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World Tourism Day and Air Passenger Rights

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On September 27, the United Nations World Tourism Organization (UNWTO) annually celebrates World Tourism Day. The UNWTO is a UN specialized agencyresponsible for the promotion of responsible, sustainable and universally accessible tourism.” One of its goals is to “advocate[e] the value of tourism as a driver of socioeconomic growth and development.” I personally enjoy travelling and always look forward to exploring new places. Even better if I can contribute to socioeconomic growth and development in the process. However, sometimes the joy of travelling is diminished by lost luggage, delayed or cancelled flights, or airline strikes. The European Court of Justice (ECJ) had to decide several cases this year that dealt with air passenger rights in those types of situations. This blog post will give a brief overview of air passenger rights in the European Union (EU).

General Legal Framework

Air passenger rights in the EU are generally regulated in the EU Regulation on Air Passenger Rights. The Regulation establishes minimum rights for passengers in the event that they are denied boarding against their will, their flight is cancelled, or their flight is delayed. (EU Regulation on Air Passenger Rights, art. 1). It is applicable to flights within the EU and to flights that depart from the EU to a non-EU country. It does not matter whether the flight is operated by an EU or a non-EU airline. In addition, it applies to flights that arrive in the EU from outside the EU (third country) and are operated by an EU airline, if the passengers have not received benefits or compensation and assistance under the law of that third country. (Id. art. 3). Passengers are entitled to compensation and assistance when they experience one of the covered events.

In cases of delayed, lost, destroyed, or damaged luggage, the EU Regulation on Air Carrier Liability in Respect of the Carriage of Passengers and Their Baggage provides that passengers may claim compensation from the air carrier in the amount of up to 1,000 Special Drawing Rights (SDRs) (approximate amount in local currency). (EU Regulation on Air Carrier Liability, annex). One thousand SDRs are currently equivalent to around US$1,404.

Guatemala is only one day away via Pan American. (Lawler, Paul George, artist. 1938.) Library of Congress Prints and Photographs Division,

Recent Case Law of the ECJ

In 2018, the ECJ had to decide several cases, which clarified some of the air passenger rights mentioned above. The following is a short summary of those decisions.

Reimbursement of the Price of a Ticket in the Event of Cancellation of a Flight

In September, the ECJ held in “Dirk Harms and Others v. Vueling Airlines SA” that when the airline cancels a flight, it must also reimburse commissions collected by intermediaries when tickets are bought, as long as it was aware of them. (Case C-601/17, Sept. 12, 2018, ECLI:EU:C:2018:702). In the case at issue, the plaintiff purchased the tickets on the website for a flight from Hamburg, Germany to Faro, Portugal with Vueling Airlines. However, when the airline cancelled the flight, it refused to refund the commission that Opodo received. The district court in Hamburg (Amtsgericht Hamburg) stayed the proceedings and asked the ECJ for a preliminary ruling on whether and to what extent a commission paid to an intermediary forms part of the price of the ticket for purposes of reimbursement. The ECJ noted that its interpretation of the Regulation corresponds to the objectives of the Regulation which are ”to ensure a high level of protection for passengers but also to strike a balance between the interests of passengers and those of air carriers.”

Airline Responsible for Compensation in the Case of Leasing

In July, the ECJ decided in “Wolfgang Wirth and Others v. Thomson Airways Ltd.” that the airline which decided to perform the flight and not the one that leased the aircraft and crew is responsible for paying compensation in the event of long flight delay. The plaintiff booked a flight from Hamburg, Germany to Cancún, Mexico with the air company TUIfly. The flight was operated by Thomson Airways, whose aircraft and crew TUIfly used under a “wet lease.” The plaintiff claimed compensation for a significant delay from Thomson Airways, which denied the claim. The ECJ held that the airline that had operational responsibility for the flight, meaning TUIfly in this case, was the “operating air carrier” within the meaning of the Regulation and therefore liable to pay compensation for delays. (Case C-532/17, July 4, 2018, ECLI:EU:C:2018:527).

Right to Compensation for Delays for Connecting Flights

In May, the ECJ clarified the concept of “connecting flights.” It held in “Claudia Wegener v. Royal Air Maroc SA” that the right to compensation for long delays of flights applies to connecting flights to third states with stopovers outside the EU. The plaintiff had booked a flight with Royal Air Maroc from Berlin, Germany to Agadir, Morocco, with a stopover and change of aircraft in Casablanca, Morocco. However, she was denied boarding in Casablanca as her seat had been reassigned, and instead, the airline put her on a flight that arrived four hours after her originally scheduled time of arrival. The airline denied her claim for compensation. The ECJ held that even though the EU Regulation does not apply to flights effected exclusively outside the EU, in this case, the flights were booked as a single unit and therefore constituted a single connecting flight. (Case C-537/17, May 31, 2018, ECLI:EU:C:2018:361).

“Wildcat Strike” by Flight Staff

In April, the ECJ ruled in “Helga Krüsemann and Others v TUIfly GmbH” that a “wildcat strike’” by flight staff following the surprise announcement of a restructuring does not constitute an “extraordinary circumstance” releasing the airline from its obligation to pay compensation in the event of cancellation or long delay of flight.  A “wildcat strike” is defined as a “work stoppage undertaken by employees without the consent of their respective unions,” often in violation of the terms of a collective bargaining agreement. In September 2016, the German airline TUIfly surprisingly announced that it would restructure the company. Out of protest, a significant part of the flight staff spontaneously decided to go on sick leave and asked other workers to do the same, which caused significant delays and flight cancellations. The ECJ stated that ”extraordinary circumstances” within the meaning of the EU regulation on Air Passenger Rights did not exist in the case at issue. It noted that the strike resulted from the restructuring decision of the airline and that such management decisions and the resulting disagreements with workers are part of the ordinary course of business. In addition, it held that the classification of the strike under German law as legal or illegal had no influence on the interpretation of the term “extraordinary circumstances” within the meaning of the EU Regulation, because it would undermine the purpose of the Regulation. (Joined Cases C‑195/17, C‑197/17 to C‑203/17, C‑226/17, C‑228/17, C‑254/17, C‑274/17, C‑275/17, C‑278/17 to C‑286/17 and C‑290/17 to C‑292/17, Apr.17, 2018, ECLI:EU:C:2018:258).

International Jurisdiction for Compensation Claims

In March, the ECJ had to decide where an action against an airline could be brought if the airline only operated the first leg of a connecting flight in one EU Member State. In the case, the air passengers booked with Air Berlin and Iberia connecting flights from Spain to Germany in one single booking. The Spanish airline Air Nostrum operated the domestic flights in Spain on behalf of Air Berlin and Iberia and these flights had delays. Due to the delays, the passengers missed their connection to Germany and sued Air Nostrum for compensation before a German court. The ECJ held that the final destination in Germany can be considered the place of performance of the services with respect to the second flight, as well as the first domestic flight in Spain. The German court therefore had international jurisdiction to hear the case. (Joined Cases C-274/16, C-447/16 and C-448/16, Mar. 7, 2018, ECLI:EU:C:2018:160).

Safe travels!

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