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EU Legal Framework for Safeguarding Air Passenger Rights pp 139–200Cite as

Secondary Rights of Passengers

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Abstract

This chapter is fully dedicated to the protection of secondary rights of air passengers. It provides the definition of these rights and describes their nature. It also gives a panoramic overview of International legal framework governing their safeguard. While Chaps. 2–4 concern the provisions of the Montreal Convention, as referred to in Regulation (EC) No 2027/97 (now Regulation (EC) No 889/2002) which extends its applicability to all Community air carriers, with some supplementary provisions, aimed at protecting primary rights of passengers and providing detailed rules for payment in the case of death or injuries, this chapter examines the Regulation only with regard to its provisions on secondary rights, as previously defined. The instances considered by the Montreal Convention are delays in the carriage of passengers and baggage and the destruction, loss or damage to the latter.

The EU legislature, aware of the need to construct a unified framework that included all international and Community provisions granting rights of any nature to passengers and users, adopted a document that could enable passengers to be fully aware of their rights. This is the ‘Charter of Passenger Rights’, a consolidated act on the rights that the European Union confers on passengers and the duties it imposes on air carriers. This Charter is explained by the chapter as well. With regard to the EU legislatures, this chapter also give a wide and deep analysis of Regulation (EC) No 261/2004. This is the main piece of legislation on which any passengers, in particular in cases such as “denied on board”, “cancellation” and “long delay” may rely on to be protected and assisted. The analysis provides some examples about how the legislation is currently applied while not omitting to mention the related problems that arose and are still arising concerning their application. In addition, much space is given over to the case-law of the ECJ on this Regulation and its relationship with the Montreal Convention. Finally, the chapter focuses in depth on the European Commission proposals on the adoption of a new package of measures to reinforce the provisions of air passengers’ rights, clarifying some areas which are still uncertain, introducing new rights and strengthening its procedures and sanctions.

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Notes

  1. 1.

    SEC(2000) 535 of 23 March 2000.

  2. 2.

    COM(2000) 365.

  3. 3.

    White Paper—European transport policy for 2010: time to decide, cit.

  4. 4.

    The Commission has encouraged airlines and airports to prepare voluntary commitments to improve their quality of service. These codes of conduct were presented to the public in May 2001 and since then most airports and airlines have signed up. See the documents: Airport Voluntary Commitment on Air Passenger Service and Airline Passenger Service Commitment on Air Passenger Service. They are available at http://wwww.ec.europa.eu/transport/themes/passengers/air/legislation_en.htm.

  5. 5.

    This legislation was analysed in the previous chapters regarding provisions concerning the primary rights of passengers, while those concerning secondary rights will be discussed in this one.

  6. 6.

    See Sect. 5.2 of Chap. 5.

  7. 7.

    See Sect. 5.1 of Chap. 5.

  8. 8.

    Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, OJEU L 46, 17.2.2004, p. 1. The provisions under this Regulation will be amply discussed in Sect. 6.4 of the present Chapter.

  9. 9.

    In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, COM(2013) 130 final, the European Parliament introduced a new Paragraph, 1(a), to Article 14. This provided that ‘[a]ir carriers shall set up, at each airport where they operate, contact points at which they shall ensure the presence of contact personnel or a third parties commissioned by the air carrier concerned, to provide passengers with the necessary information regarding their rights, including complaint procedures, to assist them and to take immediate action in the event of cancelled or delayed flights, denied boarding and lost or delayed luggage. During the air carriers operating hours and until the last passengers disembark from the last plane, those contact points shall be available for the purpose of assisting passengers inter alia concerning reimbursement, re-routing, rebooking and of accepting the lodging of their complaints’. The introduction of this new Paragraph was justified by the need to ensure the ‘the presence of contact personnel or a third parties commissioned by the air carrier concerned’ in order to intervene in any emergency situation, by providing timely and precise information to passengers. On this point, see the European Parliament’s Amendment 8 that provides for the introduction of a new Recital 10(a), according to which ‘[a]ir carriers should set up procedures and coordinated action in order to provide adequate information to stranded passengers. Those procedures should clearly indicate who is to be responsible at each airport for arranging the care, assistance, re-routing or reimbursement and should set out the processes and conditions for the provision of those services’. See, as well, Amendment 14 that provides for the introduction of a new Recital 10(b), according to which ‘[i]n order to assist passengers in the case of flight disruptions or delayed, damaged or lost luggage, air carriers should set up contact points at airports where their personnel or third parties commissioned by them should provide passengers with the necessary information regarding their rights, including complaint procedures, and assist them to take immediate action’.

  10. 10.

    See Chap. 4 in its entirety.

  11. 11.

    Previous to the Montreal Convention, these cases were already governed by the Warsaw Convention of 1929. Article 18 of the latter provides that: ‘1. The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air. 2. The carriage by air within the meaning of the preceding Paragraph comprises the period during which the luggage or goods are in charge of the carrier, whether in an aerodrome or on board an aircraft or, in the case of a landing outside an aerodrome, in any place whatsoever. 3. The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or trans-shipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air’. Article 19 of the Warsaw Convention, moreover, provided for the liability of the air carrier for possible damage occasioned by delay in the carriage by air of luggage, as wells as passengers and goods.

  12. 12.

    On the applicability to Regulation (EC) No 261/2004 of the Convention’s provisions on the actions for compensation for damage see Sect. 6.5 of the present Chapter.

  13. 13.

    As previously mentioned, for the definition of SDRs (Special Drawing Rights), see http://www.imf.org/external/np/exr/facts/sdr.htm. An SDR today is worth around US $ 1.50. It must be pointed out that the amounts provided for compensation have been adjusted to the new rate of inflation (as provided for under Article 24(2) of the Montreal Convention itself) by note of the Secretary General of the ICAO of 30 June 2009 (LE 3/38.1-09/47). The Secretary General of ICAO issued a further note of confirmation on 4 November 2009 (LE 3/38.1-09/87). The two notes are available, respectively, at: http://www.regjeringen.no/pages/2273290/Vedlegg%20til%20h%C3%B8yring%20om%20endringar%20i%20luftfartslova.pdf and http://www.folk.uio.no/erikro/WWW/cog/087e.pdf.

    The former amounts were fixed at 4,150 SDR in the case of delay in passenger carriage and at 1,000 SDR in case of delay in baggage transport and in the case of the destruction/loss or damage of the latter.

  14. 14.

    Adjustment of Regulation (EC) No 2027/97, as amended by Regulation (EC) No 889/2002, to the new limitations of liability as set out by the Montreal Convention (increased by 13.1% as from 30 December 2009) is provided for under Article 2, Paragraphs 2 and 3, and Annex 2 of the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage, cit.

  15. 15.

    The importance of bringing together the two provisions was also recognised by the Commission with its own campaign for the strengthening of passenger rights in air transport. In the above- mentioned Proposal for a European Parliament and Council Regulation of 13 March 2013, the Commission opted for an organic reform of the two Regulations (EC) No 261/2004 and (EC) No 2027/97, ensuring their integration and in particular providing for an expansion of the tasks reserved to National Enforcement Organisms (NEBs).

  16. 16.

    In the case of death, advance payment cannot be less than 18.096 SDR in local currency per passenger.

  17. 17.

    See Sects. 5.2 and 5.3 of Chap. 5.

  18. 18.

    Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport, OJEC L 36, 8.2.1991, p. 5.

  19. 19.

    Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, cit., and subsequent amendments.

  20. 20.

    Judgment in Case C-173/07 Emirates Airlines-Direktion für Deutschlandv Diether Schenkel [2008] ECR I-5237.

  21. 21.

    For the meaning of the term ‘itinerary’, see judgment in Case C-83/10 Aurora Sousa Rodríguez and Othersv. Air France S.A. [2011] ECR I-09469. On the matter, see Sect. 6.3.3 of this Chapter.

  22. 22.

    See Paragraphs 40 and 41 of judgment in Case C-173/07 Emirates Airlines, cit.

  23. 23.

    Ibid., Paragraph 47.

  24. 24.

    Ibid., Paragraphs 37 and 38.

  25. 25.

    A subsequent corrigendum to the Italian version of Regulation (EC) No 261/2004 (OJEU L 329, 14.12.2007, p. 64) amended Article 14 in the part defining where the Charter of passenger Rights should be displayed. Where a ‘checking-in’ area had previously been mentioned, now ‘[t]he operating air carrier shall ensure that at the check-in counter’ the information notice is displayed. A discrepancy between Article 6 and Article 14 of Regulation (EC) No 261/2004 should be pointed out: where Article 14 provides that the carrier must always inform passengers of their rights in the case of a delay of more than 2 h, under Article 6 these rights are not provided for where the flight is more than 1500 km if the delay is less than 3 h long.

