IFTTA Europe Palma de Mallorca 1-3 April 2009

1. Air Passengers Rights‘ RegulationRights – Problems – SolutionsKlaus TonnerProfessor for Private Law and European LawUniversity of Rostock IFTTA Europe Palma de Mallorca 1-3 April 2009

2. Tonner, Air Passengers´ Rights • Rights • - right to compensation • - - for denied boarding and cancellation, not for delay • - right to re-imbursement or re-routing • - right to care

3. Tonner, Air Passengers´ Rights • Problems • Concept of flight • Distinction between cancellation and delay • Denied boarding • The excuse of extraordinary circumstances

4. Tonner, Air Passengers´ Rights • Problem 1: Concept of flights • Is an outward and return flight, booked with a non EU carrier, outward flight starting within the EU, return flight starting outside the EU, under the scope of the Regulation? • Possible answer: yes, an outward and return flight is a „round trip“ according to the Montreal Convention, this is to say one flight.

5. Tonner, Air Passengers‘ Rights • But: ECJ 10.7.2008 – C-173/07, Emirates v Schenkel: no, different concepts of flight in the Montreal Convention and in the Regulation • Solution 1: outward and return flights are two flights

6. Tonner, Air Passengers‘ Rights • Emirates cont. • Reasons why a flight is only a single flight: • - the Reg. distinguishes departing from an airport located in a member state and from an airport located in a non member state • - The Reg. expressly refers to the term of „return flight“ • - The Reg. distinguishes between point of departure and final destination which are not the same

7. Tonner, Air Passengers‘ Rights • Relevance of the Montreal Convention • - the term of flight does not appear in the Convention • The concept of the Convention is a concept of „journey“

8. Tonner, Air Passengers`Rights • Problem 2: Distinction between cancellation and delay • When does a „delay“ become a „cancellation“? • Not yet answered by the ECJ, but three cases pending: • - C-402/07, Sturgeon v Condor, reference for a preliminary ruling of the Bundesgerichtshof, asking: Is it decisive for a „cancellation“ that the original flight planning is abandoned, and if not, in what circumstances is a delay no longer to be regarded as a delay, but as a cancellation?

9. Tonner, Air Passenegers`Rights • Delay/cancellation cont. • - C-432/07 Böck v Air France • Reference for a preliminary ruling from the Handelsgericht Wien, asking • Is a 22-hour delay still a „delay“? Does the change of the flight number play a role?

10. Tonner, Air Passengers`Rights • Denied boarding • - C-525/08 Bienek v Condor • Reference from the Bundesgerichtshof asking • Does a change in reservation constitute „denied boarding“, even if it is not investigated by the air carrier, but by the tour operator?

11. Tonner, Air Passengers‘ Rights • Denied boarding cont. • Reasons of the Bundesgerichtshof in the reference (BGH 7.10.2008 – X ZR 96/06): • Change in reservation could be treated as denied boarding as otherwise carriers could circumvent the legal consequences of „denied boarding“ by changing the reservation.

12. Tonner, Air Passengers‘ Rights • Denied boarding cont. • Further German cases are in the pipe, whether a delayed connecting flight constitutes „denied boarding“ of the second flight

13. Air Passengers`Rights • Problem 3: Extraordinary circumstances • Does a technical problem in an aircraft constitute „extraordinary cirumstances“ with the result that the carrier must not pay compensation? • ECJ 22.12.2008 C-549/07 Wallentin-Hermann v Altitalia: no. The fact that an air carrier has complied with the minimum rules on maintenance cannot in itself suffice to establish that the carrier has taken „all reasonable measures“ to relief that carrier of its obligation to pay compensation.

14. Tonner, Air Passengers´Rights • Wallentin-Hermann cont • The Regulation ensures a high level of protection for passengers; the excuse of extraordinary circumstances is a derogation from that principle and therefore must be interpreted strictly • The list in recital 14 (wheather conditions etc.) is only indicative

15. Tonner, Air Passengers‘ Rights • Extraordinary circumstances cont. • Technical problems which come to light during maintenance cannot constitute in itself „extraordinary circumstances“ • Technical problems are no extraordinary circumstances, unless they stem from events, which are not inherent in the normal exercise of the activity of the air carrier and are beyond its actual control

16. Tonner, Air Passengers`Rights • Extraordinary circumstances cont. • C-529/08 Schulze v Deutsche Lufthansa • Reference for a preliminary ruling from the Bundesgerichtshof • Does the concept of an extraordinary circumstance include also those defaults which affect the airworthiness of the aircraft or the safe completion of the flight? • Solution 3: Technical problems do not constitute „extraordinary circumstances“

17. Tonner, Air Passengers`Rights • Conclusion • Regulation (EC) No. 261/2004 is not a masterpiece of legislation • The Community legislator refuses to redraft it • Repair is needed by the ECJ • Problems are partly solved, but the main problem – distinction between delay and cancellation - still needs a word from Luxembourg