The Court of Justice came out of its summer break yesterday and published a judgment in the case Rusu (C-354/18), further clarifying the application of Regulation No 261/2004 on air passenger rights.
Mr and Mrs Rusu were supposed to fly with Blue Air airlines from Romania to the UK, but they were denied boarding due to a last minute change of an operating aircraft, which resulted in fewer seats and overbooking. They have then been re-routed on another flight, which only took place 5 days later. Blue Air first offered the passengers a free flight ticket as compensation, which offer has been rejected as not fully compensating their loss. Subsequently, they have been offered compensation from Regulation No 261/2004 - 400 Euro each. As the passengers experienced loss that was not covered by this amount of compensation, they filed a claim for further compensation to be paid out to them. This was to cover both material damages - having lost part of their earnings as they were not able to report to work on agreed time - and non-material damages - loss from having experienced a threat of being fired from their job. Blue Air claimed that further compensation should not be awarded to the passengers, as they have agreed to the proposed offer of re-routing, without explicitly emphasising the need to be re-routed on an earlier date, perhaps by another air carrier.
As a reminder, Art. 7(1) Regulation No 261/2004 awards passengers a right to compensation, which has been determined in CJEU's case law and scholarship to compensate passengers for the standardised loss of time (amount of compensation is dependant on the distance of the flight) (para. 30). Additional individual losses may be compensated further based on the provisions of national law, on the basis of Art. 12(1) of this Regulation, which provision also allows national courts to deduct the amount of compensation paid out pursuant to Art. 7(1) from the compensation awarded pursuant to Art. 12(1).
The CJEU indicates explicitly that the loss of earnings by the passengers is a clear example of an individualised loss, which is not covered by the standardised amount of compensation pursuant to Art. 7 Regulation (para. 32-34) and thus can be recovered on the basis of Art 12. It is then up to national courts to determine the individual damage, as well as whether the national requirements for recovering it have been fulfilled (para. 40). Whether the national court decides to deduct from it the amount of compensation paid out pursuant to Art. 7 of the Regulation is left to them to decide on the basis of applicable national or other international law, as well, as Art. 12(1) 2nd sentence provides for such a possibility but not an obligation of deduction (para. 44).
As the operating air carrier raised an issue of the passengers not explicitly emphasising the need to reach their destination as soon as possible, by the best/fastest re-routing possible, the CJEU also considered the scope of air carriers' obligations related to arranging the re-routing on the basis of Art. 8(1) Regulation No 261/2004. The CJEU highlights that this provision places the obligation on the operating air carrier not only to provide the passenger with the choice of reimbursement of their flight tickets or re-routing, but also with all appropriate information to make the choice between these options (para. 53-55). It is, therefore, not expected that the air passengers would actively seek any of the information that the operating air carrier is supposed to provide - e.g. on best re-routing options. As Art. 8(1)(b) of the Regulation requires that the re-routing takes place at the earliest possibility, it is up to the operating air carrier to prove that the proposal made by them to passengers complied with this requirement (para. 61). When putting together a re-routing proposal the air carrier should clearly consider whether the re-routing proposal would transport passengers under similar conditions and at the earliest possibility based on its own resources, or whether it would require a help of another air carrier, in appropriate circumstances, depending on their available seats (para. 60).
Whilst the Regulation No 261/2004 does not place an obligation on operating air carriers to use services of other air carriers to find best re-routing options for their passengers, the CJEU clarifies that if they choose not to do so, they have to be prepared to pay damages under national law. The scope of these damages and under what conditions they will be awarded will differ amongst the Member States then.
