The ECJ dealt a hammer blow to European airlines this morning in the long-awaited joined cases of TUI and Nelson (Cases C-581/10 and C-629/10). The full text will be available shortly but judging by the press summary, the Court has adopted almost verbatim the Opinion of Advocate General Bot.

This case confirms the decision in Sturgeon (Case C-402/07) that where an air carrier operates or intends to operate a flight either departing from or landing in a EU member state, and that flight is subject to a ‘long delay’ (meaning a delay of three hours or more), each passenger will be entitled to compensation on the following basis:

  1. EUR 250 for all flights of 1,500km or less;
  2. EUR 400 for all intra-Community flights of more than 1,500km and for all other flights between 1,500km and 3,500km; and
  3. EUR 600 for all flights not falling under (1) or (2)

The Court confirmed that the temporal scope of its ruling is not limited to those passengers who issued proceedings before today’s judgment, and extends to any potential claim not already statute barred.

This case clears the way for many thousands of claims that are currently stayed by court order or consent, to continue on to trial. It is anticipated that many fresh claims will also come forward.

Airlines now face a potential liability running into the tens of thousands of pounds for each flight delayed by three hours or more. The ECJ did not however, regard this as a disproportional means of achieving the legitimate aims of the legislation, as long delays are rare (estimated at 1 in every200 scheduled flights) and in any event, airlines can rely on the defence that the delay or cancellation was caused by ‘extraordinary circumstances’.

Attention now turns to the ‘extraordinary circumstances’ defence; the new battleground in denied boarding litigation.

Another consideration is how this new liability is to be paid for. Holidaymakers may find themselves paying more for their week in the sun as a result of the ECJ’s latest piece of teleological reasoning.