CONFERENCE ON THE REVISION

Transcription

1 The European Aviation Club & The Int. Inst. of Air & Space Law, Leiden University (IIASL) CONFERENCE ON THE REVISION OF EU REGULATION 261/2004 Brussels 14 th - 15 th of June 2012 T h e g o o d a n d t h e bad aspects o f R e g u l a t i o n / S t u d i o L e g a l e P i e r a l l i n i & A s s o c i a t i L U I S S U n i v e r s i t y o f R o m e w w w. s t u d i o p i e r a l l i n i. i t

2 Is a revision of Regulation 261/2004 needed? Review of Regulation 261 provisions needed: Uncertainty of interpretation at European level. Different interpretations, and thus varied application, among Member States. Different interpretations under the same jurisdiction: the Italian experience.

3 Uncertainty of interpretation at European level ECJ s Decision on 22 December 2008 (Wallentin Decision). ECJ s Decision on 19 November 2009 (Sturgeon Decision). Advocate General s Opinion on 15 May 2012: i. I do not see why the court should reconsider that interpretation. ii. iii. A delay must be regarded as long, and confer entitlement to such compensation. consequently, Article 7 of Regulation 261/2004 is, in my view, compatible with Articles 19 and 20 of the Montreal Convention.

4 Different interpretations among Member States Before Sturgeon: differently from other jurisdictions (such as UK, The Netherlands, etc.), in case of flight delay over three hours or cancellation Italian judges used either to recognize passengers right to compensation provided by article 7 of Regulation 261/2004 and to indemnify passengers for pecuniary and/or moral damages on the basis of the provisions set forth by the Montreal Convention and/or on the basis of the general principles of law or equity provided by Italian Civil Code and Italian Navigation Code. After Sturgeon: Italian Judges tend to admit only passengers right to compensation provided by article 7 of Regulation 261/2004.

5 Different interpretations under the same jurisdiction : the Italian experience Case law on passengers right to compensation provided by article 7 before Sturgeon: [ ] both in case of long delay and in case of cancellation, the passenger suffers damages due to the loss of time. As consequence, the right to compensation does not exclude the so called damages indemnification [ ] (among others, Civil Court of Naples No. 4853/09; Civil Court of Rome No. 687/09). Case law on passengers right to compensation provided by article 7 after Sturgeon: [ ] Compensation laid down in Article 7 of Regulation No. 261/2004 covers both pecuniary and so called moral damages arising from flight delay [ ] (among others, Justice of Peace of Florence No. 8899/10).

6 (follow) Case law on passengers right to compensation provided by article 7 of Regulation 261 in case of extraordinary circumstances constituting an excusable delay: [ ] the strike announced by the air traffic controllers is an extraordinary circumstance constituting an excusable delay under the definition set forth by art. 5(3) of Regulation 261/04 (Justice of Peace of Naples No. 7384/12). [ ] the cancellation due to storm cannot be considered excusable according to article 5(3), considering that the modern meteorological technics allow to forecast the times of development of such kind of natural phenomena (Justice of Peace of Moncalieri No. 508/11).

7 Some critical issues of Regulation 261/2004 When applied to more extreme factors that are capable of disrupting air travel (such as the recent volcano eruption), Regulation 261 appears to be unduly unfair on air carriers. Regulation 261 exposes air carriers to potential liabilities that are far greater than the fare that passengers pay for their tickets and makes it extremely difficult for them to assess the risks and liabilities that may be incurred. Furthermore, the ECJ decision in Sturgeon sought to extend the liability for fixed-sum compensation resulting from cancellations to delays of over three hours as well, which has been further criticised by air carriers.

8 Desirable amendments Provision for a fixed compensation scheme under article 9, setting out fixed amounts for expenditure by passengers on specified items such as accommodation and refreshments. Exclusion of the obligation to care for passengers provided by article 9 in case of extraordinary circumstances under article 5(3). Compensation must be proportional to the flight ticket s cost (see the example of articles 15, 16 and 17 of (EC) Regulation No. 1371/2007 on rail passengers rights and obligations).

9 (follow) Possibility to re-route passenger by alternative means of transport. Clear distinction between cancellation and long delay and relevant consequences. Clarify conflict/concurrent application/limit of DBC and damages according to International and national rules. Consistent and uniform intepretation across the Union.