Guest blog by Dr. Wiebke Seyffert, Stenger Rechtsanwälte PartGmbB

Part II: Further impact of the ECJ rulings and an outlook on COVID 19-related cases

The next challenges for airlines in court can be foreseen by looking at the recent decisions by the ECJECJ decisions taken on 21 December 2021 C-146/20; C-188/20; C-196/20 on the interpretation of a valid reservationSee Art. 3. Subs. 2 lit a) and Art. 2 lit f) when booking via a travel agent or intermediary. Here the challenge is to convey to judges how booking procedures work in a fully automated world as well as the ticket refund process when a refund is paid out by the airline. Especially in Germany where digitalisation of the public sector and therefore also the courts is way behind other countries, the knowledge of many judges on automated processes is very limited. Therefore, the understanding of e.g. how a booking via an online travel agency (OTA) that does not necessarily have a contractual relationship with the airline actually works, can be described as far from reality. Again, detailed training by the litigation lawyers will become necessary to give judges the real picture.

The same will apply when judges will have to deal with COVID19-related cancellation cases and the question if this constitutes extraordinary circumstances under Art. 5 subs. 3 of the Regulation. Again, this will not only involve the precise description of the actual situation at the time of the scheduled flight – we all know about the volatility of the rules implemented by national governments and the EC over the last two years. This tends to be quickly forgotten when we discuss the first COVID19 cancellations in court. Here we were told, for example, that in summer 2020 everyone was happy to be able to fly again and airlines should have implemented measures to ensure reliability of flights. Obviously this is a very crude opinion given the actual situation in summer 2020 with new travel restrictions and changing entry requirements coming into force almost on a weekly basis. However, in the end the airline had to admit the claim as judges see COVID19-cancellations as a purely commercial decision by the airline and therefore a situation that falls into the responsibility of the carrier – not the passenger. This is at least the currently prevailing opinion in German and Austrian courts.

The list of the various aspects that are specific to the airline industry but that are not fully  conveyed to local courts can be extended further. Courts are still flooded with cases every day, and judges that are trained to decide cases on legal grounds, are very often left alone without profound knowledge of airline related questions. We as litigation lawyers do our best to fill this gap. However, the question remains if not only the Regulation requires a reform but also the whole concept before bringing 261-claims into the courtroom. Most judges would welcome any support in this respect. Already before the pandemic in some German airport courts, judges had to deal in their daily work with 50% to 60 % of the cases being passenger claims. In the end, courts should not be flooded with claims that clog up the court system because the Regulation together with the interpretation by the ECJ leaves too many uncertainties – both for the passenger and the airlines. And in the end, it is the taxpayer who has to pay for the court infrastructure and the capacities that the authorities must provide for securing an accessible court system for everyone – not only for passenger claims.