Friday, 20 April 2012

Airlines liable for denying boarding even as a result of extraordinary circumstances - AG's Bot opinion in Finnair (C-22/11)

19 April 2012: AG's Bot opinion in case Finnair Oyj v Timy Lassooy (C-22/11)

Yesterday, Advocate General Bot issued another opinion in a case concerning air passengers' rights. This time, there was a strike by staff at Barcelona airport in Spain on 28 July 2006, which resulted in cancelling the flight of Finnair from Barcelona to Helsinki scheduled for 11:40 that day. Finnair decided that its passengers should not have to wait too long to go back to Finland and reshuffled passengers for the flights in the coming few days. That meant that passengers from 28th of July could fly out the next day on the 11:40 flight or at a specially arranged flight departing at 21:40 that day. However, passengers that were scheduled for the 29th of July were put on flights on the 30th of July, and so on... Mr Lassooy had a flight for 11:40 on the 30th of July, but was able to get a seat only on the 21:40 flight.

Mr Lassooy claimed that he was denied boarding by Finnair at his scheduled flight and asked for compensation of 400 euro, as provided by the Regulation 261/2004 in case of flights of more than 1500 kilometres. The Finnish court asked the CJEU for help with interpreting the 'denied boarding' term used in this Regulation, in order to be able to assess whether compensation should be paid to the passenger.

AG Bot states in his opinion that the concept of 'denied boarding' must be interpreted broadly and should not be limited to situations of overbooking the flight. (Par. 35) This flows from the preparatory works on the Regulations as well as its purpose: ensuring high level of protection of air passengers. (Par. 36) In the given case, the flight for which Mr Lassooy bought a ticket had left as scheduled. This meant, that if the passenger was not seen as having been denied boarding, he would not be able to claim any compensation or assistance since the flight was not cancelled nor delayed. (Par. 39) It cannot be denied, that the passenger experienced inconvenience and serious trouble that the Regulation aims at alleviating.

Moreover, the 'denied boarding' cannot be justified by grounds relating to the rescheduling of flights as a result of extraordinary circumstances, such as a strike at an airport. (Par. 62) AG Bot mentions that the only justification for the denied boarding that would release the airline from having to compensate its passengers is when passengers are denied boarding based on their personal situation. This is because the 'denied boarding' is an arbitrary measure of an airline for which it needs to take responsibility, unless it happened due to passengers own fault, e.g., not providing necessary travel documents, endangering the safety of the flight, etc. (Par. 47)

"(...) the decision to deny boarding based on reasons which are wholly unrelated to the passenger concerned cannot have the effect of depriving him of all protection." (Par. 48)

AG Bot mentions also that since the airport strike cannot be attributed to Finnair, the airline may seek compensation from the persons responsible for the damage it had suffered. (Par. 56)

AG Bot addressed also the question of equal treatment in his opinion. (Par. 57) In case of extraordinary circumstances such as in this case, passengers whose flight will be cancelled or delayed due to these circumstances will not be able to claim compensation but only assistance from the airline (based on exception in Article 5(3) of the Regulation). At the same time, passengers who will be denied boarding due to the same circumstances will be able to claim compensation from the airlines. However, the AG does not consider the comparison between these passengers as appropriate since they are not in the same position. (Par. 48)

"(...) denied boarding does not affect all the passengers on a flight, but one or more passengers who have nevertheless duly presented themselves for boarding. Simply on the arbitrary decision of the air carrier, the passenger who has been denied boarding will not be on the flight for which he had a reservation, a flight which will be operated in accordance with scheduling arranged by the air carrier. It is different in the case of flight cancellation or delay, since, in such cases, all the passengers are concerned and affected in the same way." (Par. 59)

Additionally, when extraordinary circumstances arise it is beyond the airlines control and they have no choice but to cancel or delay the flight, therefore, they should not be held liable for it. (Par. 60) On the other hand, when a passenger is denied boarding, it is due to a decision of an airline, an arbitrary one, based on which one or more passengers suffer trouble and inconvenience. (Par. 61)

"(...) because the harm suffered is attributable to the air carrier, compensation is payable in order to dissuade the carrier from resorting to such a practice and to give more importance to calling for volunteers to surrender their reservations (...)." (Par. 61)

While this opinion is passengers-friendly, its consequences for air passengers may be far from satisfactory. If the CJEU upholds this opinion, then the airlines will try to avoid rescheduling flights of passengers, and therefore denying them boarding. This will have negative consequences for passengers whose flights will get cancelled since they will no longer have priority to get seats on the next flight to their destination. Airlines are likely to want to avoid paying compensation to more passengers, so they will proceed with the scheduled flights as planned, and only assign the not yet taken seats to passengers from previous, cancelled flights. This may lead to longer delays in reaching their destination by passengers of cancelled flights.

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