  26. 26.

    The matter will be exhaustively discussed in the next Section.

  27. 27.

    Article 12 (Courtesy) of the European Code of Good Administrative Behaviour provides, particularly under its first Paragraph, that: ‘The official shall be service-minded, correct, courteous, and accessible in relations with the public. When answering correspondence, telephone calls, and e-mails, the official shall try to be as helpful as possible and shall reply as completely and accurately as possible to questions which are asked’.

  28. 28.

    Article 17 (Reasonable time-limit for taking decisions) of the European Code of Good Administrative Behaviour states that: ‘1. The official shall ensure that a decision on every request or complaint to the institution is taken within a reasonable time limit, without delay, and in any case no later than 2 months from the date of receipt. The same rule shall apply for answering letters from members of the public and for answers to administrative notes that the official has sent to his or her superiors requesting instructions regarding the decisions to be taken. 2. If a request or a complaint to the institution cannot, because of the complexity of the matters which it raises, be decided upon within the above-mentioned time limit, the official shall inform the author as soon as possible. In such a case, a definitive decision should be communicated to the author in the shortest possible time’.

  29. 29.

    Article 19 (Indication of appeal possibilities) of the European Code of Good Administrative Behaviour provides that: ‘1. A decision of the institution which may adversely affect the rights or interests of a private person shall contain an indication of the appeal possibilities available for challenging the decision. It shall in particular indicate the nature of the remedies, the bodies before which they can be exercised, and the time limits for exercising them. 2. Decisions shall in particular refer to the possibility of judicial proceedings and complaints to the Ombudsman under the conditions specified in, respectively, Articles 263 and 228 of the Treaty on the Functioning of the European Union’.

  30. 30.

    In the original language, English, the Commission’s informative poster reported as follows: ‘– Denied boarding: You may be entitled to compensation between EUR 125 and 600 depending on flight distance and the delays incurred when re-routed. – Long delays: You may request a refund of your ticket if the delay exceeds 5 h, but only if you decide not to travel. – Cancellation: Financial compensation is due unless you were informed 14 days before the flight, or you were re-routed close to your original times, or the airline can prove that the cancellation was caused by extraordinary circumstances.—Assistance by airlines: Depending on the circumstances, if you are denied boarding or your flight is cancelled or delayed, you may be entitled to receive assistance (catering, communications, and an overnight stay if necessary). In the event of denied boarding or cancellation, you may be offered the option of continuing your trip or a refund of your ticket’.

  31. 31.

    Commission staff working document accompanying document to the Communication from the Commission to the European Parliament and the Council pursuant to Article 17 of Regulation (EC) No 261/2004 on the operation and the results of this Regulation establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, COM(2007) 168 final, SEC(2007) 426.

  32. 32.

    Communication from the Commission to the European Parliament and the Council on the application of Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, COM(2011) 174 final.

  33. 33.

    European Parliament Resolution of 29 March 2012 on the functioning and application of established rights of people travelling by air, 2011(2150(INI), available at: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2012-99.

  34. 34.

    See Commission Press Release Brussels, 13 March 2013: ‘Commission proposes new measures to strengthen air passenger rights’ (IP/13/219), available at: http://www.europa.eu/rapid/press-release_IP-13-219_en.htm.

  35. 35.

    See the Commission Report included in the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, cit.

  36. 36.

    Proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, cit. The Proposal follows a preliminary and careful assessment by the Commission on the impact of possible intervention strategies. The findings are included in the Commission Staff Working Document Executive Summary of the Impact Assessment accompanying the document Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, SWD(2013) 63 final. The adoption of the Proposal followed a public Internet consultation held between 19 December and 11 March 2012, which collected 410 contributions, available at http://www.ec.europa.eu/transport/passengers/consulations/2012-03-11-apr_en.htm. On 30 May 2012 the Commission organised a stakeholder’s conference, who were called upon to give their opinion on the results of the public consultation. Passenger and consumer representatives underlined the problems entailed by the inadequate implementation of the Regulation by air carriers. On the other hand, the latter and their representatives highlighted the excessive financial burden the Regulation imposed upon them. The tour operator and travel agent associations, despite sharing much of the air carriers’ views, raised objections about the methods of granting passenger accommodation and on the possibility of using single parts of tickets. Finally, airports, firmly opposed having any liability placed on them as an effect of the prospected amendments to the Regulation. National and local authorities, which also intervened, shared the views of the consumer and passenger associations, but showed more sensitivity to the economic problems of the operators in the field.

  37. 37.

    The need for more clarity on the nature and scope of passenger rights had already been brought forward by the Commission in its Citizenship Report of 16 October 2010 called ‘Dismantling the obstacles to EU citizens’ rights’ (COM(2010) 603). Moreover, in the already mentioned Commission White Paper on Transport of 28 March 2011, it pointed out the necessity to ‘Develop a uniform interpretation of EU Law on passenger rights and a harmonised and effective enforcement, to ensure both a level playing field for the industry and a European standard of protection for the citizens’ (Roadmap to a Single European Transport Area—Towards a competitive and resource efficient transport system, cit.).

  38. 38.

    The CJEU case-law will be subject to an in-depth analysis in the parts of this chapter concerning the individual provisions of Regulation (EC) No 261/2004.

  39. 39.

    See above.

  40. 40.

    See Article 1(13) of the Proposal amending Article 14 of Regulation (EC) No 261/2004. The same Article of the Proposal also provides that Paragraph 6 be added to Article 14 of Regulation (EC) No 261/2004. According to the Paragraph, when a ticket is purchased via an intermediary (of the air carrier) established within the Union, this intermediary is to provide the passenger’s contact details to the air carrier only on condition that the passenger has given his or her written authorisation (opt-in). The details thus obtained cannot be used for marketing purposes and must be deleted within 72 h after the completion of the contract of carriage.

  41. 41.

    See Article 1 of the Proposal, amending Article 2(m) of Regulation (EC) No 261/2004 and its Annex I. See, on the matter, Sects. 6.3.2 and 6.3.3 of this chapter.

  42. 42.

    See Article 1(5) of the Proposal amending Article 6(2) of Regulation (EC) No 261/2004. See Sect. 6.3.3 of this chapter.

  43. 43.

    See Article 1(5) of the Proposal, amending Article 6(1) and (5) of Regulation (EC) No 261/2004. This definition means, according to the Proposal of Regulation (EC) No 261/2004, the delay ‘at departure, the time the aircraft remains on the ground between the start of boarding of the passengers and the take-off time of the aircraft or, at arrival, the time between the touch-down of the aircraft and the start of disembarkation of the passengers’. The European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., confirms the need to amend the definition. Amendment 50 provides for the substitution of the term ‘start’ by the term ‘end’ since boarding time depends on the size of the aircraft, and any delay should be calculated in absolute terms and not in relation to the aircraft used. In other words, boarding time should not be taken into account when determining the length of tarmac delay.

  44. 44.

    Among the most significant definitions laid down in the Commission Proposal are: ‘flight’ as meaning ‘an air transport operation between two airports; intermediate stops for technical and operational purposes only shall not be taken into consideration’; ‘Journey’ meaning ‘flight or a continued series of connecting flights transporting the passenger from an airport of departure to his final destination in accordance with the contract of carriage’ (on the concept of ‘flight’ and ‘journey’ see the judgment in Case C-173/07 Emirates Airlines, cit.); ‘connecting flight’ as ‘a flight which, under a single contract of carriage, is intended to enable the passenger to arrive at a transfer point in order to depart on another flight or, where appropriate in the context, means that other flight departing from the transfer point’. On the concept of ‘connecting flight’, see Case C-11/11 Folkerts, not yet published in Reports. The Commission Proposal, finally, defines the concept of ‘time of departure’ and ‘time of arrival’ as ‘the time when the aircraft leaves the departure stand, pushed back or on its own power (off-block time)’ and ‘the time when the aircraft reaches the arrival stand and the parking brakes are engaged (in-block time)’ respectively. To this regard, the Court in Germanwings Case stated that the ‘arrival time’, which is used to determine the length of the delay to which passengers on a flight have been subject, corresponds to the time at which at least one of the doors of the aircraft is opened, the assumption being that, at that moment, the passengers are permitted to leave the aircraft (judgment in Case C-452/13 Germanwings GmbH v Ronny Henning [2014] not yet published in Reports

  45. 45.

