Guest blog by Dr. Wiebke Seyffert, Stenger Rechtsanwälte PartGmbB

Part I: Impact of the ECJ rulings C-74/19 (LE/Transportes Aéreos Portugueses SA) and C- 264/20 (Airhelp/Austrian Airlines AG) on re-routing as reasonable measures

It is no secret that the airline industry has suffered a great deal under the COVID-19 pandemic.  The final consequences can only be assessed in a few years’ time, when COVID-19 has hopefully been put under full control. Despite all the instabilities and uncertainties caused by the pandemic, one thing remained the same: air passenger rights under Reg. (EC) 261/2004 (= the Regulation) and its objective of a high level of consumer protection.

Over the years, the Regulation has become one of the main fields of work for judges in local courts. You will find so-called airport courts in Germany and in Austria, i.e. courts within the jurisdiction of airports, where judges deal heavily with 261-claims – rather than housing rental claims or neighbourhood disputes being the usual playing field for judges at other local courts. With COVID-19 causing mass cancellations and requests for ticket refunds, we already see the respective number of cases reaching the courts.

While the Regulation was drafted by the EC in 2003 to establish strong consumer protection, with the aim of standardizing air passenger rights throughout the EU, the provisions unfortunately left much room for interpretation. The European Commission tried to clarify a number of details by issuing guidelines – which are not binding for courts – but it is actually the European Court of Justice (ECJ) that has done so, having received numerous submissions from many different national courts within the EU asking for clarification on the interpretation of 261-provisions.

The ECJ, which has the competence to interpret EU law mostly on a kind of constitutional level to ensure a uniform and consistent application of EU law, had to now take on a new role: as the Regulation is the direct basis for passenger claims – no implementation into national law is required – the ECJ interprets the provisions on a case-by-case basis. In the end, this has led to ECJ interpretations that are not even covered by the wording of a single provision in the Regulation, or which do not show a legally dogmatic approach, but rather an outcome with a passenger friendly solution. Unfortunately, this has led to fragmentation and inconsistencies in the jurisprudence. This “”case-by-case” approach instead of a standardised solution often leaves the parties in the courtroom and the judges at odds over how to interpret single provisions of the Regulation.

It is one thing for a judge to know how to book a flight and board an aircraft to fly to his or her summer holidays. But it takes much more know-how to assess “extraordinary circumstances”, which determine if passengers are eligible for compensation, and “reasonable measures” taken by the airline to avoid delays or cancellations, as set out in Art. 5 subs. 3 of the Regulation. While in other fields of law, judges’ knowledge about the technical or economical aspects of a case is formed by expert opinions or hearing of (expert) witnesses, this is hardly the norm in 261-cases. At least under German and Austrian rules of civil procedure – and most likely in other jurisdictions a well – it is up to the defendant to submit all details of the case in favour of the defence and to offer the respective proof.

In 261-cases such proof consists mainly of written statements, but hardly expert witness or even expert opinions. Witnesses from an airline, e.g. a pilot or heads of operations, are far too expensive to spend their time in court instead of operating a flight or supporting the operations department. In light of the amount of the single claim, it is not feasible for internationally operating carriers to send employees to court either, especially to other countries throughout Europe to attend a court hearing in a foreign jurisdiction. This very often leaves airlines without any choice but to admit the claim — even though in reality the claim might not have been valid in the first place.

If judges were able to acquire deeper background knowledge  on the airline industry in general and flight disruptions in particular – e.g., actions to be taken in case of a bird strike; pilot decisions to divert in adverse weather conditions; re-organisation of flight planning by flight operation in cases of ATC or ground handling strikes, to name just a few examples – they might be better prepared to assess the existence of extraordinary circumstances.

Even though such additional know how might help the judge to decide on the existence of extraordinary circumstances and reasonable measures taken by the airline to prevent a delay or cancellation, this  will not be sufficient on its own, thanks to the ECJ decisions C-74/19 and 264/20. Now we see in court that the focus has shifted to the question on reasonable measures taken by the airline to avoid delays or cancellations, meaning re-routing of the passenger at the earliest possible time. In most cases the plaintiff — mainly claims farmers and less so individual passengers – simply deny that the alternative flight offered was the earliest possibility to carry the passenger to their final destination. Courts interpret the rulings of the ECJ in their daily practise as the requirement of the airline to provide evidence on the re-routing attempts and measures considered before offering an alternative flight (including indirect connections to the final destination).

We hear very often from the judges: As the defendant, the airline must provide information on who checked re-routing for the individual passenger and when, which routes were considered and why they were not offered if they were theoretically an option. It is worth noting that not one of these requirements is mentioned with one word in the Regulation. This is purely the result of ECJ case-law. We have experienced that even for “major disruptions”, such as adverse weather leaving thousands of passengers stranded at an airport, judges still tend to require the airline to provide said details on the re-routing attempts taken. Not to mention the additional manpower airlines must use when collecting such evidence.

As the ECJ re-routing decisions of 2020/21 apply for flights before the decisions were handed down, we are currently dealing with re-routing questions for flights in 2018 (or even earlier depending on the national limitation periods in the individual EU member states). Databases might be helpful when checking the re-routing options for one or two passengers — but not for several hundreds or even thousands in case of major disruptions. Not to mention assessing seat availability from an ex-post perspective when submitting evidence in court. Again, judges need training as to how re-routing is factually done: what tools and means are used by the airlines; what details have to be checked for re-routing a passenger (e.g., minimum connecting times at airports; issuing of new ticket; handling of baggage, etc.). Judges are not aware of any of those aspects and apply their “common sense” – at least what they think is common sense, but which mostly does not correspond with the realities of the airline industry.

Stay tuned for Part II on COVID-19-related cases….