EU Passengers’ Rights: Sturgeon and the Member States Professor Cees van Dam King’s College London info@ceesvandam.info

German consumer survey 2010 obligation to provide care and compensation is ignored by large majority of airlines only 25% of airlines offered compensation, mostly only after passenger’s request more than 50% of passengers was not informed of their rights most airlines respond very slowly to requests 22% of passengers did not receive answer 3% of cases ran smoothly for passengers

Germany (1) Bundesgerichtshof (BGH), one of referring national courts, followed Sturgeon (18/02/10): Sturgeon does not deal explicitly with question whether result is in line with Montreal BGH already answered question affirmatively (10/12/09) ‘Apparently, the European Court was of the same opinion; that it would have overlooked Art. 29 MC cannot be accepted.’

Germany (2) BGH 10/12/09: Art. 19 ff Convention: compensation for individual damage in case of delay (IATA) Art. 6 Re (delay): care = identical damage => standardised compensation; not regulated by MC (IATA) Art. 5 Re (cancellation): care and compensation are standardised compensation (Wallentin); not regulated by MC Sturgeon (delay): compensation is standardised compensation; not regulated by MC

Austria Handelsgericht Wien (Commercial Court Vienna) second referring national court in Sturgeon followed Sturgeon on 15th April 2010 no mentioning of Montreal Convention

The Netherlands (1) Dutch courts have followed Sturgeon in 9 cases in at least 7, airlines argued, inter alia, that Sturgeon was not consistent with MC courts dismissed arguments in all cases: no conflict between Convention and Sturgeon IATA distinguished between standardised compensation (Regulation) and individualised compensation (MC); both forms exist next to each other; has not changed by Sturgeon no conflict between Sturgeon and legal principles or international treaties no reason to ask further preliminary questions

The Netherlands (2) in one of pending Sturgeon cases airline argued that court should stay proceedings because of (intended) reference by High Court in London airlines could not produce evidence that questions were referred District Court The Hague 19th October 2010: ‘The Court considers a preliminary ruling not necessary for a decision in this case. The defendant’s request to stay the proceedings will be dismissed.’

The Netherlands (3) District Court Breda 20/10/10: preliminary questions re possible conflict between Art. 29 MC and Sturgeon Art. 29: ‘In any action for damages, punitive, exemplary or any other non-compensatory damages shall not be recoverable.’ ‘Loss of time does not necessarily lead to actual damage suffered’

The Netherlands (4) Sturgeon compensation = for loss of time loss of time identical for each passenger => standardised compensation Breda judge: consequences of loss of time (‘consequential damage’) differs per passenger => individual compensation under MC

UK reference and Wünsche-test Wünsche-test: ‘new considerations which might lead the Court to give a different answer to a question submitted earlier’; here: absence of any reference to legislative history absence of opportunity to hear submissions on principles of equal treatment, legal certainty or proportionality failure to take account of Montreal These are all legal considerations; very unlikely that Court has overlooked them

Professor Cees van Dam King’s College London info@ceesvandam.info