    See Article 1(8) of the Proposal, amending Article 8 of Regulation (EC) No 261/2004.

  46. 46.

    See Article 1(6) of the Proposal, adding Article 6(a) to Regulation (EC) No 261/2004.

  47. 47.

    See Article 1(5) of the Proposal, amending Article 6 of Regulation (EC) No 261/2004.

  48. 48.

    See Article 1(3)(b) of the Proposal, adding Paragraph 5 to Article 4 of Regulation (EC) No 261/2004.

  49. 49.

    See Article 1(3)(b) of the Proposal, adding Paragraph 4 to Article of Regulation (EC) No 261/2004.

  50. 50.

    See Article 1(14) of the Proposal, amending Article 16 of Regulation (EC) No 261/2004. On the implementation of Regulation (EC) No 261/2004 and its sanctioning system, see the relevant Section of this Chapter.

  51. 51.

    See Article 1(15) of the Proposal, adding Article 16(b) to Regulation (EC) No 261/2004.

  52. 52.

    See Article 1(15) of the Proposal, adding Article 16(a) to Regulation (EC) No 261/2004.

  53. 53.

    A tangible example of the problem is that of Italian low cost airline WindJet that, in August 2012, because it could not meet its obligations, including supplying fuel, had all of its flight operations suspended, leading to an overwhelming uncertainty on the possibility of operating the flights already booked by around 300,000 passengers. The situation was resolved, not without criticism and inconvenience to passengers with an ad hoc emergency plan laid down by other carriers, so as to enable the rerouting of passengers in possession of WindJet tickets. Later, the airline requested composition with creditors, but the incident has not come to a conclusion yet and the passengers who suffered from disservice are still awaiting compensation. The insolvency cases of air carriers Spanair and Malév Airlines (Hungary) are expressly mentioned in the explanatory statement of the Committee on Transport and Tourism of the European Parliament in its report of 22 January 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, COM(130) final.

  54. 54.

    In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 cit., the European Parliament acknowledges the need to reinforce the financial protection of passengers in the case of airline failure. Amendment 10, which should introduce a new Recital to Regulation (EC) No 261/2004, namely 9(c), provides that ‘[t]he financial protection of passengers in the event of airline failure is a key component of an effective passenger rights regime. In order to strengthen air passengers’ protection in the event of cancellations of flights due to the insolvency of an air carrier or the suspension of an air carrier’s operations due to the revocation of its operating licence, air carriers should be obliged to provide sufficient evidence of security for the reimbursement of passengers or their repatriation’. The subsequent Amendment 69, proposing the addition of Paragraph 5(c) to Article 5 provides that: ‘In the event of cancellation of a flight owing to insolvency, bankruptcy, or the suspension or cessation of the activities of an air carrier, passengers who are stranded shall be entitled to a reimbursement, the return flight to the point of departure or rerouting, and to care, as provided for in Articles 8 and 9 of this Regulation. Equally, air passengers who have not yet started their journey shall be entitled to reimbursement. Air carriers shall prove that they have taken all necessary measures, such as taking out an insurance policy or creating guarantee funds, to provide for the care, reimbursement or rerouting of stranded passengers where applicable. These rights shall apply to all passengers concerned irrespective of their place of residence, point of departure or where they bought their ticket’.

  55. 55.

    See Sects. 6.3.1–6.3.3 of this Chapter.

  56. 56.

    See Article 1(12) of the Proposal, amending Article 13 of Regulation (EC) No 261/2004. The Commission took account of the CJEU judgments. These will be discussed later in a contextual analysis of the individual provisions proposed by the Commission.

  57. 57.

    See Article 2(1) of the Proposal amending Article 3(2) of Regulation (EC) No 2027/97. In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., Amendment 144 concerning Article 3(2) of Regulation (EC) No 2027/97, provides that ‘[a]t all airports within the Union the Community air carrier and the ground handlers acting on its behalf shall establish a service that provides passengers with complaint forms which allow them to immediately submit a complaint about damaged or delayed baggage upon arrival. Likewise, the Community air carrier shall hand out such a compliant form at passenger’s request at their check-in desks or at their airport service desks, or both, and shall make the compliant form available on their websites’. See, as well, Amendment 34, providing that ‘[g]iven the short deadlines for the submission of complaints for lost, damaged or delayed baggage, a special baggage claim service should be set up at all airports where passengers have the possibility to submit a complaint upon arrival. For this purpose, air carriers should provide a complaint form to passengers. This could also take the form of the common Property Irregularity Report (PIR). The Commission should lay down the form of the standardised claim form through implementing acts. This service should facilitate complaint procedures submitted by passengers’.

  58. 58.

    See Article 2(4) of the Proposal that provides for the addition of Article 6(d) to Regulation (EC) No 2027/97. Amendment 150 of the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., specifies that ‘[a]ir carriers shall clearly indicate [baggage allowances], at an early stage of the booking process, in all distribution channels that are used, including computerised reservation systems’ and that ‘Details of additional charges applicable for the carriage of baggage air carriers shall be communicated at an early stage of the booking process and on request at the airport in a clear, transparent and unambiguous manner. Core travel services and additional charges must be clearly identifiable and capable of being purchased separately from each other’. Such information should enable passengers to compare rates offered by the various air carriers operating the service clearly and easily. Amendment 151 proposes adding Paragraph 1(a) to the new Article 6(d) allowing passengers to ‘carry on board in the cabin, free of charge, essential personal items or belongings such as coats and handbags, including at least one standardised bag of airport shopping, in addition to the prescribed maximum cabin baggage allowance’. The new provision should discourage airlines from the policy pursued by some of them of only allowing one piece of cabin luggage with the provision of extra costs for each additional item (also including items purchased in the airport). This topic remaining an outstanding issue in the on-going Council debate on the Commission Proposal. Clear provision on the so-called ‘one bag rule’ should be established. Some delegations believe that requiring full transparency of the airline towards the passenger should be sufficient, thereby avoiding setting limits or restrictions to the commercial freedom of the air carriers. However, other delegations insist on clarifying the limitations on carry-on baggage with the purpose of creating a set of common rules regarding the boarding of hand luggage and other items. The Greek Presidency compromise allows for luggage limitations to be expressed in dimensions or weight, but not in the number of items. See Report from the General Secretariat of the Council to the Permanent Representatives Committee (Part 1) and to the Council, Preparation of the Council meeting (Transport, Telecommunications and Energy) on 5 June 2014, 26 may 2014, 9820/14 ADD 1 REV 1.

  59. 59.

    See Article 2, Paragraph 4 of the Proposal, adding Article 6(e) to Regulation (EC) No 2027/97.

  60. 60.

    On the rights of passengers with reduced mobility, see Sect. 4.3 of Chap. 4.

  61. 61.

    Opinion of the European Economic and Social Committee on the Common rules on compensation and assistance to air passengers (rolling programme) of 11 July 2013, EESC/2013/2576, cit.

  62. 62.

    European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit. The main variances between the Commission Proposal and the European Parliament legislative Resolution will be subject to an in-depth analysis in the Sections of this Chapter expressively dedicated to the discussion of the individual provision of Regulation (EC) No 261/2004 and Regulation (EC) No 2027/97. See, as well, for further information Commission Press Release, Brussels, 5 February 2014, (IP/14/119 05/02/2014), viewable at http://www.europa.eu/rapid/press-release_IP-14-119_en.htm and European Parliament Press Release at http://www.europarl.europa.eu/news/en/news-room/content/20140203IPR34618/html/Parliament-pushes-for-enforceable-air-passenger-rights. In the meanwhile the Council discussion on the Commission Proposal is still ongoing. On 10 October 2010 the Irish Presidency held an orientation debate at the Transport Council..

  63. 63.

    Report from the General Secretariat of the Council to the Permanent Representatives Committee (Part 1) and to the Council, Preparation of the Council meeting (Transport, Telecommunications and Energy) on 5 June 2014, 26 May 2014, 9820/14 ADD 1 REV 1., cit.

  64. 64.

