Air Passengers Rights

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Air Passengers Rights RegulationRights
Problems SolutionsKlaus TonnerProfessor for
Private Law and European LawUniversity of Rostock

• IFTTA Europe
• Palma de Mallorca
• 1-3 April 2009

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Tonner, Air Passengers Rights

• Rights
• - right to compensation
• - - for denied boarding and cancellation, not for
  delay
• - right to re-imbursement or re-routing
• - right to care

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Tonner, Air Passengers Rights

• Problems
• Concept of flight
• Distinction between cancellation and delay
• Denied boarding
• The excuse of extraordinary circumstances

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Tonner, Air Passengers Rights

• Problem 1 Concept of flights
• Is an outward and return flight, booked with a
  non EU carrier, outward flight starting within
  the EU, return flight starting outside the EU,
  under the scope of the Regulation?
• Possible answer yes, an outward and return
  flight is a round trip according to the
  Montreal Convention, this is to say one flight.

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Tonner, Air Passengers Rights

• But ECJ 10.7.2008 C-173/07, Emirates v
  Schenkel no, different concepts of flight in the
  Montreal Convention and in the Regulation
• Solution 1 outward and return flights are two
  flights

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Tonner, Air Passengers Rights

• Emirates cont.
• Reasons why a flight is only a single flight
• - the Reg. distinguishes departing from an
  airport located in a member state and from an
  airport located in a non member state
• - The Reg. expressly refers to the term of
  return flight
• - The Reg. distinguishes between point of
  departure and final destination which are not the
  same

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Tonner, Air Passengers Rights

• Relevance of the Montreal Convention
• - the term of flight does not appear in the
  Convention
• The concept of the Convention is a concept of
  journey

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Tonner, Air PassengersRights

• Problem 2 Distinction between cancellation and
  delay
• When does a delay become a cancellation?
• Not yet answered by the ECJ, but three cases
  pending
• - C-402/07, Sturgeon v Condor, reference for a
  preliminary ruling of the Bundesgerichtshof,
  asking Is it decisive for a cancellation that
  the original flight planning is abandoned, and if
  not, in what circumstances is a delay no longer
  to be regarded as a delay, but as a cancellation?

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Tonner, Air PassenegersRights

• Delay/cancellation cont.
• - C-432/07 Böck v Air France
• Reference for a preliminary ruling from the
  Handelsgericht Wien, asking
• Is a 22-hour delay still a delay? Does the
  change of the flight number play a role?

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Tonner, Air PassengersRights

• Denied boarding
• - C-525/08 Bienek v Condor
• Reference from the Bundesgerichtshof asking
• Does a change in reservation constitute denied
  boarding, even if it is not investigated by the
  air carrier, but by the tour operator?

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Tonner, Air Passengers Rights

• Denied boarding cont.
• Reasons of the Bundesgerichtshof in the reference
  (BGH 7.10.2008 X ZR 96/06)
• Change in reservation could be treated as denied
  boarding as otherwise carriers could circumvent
  the legal consequences of denied boarding by
  changing the reservation.

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Tonner, Air Passengers Rights

• Denied boarding cont.
• Further German cases are in the pipe, whether a
  delayed connecting flight constitutes denied
  boarding of the second flight

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Air PassengersRights

• Problem 3 Extraordinary circumstances
• Does a technical problem in an aircraft
  constitute extraordinary cirumstances with the
  result that the carrier must not pay
  compensation?
• ECJ 22.12.2008 C-549/07 Wallentin-Hermann v
  Altitalia no. The fact that an air carrier has
  complied with the minimum rules on maintenance
  cannot in itself suffice to establish that the
  carrier has taken all reasonable measures to
  relief that carrier of its obligation to pay
  compensation.

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Tonner, Air PassengersRights

• Wallentin-Hermann cont
• The Regulation ensures a high level of protection
  for passengers the excuse of extraordinary
  circumstances is a derogation from that principle
  and therefore must be interpreted strictly
• The list in recital 14 (wheather conditions etc.)
  is only indicative

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Tonner, Air Passengers Rights

• Extraordinary circumstances cont.
• Technical problems which come to light during
  maintenance cannot constitute in itself
  extraordinary circumstances
• Technical problems are no extraordinary
  circumstances, unless they stem from events,
  which are not inherent in the normal exercise of
  the activity of the air carrier and are beyond
  its actual control

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Tonner, Air PassengersRights

• Extraordinary circumstances cont.
• C-529/08 Schulze v Deutsche Lufthansa
• Reference for a preliminary ruling from the
  Bundesgerichtshof
• Does the concept of an extraordinary circumstance
  include also those defaults which affect the
  airworthiness of the aircraft or the safe
  completion of the flight?
• Solution 3 Technical problems do not constitute
  extraordinary circumstances

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Tonner, Air PassengersRights

• Conclusion
• Regulation (EC) No. 261/2004 is not a masterpiece
  of legislation
• The Community legislator refuses to redraft it
• Repair is needed by the ECJ
• Problems are partly solved, but the main problem
  distinction between delay and cancellation -
  still needs a word from Luxembourg