Nelson and Others v Deutsche Lufthansa AG and TUI Travel plc and Others v Civil Aviation Authority (2012) C-581/10 and C-629/10 CJEU (Grand Chamber)
European Court of Justice, Grand Chamber
Facts
15 The Nelsons booked a flight for themselves with Lufthansa from Frankfurt am Main (Germany) to Lagos (Nigeria), departing on 27 July 2007 and returning from Lagos to Frankfurt am Main on 27 March 2008 on flight No LH 565. The scheduled departure time for that return flight was 22.50. On 27 March 2008, the Nelsons arrived in good time at Lagos airport. However, the return flight did not depart at the scheduled time and they were accommodated in a hotel. At 16.00 on 28 March 2008 they were collected from their hotel and taken to the airport. Flight LH 565 finally departed at 01.00 on 29 March 2008 by means of a replacement aircraft which Lufthansa had brought in from Frankfurt am Main, which had the same flight number and most of the same passengers. The plane landed in Frankfurt am Main at 07.10, that is, more than 24 hours later than the arrival time originally scheduled.
16 Following that flight, the Nelsons brought an action before the referring court. They requested, inter alia, that Lufthansa be ordered to pay each of them EUR 600 plus interest for the delay on the basis of Articles 5(1)(c) and 7 of Regulation No 261/2004.
17 In that regard, Lufthansa contends that, since the flight was operated, it cannot be a question of a ‘cancellation’ within the meaning of Article 2(l) of Regulation No 261/2004, but rather one of delay for which that regulation does not provide a right to compensation.
[…]
21 TUI Travel plc is an international leisure group which owns seven airlines, including Thomson Airways based in the United Kingdom. British Airways plc and easyJet Airlines Company Ltd are airlines operating international scheduled passenger flights.
22 The International Air Transport Association is an international trade body representing some 230 airlines which themselves comprise 93% of scheduled international air traffic.
23 The Civil Aviation Authority is the United Kingdom’s independent aviation regulator. Its activities include economic regulation, airspace policy, safety regulation and consumer protection. It is responsible for enforcing aviation regulation in the United Kingdom.
24 TUI Travel and Others requested confirmation from the Civil Aviation Authority that it would not interpret Regulation No 261/2004 as imposing an obligation on airlines to compensate their passengers in the event of delay. The Civil Aviation Authority refused that request, stating that it was bound to give effect to the ruling in Sturgeon and Others.
25 Consequently, TUI Travel and Others brought proceedings before the referring court in order to challenge the position of the Civil Aviation Authority.
Issue(s)
20 In those circumstances the Amtsgericht Köln (Local Court, Cologne) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Does the right to compensation provided for in Article 7 of Regulation No 261/2004 constitute a claim for non-compensatory damages within the meaning of the second sentence of Article 29 of the [Montreal Convention]?
2. What is the relationship between, on the one hand, the right to compensation based on Article 7 of Regulation No 261/2004 which a passenger has, according to the judgment […] in [Sturgeon and Others], if he reaches his final destination three hours or more after the scheduled arrival time and, on the other hand, the right to compensation in respect of delay provided for in Article 19 of the Montreal Convention, regard being had to the exclusion [of non-compensatory damages] under the second sentence of Article 29 of the Montreal Convention?
3. How may the interpretative criterion underlying the Court of Justice’s judgment in Sturgeon and Others, which allows the right to compensation under Article 7 of Regulation No 261/2004 to be extended to cover cases of delay, be reconciled with the interpretative criterion which the Court of Justice applied to that regulation in its judgment in Case C-344/04 IATA and ELFAA [2006] ECR I-403?’
[…]
26 […] The High Court of Justice of England and Wales, Queen’s Bench Division (Administrative Court), decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Are Articles 5 to 7 of Regulation […] No 261/2004 to be interpreted as requiring the compensation provided for in Article 7 [of that regulation] to be paid to passengers whose flights are subject to delay within the meaning of Article 6 [of that regulation], and if so in what circumstances?
[…]
3. If question 1 is answered in the affirmative, are Articles 5 to 7 of Regulation […] No 261/2004 invalid, in whole or in part, for
(a) inconsistency with the Montreal Convention;
(b) breach of the principle of proportionality; and/or
(c) breach of the principle of legal certainty?
