Joined Cases C‑581/10 and C‑629/10, Nelson and others

Court confirms its 2009 Sturgeon  judgment 


>> Regulation No 261/2004 provides that, if their flights are cancelled, passengers may receive fixed compensation amounting to between €250 and €600. In the judgment in Sturgeon and Others (Joined Cases C-402/07 and C-432/07, Sturgeon and Others [2009] ), the Court of Justice found that if passengers reached their final destination three hours or more after the arrival time originally scheduled, they may claim fixed compensation from the airline, unless the delay was caused by extraordinary circumstances.
In Case C‑581/10, the referring court was hearing a dispute between passengers and the airline Lufthansa concerning the delay to the passengers’ flight of more than 24 hours in relation to the original schedule.  In C-629/10, TUI Travel, British Airways, easyJet Airline and the International Air Transport Association (IATA) had brought proceedings before UK Courts following the Civil Aviation Authority’s refusal, on the ground that it was bound to give effect to the ruling in Sturgeon and Others, of their request not to impose on them an obligation to compensate passengers whose flights were delayed.
The referring courts inter alia asked whether, and if so under what conditions, passengers whose flights were delayed enjoyed the right to compensation under Regulation 261/2004.

The Court of Justice reiterated that the principle of equal treatment required that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment was objectively justified (Joined Cases C-402/07 and C-432/07 Sturgeon and Others [2009]).

The Court argued that passengers whose flights were delayed and those whose flights were cancelled must be considered as being in comparable situations, for the purposes of compensation under Regulation 261/2004, because those passengers suffered similar inconvenience, namely, a loss of time equal to or in excess of three hours in relation to the original planning of that flight.

The Court concluded that Articles 5 to 7 of Regulation 261/2004 must be interpreted as meaning that passengers whose flights were delayed were entitled to compensation under that regulation where they suffered, on account of such flights, a loss of time equal to or in excess of three hours, that was, where they reached their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay did not, however, entitle passengers to compensation if the air carrier could prove that the long delay was 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.

The referring courts furthermore asked whether Arts 5 to 7 of Regulation 261/2004 were valid in the light of the second sentence of Art. 29 of the Montreal Convention, if they were interpreted as meaning that passengers whose flights were delayed and who reached their final destination three hours or more after the arrival time originally scheduled by the air carrier were entitled to compensation under that regulation.

The Court reiterated that in Case C-344/04 IATA and ELFAA [2006], the Court held that it did not follow from Arts 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 was constituted by the inconvenience that delay in the carriage of passengers by air caused , without the passengers having to suffer the inconvenience inherent in the bringing of actions for damages before the courts.

The Court held that, like the inconveniences referred to in IATA and ELFAA , a loss of time could not be categorised as “damage occasioned by delay” within the meaning of Art. 19 of the Montreal Convention, and, for that reason, it fell outside the scope of Art. 29 of that convention.

 The Court found that the loss of time inherent in a flight delay, which constituted an inconvenience within the meaning of Regulation 261/2004 and could not be categorised as “damage occasioned by delay” within the meaning of Art. 19 of the Montreal Convention, could not came within the scope of Art. 29 of that convention. Consequently, the obligation under Regulation 261/2004 intended to compensate passengers whose flights were subject to a long delay was compatible with Art. 29 of the Montreal Convention.

It followed that that obligation to pay compensation did 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.

In that connection, the Court had held, when interpreting Art. 12 of Regulation 261/2004, entitled “Further compensation’, that that Article was intended to supplemented the application of measures provided for by that regulation, so that passengers were compensated for the entirety of the damage that they had suffered due to the failure of the air carrier to fulfil its contractual obligations. That provision thus allowed 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 261/2004, that was to say, in particular, in the conditions provided for by the Montreal Convention and national law (see  also: Case C‑83/10 Sousa Rodríguez and Others [2011]).

The referring courts also asked whether Arts 5 to 7 of Regulation 261/2004, as interpreted by Sturgeon and Others , were valid in the light of the principle of legal certainty.

The Court of Justice held that as regards the clarity of the obligations imposed on air carriers, it should be borne in mind that the principle of legal certainty required that individuals should be able to ascertain unequivocally what their rights and obligations were and take steps accordingly (see Case 169/80 Gondrand and Garancini [1981]; Case C‑143/93 Van Es Douane Agenten [1996]; and Case C‑110/03 Belgium v Commission [2005]).

The Court however held that, having regard to the requirements arising from the principle of equal treatment, air carriers could not rely on the principle of legal certainty and claim that the obligation imposed on them by Regulation 261/2004 to compensate passengers, in the event of delay to a flight, up to the amount laid down therein infringed the latter principle.