    Judgment in Case C-321/11 Rodríguez Cachafeiro and Martínez-Reboredo Varela-Villamor [2012] not yet published in Reports. The dispute arose from the refusal of the air carrier to board Mr Rodríguez Cachafeiro and Mrs Martínez-Reboredo Varela-Villamor on the Madrid – Santo Domingo flight (the second flight on a A Coruna–Santo Domingo journey). The grounds for the refusal were that the passengers’ second boarding cards had been cancelled. According to Iberia, the delay of their first flight (1 h and 25 min) would have resulted in their missing the second flight. Despite the delay, the applicants managed however to present themselves at the departure gate in the final boarding call to passengers from the Madrid–Santo Domingo flight, but they were denied boarding. The passengers, considering Iberia’s behaviour unjustified, brought an action before the Juzgado de lo Mercantil No 2, A Coruña (Commercial Court No 2, A Coruña), seeking a decision ordering Iberia to pay them compensation for ‘denied boarding’, pursuant to Articles 4(3) and 7(1)(c) of Regulation (EC) No 261/2004.

  65. 65.

    Judgment in Case C-22/11 Finnair [2012] not yet published in Reports. Again here the facts concern a passenger denied boarding, this time by air carrier Finnair, because of a breakdown of the Finnish airline’s flight schedules following a strike by staff at Barcelona’s El Prat airport on 28 July 2006. The extraordinary circumstance led to the cancellation of Finnair’s scheduled Barcelona– Helsinki flight, of 11.40 a.m. The airline then proceeded to reschedule later flights so that the passengers of the first cancelled flight did not suffer excessively long delays. The former were thus embarked on the 11.40 a.m. flight the following day (29 July 2006). Because of this rescheduling, some of the passengers booked on the 11.40 a.m. flight of 29 July 2006 had to wait to be embarked on the two later flights at 11.40 a.m. and 9.40 p.m. on 30 July 2006. This additional rescheduling obliged other passengers, including Mr. Lassoy, who had a ticket for the 11.40 a.m. flight on 30 July 2006, to reach Helsinki with the later 9.40 p.m. flight on the same day. The Finnish airline paid no compensation to the latter. Mr. Lassoy consequently decided to bring an action before the national court.

  66. 66.

    See Paragraph 26 of judgment in Case C-22/11, Finnair, cit. and Paragraph 24 of judgment in Case C-321/11 Rodríguez Cachafeiro and Martínez-Reboredo Varela-Villamor, cit.

  67. 67.

    Proposal for a Regulation of the European Parliament and of the Council establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights COM(2001) 784 final, OJEC C 103E, 30.4.2002, p. 225.

  68. 68.

    See Paragraph 20 of judgment in Case C-22/11 Finnair, cit. and Paragraph 22 of judgement in Case C-321/11 Rodríguez Cachafeiro and Martínez-Reboredo Varela-Villamor, cit.

  69. 69.

    See Paragraphs 38, 40 of judgment in Case C-22/11, Finnair, cit.

  70. 70.

    Ibid., Paragraph 37.

  71. 71.

    Ibid., Paragraph 39.

  72. 72.

    The term ‘working day’ is included in Amendment 85 of the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit. Amendment 62 refers to Article 1(8) of the Proposal replacing the whole of Article 8(1)(a) of Regulation (EC) No 261/2004.

  73. 73.

    See Article 1(8) of the Proposal replacing Paragraph 5 of Article 8 of Regulation (EC) No 261/2004 and adding Paragraph 6 to it. The Paragraph provides for the application of Regulation (EC) No 261/2004 to alternative modes of transport in the case of total or partial re-routing of passengers by alternative modes of transport. In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., Amendment 89 specifies that the application must be ‘in accordance with the re-routing agreements in place between the operating airline and the other modes of transport’. Amendment 90 provides for the addition of a new Paragraph, namely Paragraph 6(a), to Article 8, which provides that ‘the passenger may himself organise his own re-routing and claim reimbursement of the corresponding costs if the operating air carrier fails to offer the choice of re-routing’. The Amendment aims at granting passengers a right of choice that they currently are not entitled to.

  74. 74.

    See Article 1(8) of the Proposal amending Paragraph 3 of Article 8 of Regulation (EC) No 261/2004. The new Paragraph 3 provides that: ‘If an operating air carrier offers a passenger a flight to or from an airport alternative to that for which the reservation was made, the operating air carrier shall bear the cost of transferring the passenger from that alternative airport to that for which the reservation was made or, with regard to the destination airport, to another neighbouring destination agreed with the passenger’.

  75. 75.

    Article 1(10) of the Proposal amends Paragraph 2 of Article 10 of Regulation (EC) No 261/2004 providing for the substitution of the terms ‘price of the ticket’ with ‘flight price’. The new terms ‘flight price’ and ‘ticket price’ are introduced by Article 1 Paragraph 1 of the Proposal amending Article 2 of Regulation (EC) No 261/2004. The former term means ‘the value obtained by multiplying the ticket price by the ratio between the distance of the flight and the total distance of the journey(s) covered by the ticket’. In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., Amendment 49 modifies the concept adding ‘where a ticket price is not known, the value of any refund shall be the supplement paid for a premium seat on the flight’. The latter, however, means ‘[t]he full price paid for a ticket and including the air fare, and all applicable taxes, charges, surcharges and fees paid for all optional and non-optional services included in the ticket’. Amendment 48 in this case also modifies the concept adding: ‘such as all costs for the check-in, the provision of the tickets and the issuing of the boarding cards and for the carrying a minimum amount of luggage, including an item of hand luggage, an item of checked in luggage and essential items, as well as all costs related to payment, such as charges for paying by credit card; the ticket price published in advance always reflects the final ticket price to be paid’.

  76. 76.

    Judgment in Case C-173/07 Emirates Airlines, cit.

  77. 77.

    Article 1(7) of the Proposal, amending Article 7 of Regulation (EC) No 261/2004, proposes that, at Paragraph 1 of Article 13, the term ‘journey’ replace the term ‘flight’. This amendment is fully in line with the provisions of CJEU case-law in the already mentioned Case C-173/07  Emirates Airlines, where the Court drew a clear distinction between the term ‘flight’ and the term ‘journey’ (see above, footnote 44). It is also consistent with the Court’s line of decisions on long delays, according to which the inconvenience suffered by passengers is realised once their final destination is reached (see below the judgments in Sturgeon and Others (Paragraph 61), Nelson and Others (Paragraph 40) and Folkerts (Paragraph 33)). In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., the European Parliament, with Amendment 81, which seeks to balance the protection of passengers’ rights against the financial needs of air carriers, modified the thresholds in which passengers are to receive compensation. The new thresholds are the following: EUR 300 for all journeys of 2500 km or less; EUR 400 for all journeys between 2500 and 6000 km; However, the EUR 600 threshold is kept for all journeys of more than 6000 km. It must be noted that Amendment 81 provides that ‘[i]n determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger’s arrival after the scheduled time’. Regulation (EC) No 261/2004, Article 7(4) provides that distances are to be measured by the great circle route method. In navigation, ‘great circle route’ means: ‘the shortest course between two points on the surface of a sphere’. See http://www.britannica.com/EBchecked/topic/243065/great-circle-route.

  78. 78.

    See Article 1(7) of the Proposal, adding Paragraph 5 to Article 7 of Regulation (EC) No 261/2004.

  79. 79.

    The possibility of ‘further compensation’ will be discussed again in the following Section.

  80. 80.

    In addition, in order to strengthen passengers’ rights in the face of possible cases of denied boarding and in accordance with the right of free movement of persons in EU, Amendment 169 of European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., introduced a new Paragraph 3(a) of Article 4 of Regulation (EC) No 261/2004, providing that ‘[a]ir carriers or their agents may not deny boarding on domestic flights on grounds of invalid documentation if the passengers proves his identity by means of the documents required under the national law of the State where boarding takes place’.

  81. 81.

    For a few statistical data, see Commission Staff Working paper, accompanying document to the Communication from the Commission to the European Parliament and the Council on the operation and the results of Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay flights, SEC(2011) 428 final. It is available at: http://www.ec.europa.eu/transport/themes/passengers/doc/sec_2011_428_staff-working-paper.pdf.

  82. 82.

    It should be borne in mind that delays are also provided for under the Montreal Convention, in particular by Article 19, that provides that carriers are liable for damage occasioned by delay unless they can prove they ‘took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures’. Moreover, Article 29 of the Convention provides that ‘[i]n the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable’.

  83. 83.