4. If question 1 is answered in the affirmative and question 3 in the negative, what if any limits are to be placed upon the temporal effects of the Court’s ruling in this case?
[…]’
Discussion
32 On the other hand, no provision of Regulation No 261/2004 specifically grants fixed compensation to passengers who learn at the very last moment before their flight, or even during that flight, that there will be a long delay, and that they will reach their final destination three hours or more after the arrival time originally scheduled.
33 In that regard, it should be noted that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Sturgeon and Others, paragraph 48 and the case-law cited).
34 Passengers whose flights are delayed and those whose flights are cancelled must be considered as being in comparable situations, for the purposes of compensation under Regulation No 261/2004, because those passengers suffer similar inconvenience, namely, a loss of time equal to or in excess of three hours in relation to the original planning of that flight (see Sturgeon and Others, paragraph 54).
35 In addition, passengers in either group are in practice denied the opportunity to reorganise their travel arrangements freely, since they are faced either with a serious incident in the operation of their flight which is about to depart or already underway, or with the cancellation of their flight giving rise, as the case may be, to an offer to re-route. Consequently, if, for one reason or another, they are absolutely required to reach their final destination at a particular time, they cannot avoid the loss of time inherent in the new situation, having no leeway in that regard.
36 Those considerations are moreover supported by the final part of recital 3 in the preamble to Regulation No 261/2004 which — by referring, inter alia, to the fact that the number of passengers affected by cancellations without prior warning and by long delays is too high — implicitly emphasises that the inconvenience suffered by those two groups of passengers is equivalent.
37 In those circumstances, and in view of the fact that the aim pursued by Regulation No 261/2004 is to increase protection for all air passengers, passengers whose flights are delayed by three hours or more cannot be treated differently from those receiving compensation under Article 5(1)(c)(iii) of that regulation, since such unequal treatment as between those two groups is not duly justified in the light of the aims pursued by the regulation (see Sturgeon and Others, paragraphs 59 and 60).
38 In order to alleviate such unequal treatment, Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are the subject of long delay may receive the same compensation, namely that laid down in Article 5(1)(c)(iii) of that regulation, as passengers whose flights are cancelled (see Sturgeon and Others, paragraph 61).
39 That said, it should be added that, with the adoption of Regulation No 261/2004, the legislature was also seeking to strike a balance between the interests of air passengers and those of air carriers. Having laid down certain rights for those passengers, it provided at the same time, in recital 15 and Article 5(3) of that regulation, that air carriers are not obliged to pay compensation if they can prove that the cancellation or long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances which are beyond the air carrier’s actual control (Sturgeon and Others, paragraph 67).
40 In the light of the foregoing the answer to question 1 in Case C-629/10 is that Articles 5 to 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed are entitled to compensation under that regulation where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.
[…]
46 In paragraph 45 of IATA and ELFAA, the Court held that it does not follow from Articles 19, 22 and 29 of the Montreal Convention, or from any other provision thereof, that the authors of that convention intended to shield air carriers from any form of intervention other than those laid down by those provisions, in particular action which could be envisaged by the public authorities to redress, in a standardised and immediate manner, the damage that is constituted by the inconvenience that delay in the carriage of passengers by air causes, without the passengers having to suffer the inconvenience inherent in the bringing of actions for damages before the courts.
47 Even though the scope of the questions referred for a preliminary ruling concerning compatibility with the Montreal Convention was limited to the standardised and immediate measures of assistance and care laid down in Article 6 of Regulation No 261/2004, the Court did not rule out that other measures, such as that of compensation laid down in Article 7 of that regulation, may fall outside the scope of the Montreal Convention.
48 That last measure was specifically examined in Sturgeon and Others, in which the Court stated, first, that loss of time constitutes an inconvenience covered by Regulation No 261/2004, like the other inconveniences which the measures laid down by that regulation must redress. Second, it found that that inconvenience must be redressed by means of compensating the passengers concerned pursuant to that regulation (see, to that effect, Sturgeon and Others, paragraphs 52 and 61).
49 In that connection, it should be made clear that, like the inconveniences referred to in IATA and ELFAA, a loss of time cannot be categorised as ‘damage occasioned by delay’ within the meaning of Article 19 of the Montreal Convention, and, for that reason, it falls outside the scope of Article 29 of that convention.
