28 June 2011: ECJ Advocate General's opinion in case C-83/10 Sousa Rodriguez and others
A story as one of many you may have heard recently: consumers travelling by air and encountering some troubles with their flight. What makes this case special?
Firstly, it was uncertain whether their flight could be considered as being cancelled (thus enabling them to claim compensation and assistance on the basis of the Air Passenger Compensation Regulation 261/2004 of 11 February 2004) since their flight took off as planned. However, just a short time later it had to turn around and return to the take-off airport due to a technical problem with the plane. Eventually, the passengers were rebooked and flew the following day.
Secondly, aside the standard amount of compensation that passengers have a right to claim on the basis of Article 7 of this Regulation (250 euro in this case), Article 12 gives passengers rights to claim "further compensation". The Spanish judge presiding this case seeks ECJ's guidance as to what might fall under this "further compensation", i.e. what kind of costs might consumers claim. In the given case, consumers tried claiming both material damages of various sorts (e.g. cost of a taxi from the airport to their home; cost of meals at the airport when they had not received assistance from the airline; cost of additional day in boarding kennels for consumers' dogs) as well as non-material damages for the suffering (from 300 to 650 euro each). The Spanish judge asks whether he should evaluate the claim for further compensation on the basis of established national legislation and case-law on breach of contract or whether he can only grant such compensation that is substantiated as consumer's expenses that had not been adequately indemnified by the carrier on the basis of Article 8 and 9 of the Regulation (which grant passengers right to reimbursement of their flight and right to care, i.e. accommodation and meals, etc.).
The AG states, as far as the first question is concerned, that it needs to be answered on the basis of the case at hand and not in general, i.e. ECJ should give an answer as to an aircraft leaving the take-off airport as planned and returning back to it after just a few minutes, and never being resumed. The ECJ's answer would not be automatically relevant for every flight that took off as planned but had not reached its planned destination for whatever reason. (Recital 28 and 29). The question then is:
"Does the term ‘cancellation’, as defined in Article 2(l) of the Regulation, mean only the failure of the flight to depart as planned or does it also include the case in which the flight returns to the airport of departure and proceeds no further?" (Recital 31)
The answer is given in Recital 35:
"It seems to me that, when a flight is planned to carry passengers and their baggage from A to B, and when it departs from A as planned but then returns to A and proceeds no further, simply disgorging its passengers and their baggage at their point of departure, that flight cannot be said to have operated. No part of the ‘unit of transport’ which was due to be performed by the air carrier, according to the itinerary fixed by that carrier, has in fact been performed. Nothing of the essence of the operation has been achieved. The carrier has carried no one, and nothing, anywhere. The passengers are in the same situation as if they had remained in the departure lounge, with no hope of taking their planned flight. Another means of getting them to B will have to be found, since the flight which was previously planned will not be taking them there."
As far as the second question is concerned, regarding the sort of damage that consumers might recover, the AG considers the matter as simple: any type of damage might be claimed, in accordance with national law and Montreal Convention. (Recital 59) In Walz the ECJ has already established that the 'damage' referred to in the Montreal Convention could be both material and non-material damage. What is especially interesting is that in Recital 61 the Advocate General states that the consumer does not have to ask the air carrier, at the relevant time, for care and assistance on the basis of Article 8 and 9 of he Regulation in order to later be able to claim compensation for expenses he had made.
"The obligation to provide care and assistance is in no way contingent on a request by the passenger"
Neither has the consumer an obligation to explicitly rely on these articles while making a claim in front of the national judge (Recital 60). Moreover, the AG considers the compensation under Article 7 and the one under Article 8 and 9 to be "concurrent and cumulative" which means that the "further compensation" paid to the consumer cannot be offset from the amount of compensation under Article 7. (Recital 63)
It is a very interesting opinion, granting more rights to air passengers. It remains to be seen what ECJ will decide in this case.