    Regulation (EC) No 261/2004, indeed, provides that, according to the situation, there are precise obligations for air carriers: (a) in the case of denied boarding, compensation (Article 7), re-routing or refund of ticket (Article 8) and assistance on the ground (Article 9); (b) in the case of flight cancellation, assistance in the shape of re-routing or ticket refund (Article 8) and assistance in the shape of meals, refreshments, and so forth (Article 9) without, however, the right to compensation where passengers have had timely notice or the carrier may prove that the cancellation was dependant on extraordinary circumstances (consequently, passengers are entitled to compensation when no timely notice was given or carriers failed to produce evidence for these circumstances); (c) in the case of delay, ground assistance and, if the delay is at least 5 h, ticket refund pursuant to Article 8 or rerouting (compensation is thus excluded). In conclusion: compensation, which is one of the most interesting aspects of Regulation (EC) No 261/2004, is provided for only denied boarding and, in the above-mentioned circumstances, in the case of flight cancellation.

  84. 84.

    Judgment in Joined Cases C-402/07 Sturgeon and Others and C-432/07 Böck and Lepuschitz [2009] ECR I-10923. In the first case the Sturgeon family had suffered a delay of around 25 h to their scheduled arrival time on their Toronto–Frankfurt am Main flight of 9 July 2005. The flight did not vary, although the passengers were given different seat numbers, and reached Frankfurt am Main on 11 July 2005 at 7 a.m. severely delayed. The Sturgeons brought an action against Condor (the flight operator) claiming compensation since, in their view, the flight was not delayed but cancelled. In the second case, the flight booked by Mr. Bock and Mrs. Lepuschitz from Mexico City to Paris, scheduled on 7 March 2005 at 9.30 p.m. and operated by Air France, was cancelled for technical reasons. The two passengers were re-routed on the Continental Airlines flight scheduled on the following day at 12.20 p.m. Consequently, the original boarding cards were cancelled and passengers were given new tickets issued by the second carrier. The two passengers arrived in Paris with a delay of about 22 h. The other passengers of the original flight, not flying with Continental Airlines, reached Paris on 8 March 2005 at 7.35 p.m. on a flight operated by Air France. Mr. Bock and Mrs. Lepuschitz later decided to bring an action against the Air France for the compensation to which they were entitled in respect of a flight cancellation.

  85. 85.

    See the questions referred for a preliminary ruling on 18 September 2007 to the Court of Justice by the Handelsgericht Wien (Austria) in Case C-432/07 Böck and Lepuschitz, cit.

  86. 86.

    See Paragraphs 32, 33 and 39 of the Joined Cases C-402/07 Sturgeon and Others and C-432/07 Böck and Lepuschitz, cit.

  87. 87.

    Ibid., Paragraph 34.

  88. 88.

    Ibid., Paragraphs 61 and 69.

  89. 89.

    On the concept of ‘extraordinary circumstances’, which is also relevant in the case of flight cancellation, see the judgment in Joined Cases C-402/07 Sturgeon and Others and C-432/07 Bölk and Lepuschitz, cit., Paragraph 70.

  90. 90.

    Judgment in Joined Cases C-581/10 Nelson and Others and C-629/10 TUI Travel and Others [2012] not yet published in Reports.

  91. 91.

    See Paragraphs 77 and 79 of judgment in Joined Cases C-581/10 Nelson and Others and C-629/10 TUI travel and Others, cit.

  92. 92.

    Ibid., Paragraphs from 50 to 56.

  93. 93.

    Ibid., Paragraphs 89 and 92.

  94. 94.

    Judgment in Case C-11/11 Folkerts, cit. Mrs. Folkerts held a reservation to fly from Bremen to Asunción, via Paris and São Paulo. Air France operated all her flights. The departure of her first flight from Bremen to Paris was delayed by approximately 2.5 h beyond the scheduled departure time. Mrs. Folkerts, who already had her boarding cards for the entire journey on departure from Bremen, did not reach Paris until after Air France’s aircraft scheduled for the connecting flight to São Paulo had already departed. Mrs. Folkerts was re-booked by Air France on to a later flight to São Paulo. Because of her late arrival in São Paulo, Mrs. Folkerts missed the connecting flight to Asunción as originally scheduled. She therefore did not arrive in Asunción until 17 May 2006 at 10.30 a.m., that is 11 h after the arrival time originally scheduled. She later brought an action against Air France for compensation. The proceedings reached the national court of last instance. That court, the German Federal Court (Bundesgerichtshof), suspended its proceedings and made an order for reference under Article 267 TFEU to the Court of Justice seeking its interpretation. The CJEU case-law in the cases Sturgeon and Others, Nelson and Others and Folkerts, was confirmed in the Order of the Court (Ninth Chamber) of 18 April 2013, Case C-413/11, Germanwings, not yet published in Reports.

  95. 95.

    See Paragraphs 33 and 34 in Case C-11/11 Folkerts, cit.

  96. 96.

    Ibid., Paragraph 47.

  97. 97.

    The Proposal suggests that the term ‘flight’ should be substituted with ‘journey’ in Article 7(1) of Regulation (EC) No 261/2004. See above, footnote 73.

  98. 98.

    See Article 1(5) of the Proposal replacing Article 6(2) of Regulation (EC) No 261/2004. In the on-going Council debate on the Commission Proposal, the Greek Presidency Proposal on this topic is to align the thresholds for cancellation and long delay with the goal of ensuring equal treatment of passengers suffering a similar inconvenience. However, the proposed 5-9-12 thresholds giving rise to compensation in cases of cancellation and delay do not meet the satisfaction of a number of delegations which have diverging positions on this key issue. Report from the General Secretariat of the Council to the Permanent Representatives Committee (Part 1) and to the Council, Preparation of the Council meeting (Transport, Telecommunications and Energy) on 5 June 2014, 26 May 2014, 9820/14 ADD 1 REV 1, cit. See also footnotes 77 and 119.

  99. 99.

    See the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit.

  100. 100.

    In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit. Amendment 80 actually specifies that Article 6 of Regulation (EC) No 261/2004 applies ‘to third-country air carriers operating a connecting flight from an airport within the Union to another airport within the Union, or from an airport within the Union to an airport outside the Union’. In the on-going Council debate on the Commission Proposal, serious concerns were voiced on the proposed rules on connecting flights. The Greek Presidency compromise provides that in case of the connecting time being relatively short (less than 90 minutes) and the passenger who purchased the connecting flight being aware that a short delay of the feeder flight could lead to missing the connection, the airline is allowed to seek exemption from the payment of compensation. This compromise cannot be accepted by a number of delegations which continue to propose the deletion of the compensation for connecting flights. They believe that such compensation should only be paid on the individual leg of the flight, and the corresponding delay suffered. Report from the General Secretariat of the Council to the Permanent Representatives Committee (Part 1) and to the Council, Preparation of the Council meeting (Transport, Telecommunications and Energy) on 5 June 2014, 26 May 2014, 9820/14 ADD 1 REV 1, cit.

  101. 101.

    See, for some statistical data, MEMO/13/203 of the Commission, of 13 March 2013, Air Passenger Rights Revision—FAQ, p. 2, available at http://www.europa.eu/rapid/press-release_MEMO-13-203_en.htm.

  102. 102.

    Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, cit.

  103. 103.

    See Article 1(5) of the Proposal replacing, for the relevant matter, Article 6(1)(i) of Regulation (EC) No 261/2004. On this, the EESC, in Paragraph 5.7 of its Opinion of 11 July 2013 welcomed the simplification, stating that ‘[t]his is greatly in the interest of passengers and provides them with fair and comfortable conditions while waiting’.

  104. 104.

    See Article 1(9) of the Proposal in the part where it adds Paragraph 4 to Article 9 of Regulation (EC) No 261/2004. In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., the European Parliament deemed it suitable to raise the amount to EUR 125 and the maximum limit of overnights on the carriers to 5. Indeed, Amendment 96 provides that ‘[the air carrier] may limit the total duration of accommodation provided in accordance with Paragraph 1(b) to a maximum 5 nights’—thus the 3 night limit in the Commission’s Proposal is increased. Instead, if ‘the passenger decides to arranges his own accommodation, it may further limit the costs of the accommodation to EUR 125 per night per passenger’. In the on-going Council debate on the Commission Proposal all delegations agreed to remove the monetary limit of accommodation in case of major travel disruptions. Report from the General Secretariat of the Council to the Permanent Representatives Committee (Part 1) and to the Council, Preparation of the Council meeting (Transport, Telecommunications and Energy) on 5 June 2014, 26 May 2014, 9820/14 ADD 1 REV 1, cit.

  105. 105.

    See Article 1(4)(c) of the Proposal, adding Paragraph 5 to Article 5 of Regulation (EC) No 261/2004. Pursuant to this provision, if the airport should not reach the specified number of passengers, the airport management authorities will provide for the adoption of all reasonable measures for the coordination of actions for informing and assisting stranded passengers.