50 Article 19 of the Montreal Convention implies, in particular, that the damage arises as a result of a delay, that there is a causal link between the delay and the damage and that the damage is individual to passengers depending on the various losses sustained by them.
51 First of all, a loss of time is not damage arising as a result of a delay, but is an inconvenience, like other inconveniences inherent in cases of denied boarding, flight cancellation and long delay and encountered in them, such as lack of comfort or the fact of being temporarily denied means of communication normally available.
52 Next, a loss of time is suffered identically by all passengers whose flights are delayed and, consequently, it is possible to redress that loss by means of a standardised measure, without having to carry out any assessment of the individual situation of each passenger concerned. Consequently, such a measure may be applied immediately.
53 Lastly, there is not necessarily a causal link between, on the one hand, the actual delay and, on the other, the loss of time considered relevant for the purpose of giving rise to a right to compensation under Regulation No 261/2004 or calculating the amount of that compensation.
54 The specific obligation to pay compensation, imposed by Regulation No 261/2004, does not arise from each actual delay, but only from a delay which entails a loss of time equal to or in excess of three hours in relation to the time of arrival originally scheduled. In addition, whereas the extent of the delay is normally a factor increasing the likelihood of greater damage, the fixed compensation awarded under that regulation remains unchanged in that regard, since the duration of the actual delay in excess of three hours is not taken into account in calculating the amount of compensation payable under Article 7 of Regulation No 261/2004.
55 In those circumstances, the loss of time inherent in a flight delay, which constitutes an inconvenience within the meaning of Regulation No 261/2004 and cannot be categorised as ‘damage occasioned by delay’ within the meaning of Article 19 of the Montreal Convention, cannot come within the scope of Article 29 of that convention.
56 Consequently, the obligation under Regulation No 261/2004 intended to compensate passengers whose flights are subject to a long delay is compatible with Article 29 of the Montreal Convention.
57 Furthermore, it should be stated that the obligation to pay compensation which stems from Regulation No 261/2004 is additional to Article 29 of the Montreal Convention, inasmuch as it operates at an earlier stage than the system laid down in that Article (see, to that effect, IATA and ELFAA, paragraph 46).
58 It follows that that obligation to pay compensation does not itself prevent the passengers concerned, should the same delay also cause them individual damage conferring entitlement to compensation, from being able to bring in addition actions to obtain, by way of redress on an individual basis, damages under the conditions laid down by the Montreal Convention (see, to that effect, IATA and ELFAA, paragraphs 44 and 47).
59 In that connection, the Court has held, when interpreting Article 12 of Regulation No 261/2004, entitled ‘Further compensation’, that that article is intended to supplement the application of measures provided for by that regulation, so that passengers are compensated for the entirety of the damage that they have suffered due to the failure of the air carrier to fulfil its contractual obligations. That provision thus allows the national court to order the air carrier to compensate damage arising, for passengers, from breach of the contract of carriage by air on a legal basis other than Regulation No 261/2004, that is to say, in particular, in the conditions provided for by the Montreal Convention and national law (Case C-83/10 Sousa Rodríguez and Others [2011] ECR I-9469, paragraph 38).
60 In the light of the foregoing, consideration of questions 1 and 2 in Case C-581/10 and of question 3(a) in Case C-629/10 has disclosed no factor of such a kind as to affect the validity of Articles 5 to 7 of Regulation No 261/2004.
Useful for
Standardised statutory delay compensation is payable under EU261
Treaty provisions considered
Legislation considered
EU Regulation 261/2004/Key subjects or concepts
Damages/ Local Law on Consumers/ Scope under MC99/Appeals history
No relevant appeals or appeal history identified for this case.Other case information
Lawyers or counsel before the European Court of Justice, Grand Chamber:No counsel or legal team identified for this case.
Additional case references or citations:
Emeka Nelson, Bill Chinazo Nelson and Brian Cheimezie Nelson v Deutsche Lufthansa AG and TUI Travel plc, British Airways plc, easyJet Airline Company Ltd and International Air Transport Association v Civil Aviation Authority, Joined Cases C-581/10 and C-629/10, ECLI:EU:C:2012:657.
Do you have a suggestion, correction or update for this case?
