Attempts by the airline industry to overturn the European passenger compensation regulations are likely to have ended after a European Court of Justice advocate general advised the court to back the legislation.
Although these opinions are not binding, in practice it is rare for the court to go against them. IATA and low-cost trade body the European Low Fare Airlines Association (ELFAA) had challenged the regulations, which set out rules for assisting passengers in cases of denied boarding, long delays or cancellations. The two trade bodies had argued that the regulation was contrary to the Montreal Convention, which sets out principle guidelines for airline liability. ELFAA and IATA argued that the new rules added to these liabilities.
The advocate general disagreed, however, stating that there was no friction between the two sets of rules as the new European regulation was essentially about people’s rights rather than airline liability, and is therefore “complementary” to the Convention.
“The Montreal Convention regulates the kind of claims for damages that can be brought before the courts, whereas the regulation seeks to assist stranded passengers, regardless of whether there is any damage or fault on the part of the carriers,” the advocate general says.
Mark Franklin, London-based head of aviation at law firm DLA Piper, says: “I have a lot of sympathy with that position. I think everyone could see it coming.” He adds: “The regulation has been through the parliament and the council – Europe’s sovereign bodies.”
The advocate general did not agree that the lack of an “extraordinary circumstances” defence meant the regulation was disproportionate. “There is no doubt, in the view of the advocate general, that the obligations imposed on the air carriers are a suitable and proportionate means of reducing the trouble and inconvenience to passengers resulting from delays or cancellations,” the opinion says.
ELFAA also saw its claim that the regulation discriminated against low-cost carriers as they tend to have lower ticket prices while facing the same penalties as mainline carriers rejected. The advocate general told low-cost carriers that the fares they choose to charge is a matter for them and does not have a bearing on passenger rights.
ELFAA’s claim that the regulation also disadvantaged airlines over other forms of transport was thrown out on the grounds that there are “obvious differences” with other transport modes that justify the position it has taken.
Although the airline court case may have been something of a long shot, Franklin sees some sense in bringing it. The European Commission (EC) has promised to review the passenger rights rules in 2007 and Franklin says that the case may have helped build pressure on the EC in the run-up to that date. There is even a possibility that Brussels may amend the regulations before then.
Although redress at European level may be nearing the end for the airline industry, there is still plenty to be decided lower down the legal food chain. Lawyers report airlines are knocking at their doors as the first cases begin to wend their way to court. Europe’s regulations on passenger rights first came into force in February.
There has been much criticism of the lack of clarity in the regulation, and it is likely that it will be the lower courts of the member states that set the parameters of the legislation, although these rulings will not be binding. This leaves open the possibility of a lack of uniformity, although if a body of cases builds in a certain direction, it will carry some legal weight.
COLIN BAKER/LONDON
Source: Airline Business