  106. 106.

    In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., Amendment 66 proposes reducing the annual traffic of passengers from at least 3 million to ‘one and a half million passengers for at least three consecutive years’. Amendment 66 proposes, as well, that ‘[t]he contingency plan shall be set up by the airport management body in cooperation with the airport users’. Moreover Amendments 67 and 68 introduce two new Paragraphs after Article 5(5) of Regulation (EC) No 261/2004 (the latter added by the Commission Proposal). Paragraph 5a provides that, ‘[w]hile air carriers may not reduce their obligations as defined under this Regulation, the contingency plan provided for by Paragraph 5 shall be set up to define coordinated action where this is necessary in order to ensure the provision of adequate information and assistance to the stranded passengers and in particular to disabled persons and persons with reduced mobility, notably with regard to: (1) the provision of information to passengers stranded at or heading towards the airport to begin their air journey; (2) the provision of on-the-spot accommodation where large numbers of stranded passengers exceed the availability of hotel accommodation; (3) the provision of information and assistance to passengers affected by the limitations laid down in Article 9(4) and (5); (4) re-routing of stranded passengers by alternative carriers and transport modes, at limited or no cost for passengers, where the operating carrier has ceased operations. Paragraph 5(b) provides that ‘[a]ir carriers shall develop and put in place detailed procedures which allow them to comply in an effective and consistent way with this Regulation, especially in cases of delays, cancellations, denied boarding, mass disruptions and insolvency. Those procedures shall clearly indicate the contact person of the airline at each airport who is to be responsible for providing reliable information concerning care, assistance, re-routing or reimbursement and shall define the processes and conditions for the provision of those services in such a way that this representative is able to fulfil this obligation without delay. The air carrier shall communicate those procedures and any changes thereto to the National Enforcement Body designated pursuant to Article 16’. The Amendments have the purpose of detailing more accurately what services contingency plans should ensure relating to information and assistance. See, moreover, Sect. 2.5 of Chap. 2.

  107. 107.

    See footnote No 115.

  108. 108.

    See Article 1, Paragraphs 9 and 11 of the Proposal, adding Paragraph 5 to Article 9 and Paragraph 3 to Article 11 of Regulation (EC) No 261/2004, respectively.

  109. 109.

    In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., Amendment 76 proposes to reduce from 5 to 2 h the maximum delay allowed for aircraft to have to return to the departure gate (‘Where a tarmac delay reaches a maximum of 2 h’).

  110. 110.

    See Article 1(5) of the Proposal, adding Paragraph 5 to Article 6 of Regulation (EC) No 261/2004.

  111. 111.

    Amendment 76 also proposes: ‘After a total delay of more than 3 h from the initial departing time’.

  112. 112.

    See statistical data published in the Commission staff working paper accompanying document to the Communication from the Commission to the European Parliament and the Council on the operation and the results of Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay flights, cit.

  113. 113.

    Judgment in Case C-83/10 Aurora Sousa Rodríguez and Others, cit. In the case, the applicants in the main proceedings had booked an Air France flight from Paris (France) to Vigo (Spain) scheduled for 25 September 2008. A few minutes after the flight took off as planned, the pilot decided to return to the departure point, Paris Charles de Gaulle airport, because of a technical failure of the aeroplane. After the return the applicants were re-routed by other flights the following day. With the exception of one of them, none of the applicants received any assistance from that airline. The applicants in the main proceedings, brought an action against Air France for damages before National court Pontevedra) seeking the compensation provided for in case of flight cancellation and an additional sum in respect of the non-material damage suffered.

  114. 114.

    See Case C-173/07 Emirates Airlines, cit., Paragraph 40; Joined Cases C-402/07 Sturgeon and Others, and C-432/07 Böck and Lepuschitz, cit., Paragraph 30; and Case C-83/10, Sousa Rodríguez and Others, cit., Paragraph 27. Also see above, Paragraph 3.

  115. 115.

    See Case C-83/10 Sousa Rodríguez and Others, Paragraph 28.

  116. 116.

    See Article 1(1)(d) of the Proposal, amending Article 2(l) of Regulation (EC) No 261/2004.

  117. 117.

    On the Court of Justice case-law on ‘extraordinary circumstances’ and the relevant burden of proof, see below.

  118. 118.

    Article 1(4) of the Proposal amending Article 5 of Regulation (EC) No 261/2004 has clarified these possibilities. Article 5(1)(a) of the Regulation is amended thus: ‘and offered by the operating air carrier the choice between reimbursement, continuation of their travel by rerouting or travel at a later date, in accordance with Article 8’. In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., Amendment 63 proposes the addition of the terms ‘[…] later on the same day or […]’. Article 5(1)(b) is thus amended to read: ‘be offered by the operating air carrier in the event of re-routing when the reasonably expected time of departure of the flight is at least 2 h after the planned departure of the cancelled flight, the care specified in Article 9’.

  119. 119.

    The Proposal provides that the term ‘flight’ must be replaced by the term ‘journey’ in Article 7(1) of Regulation (EC) No 261/2004. See above, footnote 73.

  120. 120.

    Initially, the Proposal referred to the concept of ‘force majeure’, later replaced by that of ‘extraordinary circumstances’ because it is more in accordance with the requirements of legal certainty. The concept of ‘force majeure’ is, instead, expressly used in Article 4(6) second clause of Directive 90/314/EEC on package travel, package holidays and package tours.

  121. 121.

    See the Opinion of Advocate General Sharpston in Case C-396/06 Eivind F. Kramme v SAS Scandinavian Airlines Danmark A/S. SAS airlines had refunded the expenditure the passenger had incurred for meals and overnight, but had refused to pay compensation. The carrier had founded its decisions on the grounds that a flight cancellation due to technical problems to the aircraft that should have operated the flight constitutes an exceptional circumstance under Article 5(3) of Regulation (EC) No 261/2004.

  122. 122.

    Advocate General Sharpston, in her Opinion, points out, with regard to the unavoidability of the cancellation, that it is clear from the syntax of Article 5(3), notably the position of the relative pronoun ‘which’, that the words ‘could not have been avoided’ are to be read in relation to ‘extraordinary circumstances’.

  123. 123.

    Moreover, when Regulation (EC) No 261/2004 was being drafted, the Commission had observed, in its Communication to European Parliament of 25 March 2003 (SEC(2003) 361), that the conditions to which compensation is subject ‘link compensation more closely to the trouble and inconvenience caused by cancellations’ and that the link provided under Regulation (EC) No 261/2004 between compensation and damage is consistent with the necessity to ensure fair compensation under Article 29 of the Montreal Convention.

  124. 124.

    Order of the President of the Fourth Chamber of the Court of 11 April 2008 (reference for a preliminary ruling from the Østre Landsret—Denmark) Case C-396/06 Kramme, removed from the Register.

  125. 125.

    Judgment in Case C-549/07 Wallentin-Hermann [2012] ECR I-11061. The main proceeding concerned the refusal on the part of Alitalia Airlines to pay compensation to Mrs. Wallentin-Hermann following the cancellation of her flight from Vienna to Brindisi (Italy) via Rome. Departure was scheduled form Vienna airport on 28 June 2005, at 6.45 a.m. Five minutes after check-in, the lady and her family were informed that the flight had been cancelled resulting from a complex engine turbine failure. The three passengers were then boarded on an Austrian Airlines flight for Rome. Having arrived at Rome airport 20 min after the departure of their connecting flight for Brindisi, they missed it and reached their final destination at 2.15 p.m., about 4 h after their scheduled time of arrival. The Italian air carrier refused to pay the EUR 250 compensation and refund EUR 10 for phone charges. Mrs Wallentin-Hermann thus decided to bring an action against Alitalia.

  126. 126.

    See the questions referred for a preliminary ruling by Handelsgericht Wien (Austria) 11 December 2007 in Case C-549/07 Wallentin-Hermann, cit.

  127. 127.

    See Case C-549/07 Wallentin-Hermann, cit., Paragraphs 16, 18 and 20.

  128. 128.

    Ibid., Paragraph 23.

  129. 129.

    Ibid., Paragraph 24.

  130. 130.

    Ibid., Paragraphs 27 and 41.

  131. 131.

    Ibid., Paragraphs 39 and 40.

  132. 132.

    Ibid., Paragraphs 21 and 22.

  133. 133.

    Ibid., Paragraph 23.

  134. 134.

    Ibid., Paragraph 24.

  135. 135.

