airport of arrival according to a fixed schedule, it follows that, for a flight to be considered to has been operated, it is not enough that the aircraft left in accordance with the scheduled itinerary, but it must also have reached its destination.

The fact that take-off occurred and the aircraft then returned to the airport of departure without having reached the destination appearing in the itinerary means that the flight as initially scheduled cannot be considered as having been operated.

In the Court’s view it is possible that there is an cancellation where the delayed flight for which the booking was made is “rolled over” onto another flight, that is to say, where the planning for the original flight is abandoned and the passengers from that flight join passengers on a flight which was also planned but independently of the flight for which the passengers so transferred had made their bookings.

IV
In such a situation it is not a tall necessary that all the passengers who had booked a place on the originally scheduled flight to be transported on another flight. All that matters in that regard is the individual situation of each passenger so transported, that is to say, the fact that, in relation to the passenger in question, the original planning of the flight has been abandoned.

The main issue in this matter is that the reason why the airplane was forced to return to the airport of departure and did not reach its destination is irrelevant to the classification of cancellation within the definition or article 2(1) of Regulation no 261/2004.

That reason is relevant only to determine, in the context of compensation for damage suffered by passengers due to the cancellation of their flight, whether, depending on the circumstances, that cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken within the meaning of article 5(3) of Regulation no 261/2004 in which case no compensation is payable.

Cancellation is interpreted by the Court as meaning that, it does not refer only to the situation in which the aircraft in question fails to take off at all, but also covers the case in which that aircraft took off but, for whatever reason, was subsequently forced to return to the airport of departure where the passengers of that aircraft were transferred onto other flights.

V
With the second question the Court looks into the case if further compensation provided by article 12 Regulation no 261/2004. The national court may order the air carrier to pay for all kind of damages, including non-material damages arising from breach of a contract of carriage by air in accordance with national rules.

From the provisions that the compensation granted to air passenger on the basis of article 12 of the Regulation 261/2004 is indented to supplement the application of measures provided the Regulation in question: indeed passengers can be compensated for the entirety of the damage that they have suffered due to the failure of the air carrier to fulfil its contractual obligations.

A national Court can order the air carrier to compensate damage arising for passengers, from breach of the contract of carriage by air on the legal basis other than regulation 261/2004, that is to say, in particular, in the conditions provided by the Montreal Convention and national law.

The Court has already held that standardised and immediate measures taken pursuant to Regulation 261/2004 do not themselves prevent the passengers concerned, should the same failure of the air carrier to fulfil its contractual obligation also cause them damage conferring entitlement to compensation, from being able to bring, in addition, actions to redress that damage under the conditions laid down by the Montreal Convention ( C-344/04 IATA and ELFAA ( 2006) ECR-I-403 § 47)

The Montreal Convention and in particularly its provisions 19,22 and 29, are applicable pursuant to article 3(1) of the Regulation no 2027/97, to the liability of an air carrier established within the territory of a Member State. In those articles the conditions are specified in which, following the delay or cancellation of a flight, the passengers in question may bring actions to obtain, by way of redress on an individual basis, damages from the carriers liable for damage arising from breach of a contract of carriage by air.

The Court decided already in the past that the damage, referred to in the Montreal Convention ( chapter III) must be construed as including both material and non-material damage. It follows that damage for which compensation may be payable pursuant to Article 12 of Regulation 261/2004 may be not only material damage, but also non-material damage (C-63/09 Walz )

On the other hand, in respect of further compensation, on the basis of Article 12 Regulation 261/2004, a national court may not order a carrier to reimburse to passengers whose flight has been delayed or cancelled the expenses the latter have had to incur because of the failure of the carrier to fulfil its obligations to assist under article 8 and 9 of same Regulation ( reimbursement of ticket or re-routing to the final destination, taking into account the cost of transfer between the airport of arrival and the originally scheduled airport).

The by the Regulation 261/2004 conferred claims to passengers cannot be considered as falling within the scope of further compensation, however when the carrier fails to fulfil its obligations under articles 8 and 9 of said Regulation, air passengers are justified in claiming a right to compensation on basis of the factors said out in the articles 8 and 9 of the same Regulation:

“Article 8 of Regulation 261/2004 entitles the right to reimbursement or re-routing:

1. where reference is made to this Article, passengers shall be offered the choice between:
(a) – reimbursement within seven days, by the means provided for in article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight no longer serving any purpose in relation to the passenger’s original travel plan, together with, when relevant.
– a return flight to the first point of departure, at the earliest opportunity;
(b) – re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; or
(c) – re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.

…”

When, in the case where a town, city or region is served by several airports, an operating air carrier offers a passenger a flight to an airport alternative to that for which the booking was made, the operating air carrier shall bear the cost of transferring the passenger from that alternative airport either to that for which the booking was made, or to another close-by destination agreed with the passenger’.

“-Article 9(1) and 9(2) of Regulation no 261/2004, entitled Right to care, provides:
1.Where reference is made to this Article, passengers shall be offered free of charge:
(a) meals and refreshments in a reasonable relation to the waiting time;
(b) hotel accommodation in cases
– where a stay of one or more nights becomes necessary, or
– where a stay additional to that intended by the passenger becomes necessary:
(c) transport between the airport and place of accommodation (hotel or other).
2. In addition, passengers shall be offered free of charge two telephone calls, telex or fax, messages, or emails.”

VI.
The Court states however that nothing in Regulation 261/2004 precludes the award of compensation in respect of a failure to fulfil the obligations provided for by article 8 and 9, if those provisions are not invoked by the air passengers.

The meaning of further compensation used in article 12 of Regulation no 261/2004 allows the national court to award compensation under the conditions provided by the Montreal Convention or national law, for damage, including non-material damage, arising for breach of a contract of carriage by air. On the other hand, that meaning of further compensation may not be the legal basis for the national court to order an air carrier to reimburse to passengers’ whose flight has been delayed or cancelled the expenses the latter have had to incur of the failure of that carrier to fulfil its obligation to assist and provide care under article 8 and 9 of the same Regulation.

VII
As a side note one should state that further compensation has got another basis than the Regulation itself. Air passengers on basis of the rights granted by Regulation 262/2004 can be considered as falling under further compensation. National law or the Montreal Convention will apply or be invoked. The liability in respect of delays under the Montreal Convention is limited to 4694 SDR ( € 5217,56 )

 

For further information and comment, please contact Arthur Flieger at Flieger@fliegerlaw.com, Website:, telephone: +32 3 238 77 66

 

Copyright A. Flieger