Flight delays: member States judges stop resisting the Sturgeon case law

16[1]The rule laid down by the European Union Court of Justice in the Sturgeon case which grants compensation to air passengers when they arrive late by three hours or more has been vigorously opposed.

In 2009, in the significant Sturgeon case (CJUE 19 Nov. 2009 cases C-402/07 and C-432/07 Sturgeon and al. v Condor and al.) the European Union Court of Justice decided that passengers whose flights are delayed should be treated as passengers whose flights are cancelled for the purposes of the application of the right to compensation set out in Article 7 of the EC Regulation No261/2004 of 11 February 2004.

It should be noted that the EC Regulation does not expressly provide a right to compensation for passengers whose flights has been delayed. In such a case, only a right to assistance is expressly indicated. Indeed, Article 6 on delays does not refer to article 7 on right to compensation. Thus, only a flight cancellation (Article 5) or denied boarding (Article 4) can possibly give rise to a right to compensation pursuant to abovementioned Article 7. The European legislator decided to distinguish two situations: delays and cancellations.

In fact, compensation of air passengers in case of flight delay is set out in Article 19 of the Montreal Convention (or as the case may be in Article 19 of the Warsaw Convention). In such a case, compensation should be granted exclusively in accordance with international law, i.e. in accordance with the Montreal Convention – to which the EU became a member.

The position of the European legislator hereinabove was therefore well founded in this respect.

However, in the search for a large protection of air passengers, the ECJ decided in the above mentioned Sturgeon case:

Articles 5, 6 and 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, 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 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.”

Such a construction was undoubtedly extensive and possibly contra legem – to such extent that airlines refused in a first stage any compensation in case of flights delays. They were approved by various lower courts in member States which refused to give effect to such a case law which was beyond the wording of the regulation.

The ECJ noticeably confirmed this case law (CJUE 23 Oct. 2012 C-581/10 and C-629/10 Nelson and al. v Deutsche Lufthansa AG and TUI Travel and al. v Civil Aviation Authority). Furthermore, the ECJ indicated that its case law, as confirmed in the Nelson case, did not infringe the principle of separation of powers (CJUE 18 april 2013 ord. C-413/11 German Wings GmbH v Th Amend). The debate on the extensive construction of the EC Regulation in respect of flights delays should then have been closed.

However, it was possible to find lower courts which were incline to resist to the European case law.

It was the case of the French Commercial Court in Bobigny. It refused to give effect to the Sturgeon case law in four different matters pleaded in 2014.

The reasoning of the commercial Court was as follows: the European case law was only interpretative but not binding as the ECJ has no legislative power. Thus the European case law could not be applied in France where the rule of precedent is not permitted. It further concluded that the EC Regulation wording was clear enough to consider that no reference to Article 7 on right to compensation was made by article 6 on delays. The French Court thus rejected the compensation claims of the passengers.

The passengers appealed the case to the Cour de Cassation which is the highest Court in France. In four cases rendered on the same day, the Cour de Cassation decided to infirm the commercial Court’s decisions (Cass. Civ. 1, 15 June 2016 n°15-16356, 15-16357, 15-16358, 15-16359).

It should be mentioned that shortly before, in 2015, the Cour de Cassation had already implemented the European case law set out in the Sturgeon case. It confirmed that passengers should be compensated when they suffer a loss of time equal to or in excess of three hours in case of flight delays (Cass. Civ. 1, 15 January 2015 n°13-25351).

Not surprisingly, in these four cases, the Cour de Cassation summarizes the Sturgeon case law and confirmed that this solution is binding on member States judges… In addition, the Court rejects the demand for a preliminary ruling as a further construction of the EC Regulation in this respect would be pointless.

Even if these four decisions will not give rise to high diffusion from the Cour de Cassation, they will certainly put an end to further attempt of resisting rulings.

The rule outlined in the Sturgeon case is not fully satisfying for two reasons.

First, for economic reasons. Even if the Regulation compensation seems quite low, in fact it represents a significant charge for airlines which also have to support other costs (assisting costs, etc.). Therefore, the right to compensation in case of flight delays will be redefined in the proposal of regulation amending the EC Regulation No 261/2004 (Proposal no 2013/0072) so as to find a fair balance between passengers’ protection and airlines interests.

Second, for legal reasons. It appears that the right to compensation can apply without prejudice to a further compensation. Compensation of Article 7 would thus be added to damages based on the Montreal Convention (in respect of flight delay) pursuant to Article 12 of the European Regulation[1]. However, the conditions to obtain both Regulation compensation and damages are not clear: can the compensation granted under the regulation be deducted from damages in which case the passenger is fully compensated, or can this be added in which case the compensation granted under the regulation is considered as a penalty? The provision of Article 12.1. in fine lets the member States judges free to rule on this. Nevertheless, in the regulation proposal, in its amended version, it seems that passengers would be entitled to claim both compensations, in full.

Passengers rights should deserve protection with consideration for airlines interests, and in particular those of European airlines which are directly affected by the EC regulation. This will be the main issue of the regulation proposal, hoping for some sort of balance between such opposite interests.

[1] Article 12 of the regulation is not a legal basis as such to obtain a further compensation (CJUE 13 Oct. 2011 C-83/10 Sousa Rodriguez v Air France).