    Ibid., Paragraphs 29–33. Finally, on the same point, the Court refers to its case-law, introduced in the judgment, which will be the subject of further analysis in Sect. 6.6 of this Chapter, confirming that Article 5(3) of Regulation (EC) No 261/2004 and Articles 19 et seq. of the Convention refer to different contexts and provide for safeguards that cannot overlap. The former operates on a uniform and immediate basis, the latter on an individual basis. See, Case C-344/04 IATA and ELFAA [2006] ECR I-403.

  136. 136.

    Judgment in Case C-294/10 Andrejs Eglītis and Edvards Ratnieks v Latvijas Republikas Ekonomikas ministrija ECR [2011] I-03983.

  137. 137.

    Ibid., Paragraphs 26 and 27 in Case C-294/10 Eglitis, cit.

  138. 138.

    Ibid., Paragraphs 28 and 37

  139. 139.

    Judgment in Case C-12/11 McDonagh [2013], not yet published in Reports.

  140. 140.

    The enormous issues concerning the management of air travel from the point of view of its safety, generated by this extraordinary event that had a whole economic sector on edge, as well as all EU institutions and national governments, have already been analysed in Chap. 2.

  141. 141.

    The main proceedings were on a dispute between Mrs McDonagh and Ryanair airlines on the cancellation on 17 April 2010 of the Faro-Dublin flight caused by the eruption of the Icelandic volcano Eyjafjallajökull. Because of the persistence of the cloud of volcanic ash in the skies of Europe, flights between continental Europe and Ireland were cancelled, since airspace was closed to traffic for 5 days. Consequently Mrs. McDonagh returned to Dublin only on the following 24 April. Later she brought an action before the national court complaining that in the period between the scheduled flight and the one actually operated Ryanair did not provide her with any care, obliging her to incur costs of EUR 1130 on meals, refreshments, accommodation and transport.

  142. 142.

    See Paragraphs from 29 to 34 of judgment in Case C-12/11 McDonagh, cit. In particular, at Paragraph 33, the Court states that ‘[s]uch an interpretation would in fact mean that air carriers would be required to provide care pursuant to Article 9 of Regulation No 261/2004 to air passengers who find themselves, due to cancellation of a flight, in a situation causing limited inconvenience, whereas passengers, such as the plaintiff in the main proceedings, who find themselves in a particularly vulnerable state in that they are forced to remain at an airport for several days would be denied that care’.

  143. 143.

    Ibid., Paragraphs 41 and 42.

  144. 144.

    Ibid., Paragraphs from 46 to 51.

  145. 145.

    See Paragraph 81 of Joined Cases C-581/10 Nelson and Others and C-629/10 TUI Travel and Others, cit.

  146. 146.

    See Paragraph 49 of Case C-12/11 McDonagh, cit. Here the Court stated that air carriers should, as experienced operators, foresee costs linked to the fulfilment, where relevant, of their obligation to provide care and, furthermore, may pass on the costs incurred as a result of that obligation to airline ticket prices’.

  147. 147.

    See the same, Paragraph 55, where the Court states that it ‘has already held in IATA and ELFAA, Paragraphs 93–99, that Articles 5–7 of Regulation (EC) No 261/2004 do not infringe the principle of equal treatment’. At Paragraph 56 the Court, referring to Paragraph 96 of IATA and ELFA, cit., stated that ‘[t]he situation of undertakings operating in the different transport sectors is not comparable since the different modes of transport, having regard to the manner in which they operate, the conditions governing their accessibility and the distribution of their networks, are not interchangeable as regards the conditions of their use’ (for an analysis of the points in the IATA and ELFAA, see Sect. 6.6 of the present Chapter). On the non-interchangeability of the different modes of transport the Court confirmed its case-law in its judgment in Case C-509/11 ÖBB-Personenverkehr [2013] not yet published in Reports, on rail transport. The Court, stating that the delays attributable to force majeure do not exonerate railway undertakings from the obligation to pay compensation for the price of a ticket provided for by Regulation (EC) No 1371/2007, pointed out that a railway undertaking is also not entitled to include in its general terms and conditions of carriage a clause to this purpose. Likewise, a railway undertaking cannot resort to applying by analogy rules relating to force majeure included in provisions on passengers using other modes of transport. According to the Court, since the different modes of transport are not interchangeable as regards the conditions of their use, the situation of undertakings operating in different transport sectors is not comparable. Particularly as regards this last issue, see Paragraph 40 of the judgment: ‘In that regard, it should be noted that the situation of undertakings operating in different transport sectors is not comparable since the different modes of transport—having regard to the manner in which they operate, the conditions governing their accessibility and the distribution of their networks—are not interchangeable as regards the conditions of their use. In those circumstances, the EU legislature was entitled to establish rules for providing a level of customer protection that varied according to the transport sector concerned (Case C-12/11 McDonagh, Paragraphs 56 and 57)’. On the difference between the various modes of transport in CJEU case-law see Sect. 6.6 of the present Chapter.

  148. 148.

    The Commission took its cue from the definition of ‘extraordinary circumstances’ described by the Court in Case C-549/07, Wallentin-Hermann, cit.

  149. 149.

    Annex I to the Proposal, which will be Annex I to the new Regulation, mentions, as exceptional circumstances: ‘i. natural disasters rendering impossible the safe operation of the flight; ii. technical problems which are not inherent in the normal operation of the aircraft, such as the identification of a defect during the flight operation concerned and which prevents the normal continuation of the operation; or a hidden manufacturing defect revealed by the manufacturer or a competent authority and which impinges on flight safety; iii. security risks, acts of sabotage or terrorism rendering impossible the safe operation of the flight; iv. life-threatening health risks or medical emergencies necessitating the interruption or deviation of the flight concerned; v. air traffic management restrictions or closure of airspace or an airport; vi. meteorological conditions incompatible with flight safety; and vii. labour disputes at the operating air carrier or at essential service providers such as airports and Air Navigation Service Providers. Article 2 of the Annex, in compliance with the above-mentioned CJEU case-law, lists two circumstances that are not to be considered as extraordinary: i. technical problems inherent in the normal operation of the aircraft, such as a problem identified during the routine maintenance or during the pre-flight check of the aircraft or which arises due to failure to correctly carry out such maintenance or pre-flight check; and ii. unavailability of flight crew or cabin crew (unless caused by labour disputes)’. In the on-going Council debate on the Commission Proposal, a common approach on this key issue is still far from being reached. Several delegations continue to have difficulties in accepting the fully binding nature of the non exhaustive list of extraordinary circumstances set out in the Annex 1. They would prefer to allow NEBs and national courts to deviate from the list. This explains why these delegations are also opposed to including the concept of unexpected flight safety shortcomings in a definition. On the other hand, other delegations remain keen to removal legal uncertainties in the Regulation and consider that a binding, but open, list of extraordinary circumstances provides sufficient flexibility. Report from the General Secretariat of the Council to the Permanent Representatives Committee (Part 1) and to the Council, Preparation of the Council meeting (Transport, Telecommunications and Energy) on 5 June 2014, 26 May 2014, 9820/14 ADD 1 REV 1, cit.

  150. 150.

    In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., the European Parliament introduced, in Amendments 161–168, some changes to Annex I of Regulation (EC) No 261/2004. Amendment 168 is of interest, since it deleted the group of extraordinary circumstances which are not be considered as extraordinary provided by the Commission on its Proposal.

  151. 151.

    Commission Press Release of 14 December 2005 (IP/05/1587), available at: http://www.europa.eu/rapid/press-release_IP-05-1587_en.htm.

  152. 152.

    Case C-264/2006 Commission v Luxembourg [2007] ECR I-60.

  153. 153.

    Case C-333/2006 Commission v Sweden [2007] ECR I-86.

  154. 154.

    D.lgs. No. 69 of 27 January 2006, adopted (late) under Article 3(1) of Law No 62 of 18 April 2005 (‘legge comunitaria 2004’) GURI No. 54 of 6 March 2006.

  155. 155.

    See also Commission Staff Working Paper, Accompanying document to the Communication from the Commission to the European Parliament and the Council on the operation and the results of Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay flights, cit.

  156. 156.

    The statistics are based on data provided by the NEBs of the 28 Member States and Iceland, Norway, Switzerland. For further information, see Commission Press Release, Brussels, 15 May 2014 (IP/14/558), viewable at http://europa.eu/rapid/press-release_IP-14-558_en.htm. Find out more about statistics by consulting the Commission Staff Working Document, Complaint handling and enforcement by Member State of the air passenger rights regulation, cit., viewable at http://ec.europa.eu/transport/themes/passengers/air/doc/swd(2014)156.pdf.

