Saturday, 30 March 2019

Avoiding double claims at all cost - AG Saugmandsgaard Øe in Aegean Airlines (C-163/18)

On Thursday AG Saugmandsgaard Øe gave his opinion in the case Aegean Airlines (C-163/18), which examines the relationship between the provisions of Regulation No 261/2004 and Package Travel Directive (old one 90/314/EEC). Both these acts grant certain rights to passengers of cancelled flights, when these cancelled flights form a part of a package travel contract. 

Article 8(2) Regulation 261/2004 states that also passengers whose flights form part of a package travel may claim reimbursement of the full cost of the ticket on the basis of that Regulation, unless their right to reimbursement arises under the PTD. The national court asked for the interpretation of this provision, inquiring whether it limits the rights of passengers to make a claim against the operating air carrier for the reimbursement of the ticket pursuant to the Regulation, when the national law implementing the PTD gave them the right to claim the whole cost of the package travel, including the price of the ticket, from the package travel organiser (para 31). The answer to this question is especially important when the organiser is in liquidation, i.e. is not able to meet the financial obligations of the reimbursement and has not guaranteed such reimbursements, e.g. by not taking out an insurance (para 32). 

The Commission was of the opinion in this case that as long as the passenger does not get compensated in practice by the organiser, the operating air carrier should be held liable for the reimbursement of the ticket (para 33). The airline (obviously) together with the Czech and German governments disagreed (para 34). AG Saugmandsgaard Øe supports the second opinion, following the literal interpretation of the provision of Article 8(2) Regulation 261/2004 (para 36-39). Since Article 8(2) only refers to the right to reimbursement arising pursuant the PTD, it does not require that the passenger can actually acquire the reimbursement in practice. As previously the Court had not always interpreted Regulation 261/2004 on the basis of the wording of its provisions (cases of Sturgeon or Nelson), we will need to see whether the opinion of AG Saugmandsgaard Øe will be followed. Just in case, the AG supports his reasoning also by referring to: the legislative history of Regulation 261/2004, which shows that there were doubts about extending the scope of protection of the Regulation to package travellers (para. 43-45); and to the system of the Regulation, which set up the exception of Article 8(2) narrowly, only applying it to the right to reimbursement of the ticket (para 50), and which seemed to give priority to the protection of the PTD, also through Article 3(6) Regulation 261/2004 (para 52); as well as to the system of the PTD, which aimed to guarantee the reimbursement by organisers by obliging them to set up insolvency protection (para 55). 

The above reasoning of AG Saugmandsgaard Øe could be supported, however, his following statement that this conclusion is not hindering the achievement of the objectives of Regulation 261/2004 is less convincing. He draws attention to the fact that beyond ensuring strong protection of passenger rights the Regulation aimed to restore the balance between passengers and air carriers (para
59). Passengers would be protected too much, according to him, if they could claim reimbursement  both on the basis of Regulation 261/2004 and the PTD (para 64). Well, yes, of course passengers should not be allowed to claim the price of the ticket back twice (para 65), however, it seems in practice this opinion will not allow them to claim it even once. This clearly would not support the main objective of the Regulation. A better solution would then be to interpret Article 8(2) Regulation 261/2004 as only allowing claims on the basis of the Regulation, if for the passenger it is impossible, not only legally but also practically, to make a claim pursuant to the PTD. After all, the air carrier could also be protected by having redress on the package travel organiser. And the package travel organiser should be able to indicate the ticket price as a component of the package price (contrary to the argument made in para 66).

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