Ulrich Steppler Katharina Sarah Bressler June 20 2012 Advocate general affirms controversial Sturgeon decision Arnecke Sibeth Dabelstein | Aviation - Germany Ulrich Steppler, Katharina Sarah Bressler Aviation IntroductionBackgroundAdvocate general's opinionCommentIntroductionOn May 15 2012 Advocate General Yves Bot of the European Court of Justice (ECJ) delivered his opinion on the joined cases of Nelson v Deutsche Lufthansa AG (C-581/10) and TUI Travel plc v Civil Aviation Authority (C-629/10). Unfortunately for carriers, the advocate general confirmed the much-debated ECJ decision in the joined cases of Sturgeon v Condor Flugdienst-GmbH (C-402/07) and Böck v Air France SA (C-432/07). In Sturgeon the ECJ ruled that passengers whose flights are delayed, and who reach their final destination three hours or more after the arrival time originally scheduled by the air carrier, may rely on the right to compensation pursuant to EU Regulation 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 repealing EU Regulation 295/91.BackgroundRegulation 261/2004 provides that in the event of flight cancellation, passengers have a right to compensation at a fixed level. In Sturgeon the ECJ ruled that if passengers reach their final destination three hours or more after the arrival time originally scheduled by the air carrier, they have the same right to compensation under Regulation 261/2004 as passengers whose flight has been cancelled.In the two cases before the ECJ, the Cologne Local Court and the High Court of Justice of England and Wales asked the ECJ whether it would confirm the interpretation of Regulation 261/2004 which it adopted in Sturgeon.Advocate general's opinionThe advocate general's opinion can be summarised as follows:Articles 5, 6 and 7 of Regulation 261/2004 should be interpreted in such a way that passengers may rely on Article 7 for compensation if they are delayed by three hours or more on their scheduled arrival time.The advocate general did not see why he should reconsider the qualifying delay period set by the ECJ in Sturgeon, as the carriers had not put forward anything new which might call into question the interpretation that the ECJ gave of those provisions in Sturgeon.The ECJ's interpretation of Regulation 261/2004 in Sturgeon is compatible with the Montreal Convention 1999 as the type of damage covered by Regulation 261/2004 is not covered by the convention. In particular, Article 7 of Regulation 261/2004 is said not to infringe any exclusivity stemming from Article 29 of the convention.The obligation on carriers to pay compensation is not disproportionate and therefore compatible with the principle of proportionality.The ECJ's interpretation of Articles 5, 6 and 7 of Regulation 261/2004 is not incompatible with the principle of legal certainty because there was no inconsistency in the ECJ's interpretation in Sturgeon and International Air Transport Association v Department for Transport (C-344/04).Regulation 261/2004 should be applied to claims which have arisen in relation to carriage by air ever since the regulation came into force, regardless of whether such claims have already been filed.CommentThe advocate general did not take the opportunity to present an opinion that aimed at rectifying the flawed decision in Sturgeon. In addition, he did not satisfy the industry's desire for a substantiated legal opinion covering the crucial points. In particular, his comments on the first question posed by the Cologne Local Court regarding the relationship between Article 29 of the Montreal Convention and Article 7 of Regulation 261/2004 are unsatisfactory, as he dealt with this question only superficially.Even though the advocate general's opinion is not binding on the ECJ, it is legal practice that it is usually followed in the final judgment. The ECJ's final judgment in the cases at hand is expected to be handed down later in 2012.If the ECJ were to follow the advocate general's opinion, carriers would have to compensate passengers for delay pursuant to Regulation 261/2004 dating back to the date when the regulation came into force (ie, February 17 2005). Whether the two-year limitation period provided for in the Montreal Convention 1999 should apply to claims brought by passengers pursuant to Regulation 261/2004 is still under debate on a European level. Otherwise, the only defence which air carriers can rely on is the extraordinary circumstances exemption contained in Article 5(3) of Regulation 261/2004. However, in the event of a technical default, it is generally difficult for carriers to rely on this defence as a result of the ECJ's decision in Wallentin-Hermann v Alitalia – Linee Aeree Italiane SpA (C-549/07).For further information on this topic please contact Ulrich Steppler or Katharina Sarah Meigel at Arnecke Siebold Rechtsanwälte by telephone (+49 69 97 98 85 0), fax (+49 69 97 98 85 85) or email ([email protected] or [email protected]).