  157. 157.

    The statistics are based on data provided by the NEBs of the 28 Member States and Iceland, Norway, Switzerland. For further information, see Commission Press Release, Brussels, 15 May 2014 (IP/14/558), viewable at http://europa.eu/rapid/press-release_IP-14-558_en.htm. Find out more about statistics by consulting the Commission Staff Working Document, Complaint handling and enforcement by Member State of the air passenger rights regulation, cit., viewable at http://ec.europa.eu/transport/themes/passengers/air/doc/swd(2014)156.pdf.

  158. 158.

    Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, cit.

  159. 159.

    The use of the term ‘sufficient’ with regard to sanctions is to be found in Amendment 121 of European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit. Although it is an unusual term, it aims at reinforcing the message from the EU legislature encouraging Member States’ legislatures to adopt stronger actions to tackle infringements of Regulation (EC) No 261/2004 but, at the same time, ‘to provide carriers with a financial incentive to comply with this Regulation’.

  160. 160.

    See Amendment 124 of European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., proposing to modify Paragraph 6 of Article 16. This Amendment provides that, pending the transposition by Member States of the provisions of Directive 2013/11/EU of 21 May 2013, on alternative dispute Resolution for consumer disputes (ADR Directive), OJEU L 165, 18.6.2013, p. 63, which enters into force on 9 July 2015, ‘each passenger may, at any airport situated on the territory of a Member State, complain to any National Enforcement Body about an alleged infringement of this Regulation which occurs at any airport situated on the territory of a Member State, or concerning flights from any airport situated on the territory of a Member State or flights from a third country to such airports’.

  161. 161.

    In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., the European Parliament, in Amendment 122, besides expressly referring to Directive 2013/11/EU, also urges Member States to create ‘cooperation mechanisms […] between the National Enforcement body and the body designated under Article 16(a). Those cooperation mechanisms shall include mutual information exchanges’.

  162. 162.

    See Article 1(15) of the Proposal adding Article 16(b) to Regulation (EC) No 261/2004.

  163. 163.

    Idem.

  164. 164.

    In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., Amendment 125 proposed the addition of a new Article 16(a) of Regulation (EC) No 261/2004. The Amendment proposes the drawing-up of a road map for air carriers in order to adopt compliance documents. In particular ‘Community air carriers shall prepare and submit to the National Enforcement Body of the Member State that issued their operating licence pursuant to Regulation 1008/2008 and to the Commission by 1 January 2016 a document that demonstrates in reasonable detail that their operating procedures are sufficient to ensure that they consistently comply with all relevant Articles of this Regulation’.

  165. 165.

    In the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., Amendment 128 opportunely provides that the right of passengers to submit ‘a compliant within 3 months and after the expiry of that 3-month period shall be without prejudice to his right to enforce his claims under this Regulation within the framework of the judicial system and an out-of-court Resolution’.

  166. 166.

    The above-mentioned Amendment 128 is also opportune where it provides that ‘[w]here the air carrier does not provide that full answer within that 2-month period, it shall be deemed to accept the passenger’s claims’.

  167. 167.

    See Article 1(15) of the Proposal adding Article 16(a) to Regulation (EC) No 261/2004. Amendment 130 of the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., proposes modifying this term, providing that ‘[s]uch complaints may be submitted within a time-limit, which shall be set in advance at not less than 1 year from the date on which the passenger submitted the complaint or claim to the carrier concerned’.

  168. 168.

    See Article 1(15) of the Proposal adding Article 16(b) to Regulation (EC) No 261/2004. Amendment 132 of the European Parliament legislative Resolution of 5 February 2014 on the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, cit., proposes amending this term, providing that ‘[t]he time taken to provide the final reply to the complainant shall not be longer than 90 calendar days from the date on which the designated body has received the complete complaint file’.

  169. 169.

    Article 5 of Regulation (EC) No 261/2004, ‘flight cancellation’; Article 6 of Regulation (EC) No 261/2004 ‘delay’; Article 7 of Regulation (EC) No 261/2004 ‘right to compensation’. For a detailed explanation of these provisions, see the previous Sections.

  170. 170.

    Judgment in Case C-344/04 IATA and ELFAA, cit.

  171. 171.

    The Montreal Convention in Article 19 (Delay) provides that ’[t]he carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures’.

  172. 172.

    Article 22 (Limits of liability in relation to delay, baggage and cargo) of the Montreal Convention of 1999 which provides, at Paragraph 1, that: ‘In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4.150 [now 4.194] Special Drawing Rights’.

  173. 173.

    See judgment in Case C-344/04 IATA and ELFAA, cit., Paragraphs 43 and 44.

  174. 174.

    On the matter see judgment in Case C-83/10 Sousa Rodríguez and Others, cit.

  175. 175.

    Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, OJEC L 158, 23.6.1990, p. 59.

  176. 176.

    Judgment in Case C-168/00 Leitner [2002] ECR I-2631.

  177. 177.

    See Paragraph 45 of the above-mentioned IATA and ELFAA judgment. The different fields of application of the examined rules exclude the contrast upheld by the parties to the main proceedings between the provisions of Regulation (EC) No 261/2004 and Article 29 (Basis of claims) of the Montreal Convention.

  178. 178.

    See the judgments in Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others [2005] ECR I-6451; in Case C-210/03 Swedish Match [2004] ECR I-11893; in Case C-122/94 Commission v Council [1996] ECR I-1881.

  179. 179.

    Judgment in Case C-344/04, IATA and ELFAA, cit., Paragraph 72.

  180. 180.

    This peculiarity was also confirmed by the Court, as already discussed, in its Case C-12/11, McDonagh, cit. and Case C-509/11 ÖBB-Personenverkehr, cit. See above, footnote 143.

  181. 181.

    Ibid., Paragraph 97.

  182. 182.

    Judgment in Case C-248/95 SAM Schiffahrt and Stapf v Bundesrepublik Deutschland [1997] ECR I-4475.

  183. 183.

    See the Opinion of the Advocate General Geelhoed in Case C-344/04 IATA and ELFAA, cit., Paragraph 133. Mention has already been made, in the previous sections of the fact that the EU legislature, by adopting ad hoc Regulations, has aimed at entitling passengers of all the different modes of transport to particular safeguards. See Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations, cit.; Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004, cit.; Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004, cit.

  184. 184.

    See Case C-344/04 IATA and ELFAA cit., Paragraph 98, and the Opinion of the Advocate General Geelhoed, Paragraphs 136 and 137.

  185. 185.

    See in particular Paragraphs 43 and 44 of judgment in Case C-344/04 IATA and ELFAA, cit.

  186. 186.

    Judgment in Joined Cases C-581/10 Nelson and Others and C-629/10 TUI travel and Others, cit.

  187. 187.

    Judgment in Case C-83/10 Sousa Rodríguez and others, cit.

  188. 188.

    Judgment in Case C-63/09 Walz [2010] ECR I-04239.

  189. 189.

    Ibid., Paragraph 21.

  190. 190.

    Ibid., Paragraph 24.

  191. 191.

    Ibid., Paragraph 26.

  192. 192.

    See Paragraphs 42, 43 and 44 in Case C-83/10 Sousa Rodríguez and Others, cit.

  193. 193.

    Ibid., Paragraph 43.

  194. 194.

    Ibid., Paragraph 42.

  195. 195.

    Judgment in Case C-12/11 McDonagh, cit., Paragraph 52.

  196. 196.

    Judgment in Case C-204/08 Rehder [2009] ECR I-6073.

  197. 197.

    Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJEC L 12, 16.1.2001, p. 1. Regulation (EU) No 1215/2012 of 12 December 2012, OJEU L351, 20.12.2012, p. 1, shall repeal Regulation (EC) No 44/2001 from 10 January 2015.

  198. 198.

    Judgment in Case C-204/08 Rehder, cit., Paragraph 25.

  199. 199.

    Ibid., Paragraph 38.

  200. 200.

    Ibid., Paragraphs 41 and 43.

  201. 201.

    Ibid., Paragraph 47.

  202. 202.

    Judgment in Case C-139/11 Cuadrench Moré [2012] not yet published in Reports.

  203. 203.

    See in particular Paragraphs 24 to 26 of judgment in Case C-139/11 Cuadrench Moré, cit.

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    Francesco Rossi Dal Pozzo

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Rossi Dal Pozzo, F. (2015). Secondary Rights of Passengers. In: EU Legal Framework for Safeguarding Air Passenger Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-08090-1_6

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