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

2. 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

3. 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.’

4. 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

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

6. 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

7. 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.’

8. 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’

9. 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

10. 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

11. Professor Cees van Dam
King’s College London