Catholic University Leuven Conference on EU Passenger Law Towards 2020 6 December 2011

1. Catholic University Leuven Conference on EU Passenger Law Towards 20206 December 2011 EU Air Passenger Law and International Governance

2. EU air passenger law and international governance Contents: • Passenger rights in EU law in relation to relevant provisions of the Montreal Convention, 1999 • The commitments of the EU under the Montreal Convention, 1999 • Decisions of the ECJ/CJEU on the above relationships • Comments and conclusions

3. EU air passenger law and international governance • Passenger rights in EU law in relation to relevant provisions of the Montreal Convention, 1999 Passenger rights under EU law in cases: • delay; • Cancellation • Denied boarding Most relevant for international law: delay See Art. 19 of the Montreal Convention: Liability of the airline for damage caused by delay unless reliance (by the carrier) on defence – that it and its servants and agents have taken all measures to avoid the damage Defence rarely invoked. Res ipsa loquitur. Damages – exclusion of “punitive, exemplary or any other non-compensatory damages”- pursuant to Art. 29 MC See also the exclusivity principle: MC99 provisions, provide an exclusive remedy for matters coming within its scope – such as claims in case of delay of passengers

4. EU air passenger law and international governance II. The commitments of the EU under the Montreal Convention, 1999 • EU’s adherence to MC 99 as a Regional Economic Integration Organisation (REIO) constituted by sovereign States • EU bound by its provisions – no exclusions or reservations • 27 Member States also ratified MC99 – all of its provisions • Implementation through EU Regulation 889/2002, amending Regulation 2027/97, also making MC99 applicable to domestic transport in an EU State (e.g., Milan-Rome) • Abundant case law, especially in the US, explaining the provisions of MC99 • EU courts not bound by decisions made elsewhere – but helpful to understand the meaning of MC99 provisions Conclusion: MC99 part of the EU’s legal order

5. EU air passenger law and international governance III. Important decisions of the ECJ/CJEU on MC99 ECJ in the IATA/ELFAA case (2006) • Recognition of clear and precise formulation of the obligations of carriers in case of delay under EC Reg. 261/2004, but: • Ignores the “exclusivity” principle of the MC99 • Distinguishes between damage (MC99) and damage (Reg. 261/2004) – which are meant to be the same • Ignores the claim to the defence of “all reasonable measures” under MC99 • Ignores the liability limits provided for in MC99 Conclusion: a bizarre decision – contrary to applicable international law

6. EU air passenger law and international governance III. Important decisions of the ECJ/CJEU on MC99 ECJ in the Sturgeon case (2009) • A delay case • The decision: EU principle on equal treatment requires that passengers whose flight is delayed for more than 3 hours should be entitled to the same remedies as passengers whose flights are cancelled – that is, those delayed passengers are entitled to standardised amounts of EC Reg. 261/2004 • EC Reg. 261/2004 is very clear on this point – see also ECJ in IATA/ELFAA case • MC99 forbids non-compensatory damages – i.e. standardised compensation • MC99 provides exclusive remedies • Speaking of governance: see the telling Question of District Court Cologne (5.8.11) on separation of powers – no answer yet Conclusion:“Sturgeon” is a confusing, and a wrong decision

7. EU air passenger law and international governance IV. Comments and conclusions • MC99 regulates the relationship between airline and passenger exclusively but not exhaustively • Cancellation and denied boarding complement the provisions of MC99 • EC 261/2004 provides clear remedies for the situations covered by it, although some provisions require explanation. • The EU, incl. CJEU, is bound by international law, especially so MC99 which is ratified by the EU. • Relationship between delay remedies under 261/2004 and MC99 is confusing – MC99 based on exclusivity. • Interpretation of delay remedies must be made under international law and 261/2004, not by general principles of EU law – task of legislator (EU Council and Parliament) • Current state of affairs is highly unsatisfactory