Tag Archives: Aviation

The Air Passenger as a European Citizen?

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Dr Jeremias Prassl

Frank S Benyon (ed), Services and the EU Citizen (Hart Publishing: Oxford, 2013) £55

The most recent volume in Hart Publishing’s Modern Studies in European Law series is a collection of essays edited by Frank S Benyon. Drawing on a series of workshops held at the European University Institute in 2010, its chapters cover a broad range of services regulated under EU law – from Electronic Communications and Broadcasting to Health Care and Transport. The overall goal of the project is an interesting one: to consider the potential interaction of two key topics in EU law – the notion of Union citizenship (Art 20 TFEU), and consumer protection (notably in Art 114(3) TFEU). As the editor puts it in his introduction, might ‘consumer advantages [...] not be seen as forming a constituent part of the rights of the EU citizen’?

In keeping with the theme of my recent posts here at EUtopiaLaw, this review focuses on the two substantive chapters dedicated to transportation and travel law, as well as the final chapter, in which the editor draws together the findings of the workshop series. This is a particularly difficult area in which to explore the theme of citizenship: travel is, by definition, not limited to EU citizens: the European Union sees just over a third of worldwide air passenger traffic pass through its airports each year. In drawing a similar conclusion in the final chapter, Frank S Benyon nonetheless makes the crucial point that consumer protection in the field of services is amongst the most directly relevant EU achievements for individual citizens. Continue reading →

Reforming Air Passenger Rights in the European Union

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261Dr Jeremias Prassl

Fellow, St John’s College, University of Oxford

Commission Proposal [COM(2013) 130] for a Regulation amending Regulation 261/2004

The enactment of Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights has been one of the most successful areas of EU action in the field of consumer protection. At the same time, its provisions have shown their potential to impose significant additional cost on operators, thus leading to persistent compliance problems as airlines repeatedly challenge the validity and interpretation of the Regulation. On March 13, 2013 the European Commission finally heeded calls for reform, putting forward a proposal for a new Regulation to amend and extend the existing regime.

Proposed Changes

There are two broad aims pursued by the Commission’s proposals: the clarification and fine-tuning of the existing Regulation 261/2003, and the introduction of a suite of new passenger rights, underpinned by measures aimed at ensuring the effective application of air carriers’ obligations. The first part of this post sets out the key changes, in particular where the proposals relate to existing provisions as interpreted by the Court. Continue reading →

Sturgeon revisited (yet again): Case C-11/11 Air France v Folkerts

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Dr Jeremias Prassl

Regulation 261/2004 on common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights continues to trigger litigation in the highest Member State courts. A clear pattern has begun to emerge: following on from an airline’s persistent refusal to comply with compensation or care obligations, a preliminary reference indirectly challenges the validity and / or scope of the Regulation. The Court’s answer is nearly inevitably in favour of the passenger, confirming the validity of the Regulation and purposively interpreting its terms.

Facts and Questions Referred

Mr and Mrs Folkert had booked flights departing Bremen, Germany at 6:30 am, with a scheduled arrival time of 11:30pm in Asunción, Paraguy. Their initial flight was delayed by just under 2,5 hours, but due to two missed connections in Paris and São Palo this resulted in an overall arrival delay of 11,5 hours. The Folkerts brought what might appear (by now) to be a relatively straightforward claim for €600 in compensation pursuant to Article 7(1)(c) of the Regulation (flights in excess of 3,500km distance). Indeed, their case plainly falls within the ECJ’s previous ruling in Case C-402/07 Sturgeon that

passengers whose flights are delayed may rely on the right to compensation laid down in Areticle 7 of Regulation No 261/2004 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier [61]. Continue reading →

Ryanair v. Competition Commission and Aer Lingus in the Court of Appeal (Civil Division) [2012] CAT 29

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Majority and Minority Shareholders Commuting between Dublin, Brussels and London

Pedro Caro de Sousa

Associate, Linklaters LLP; DPhil (Oxon)

Keeping with this blog’s recent focus on aviation related cases, this post will look into a decision by the Court of Appeal on whether the European Commission’s exclusive jurisdiction to review a concentration precludes the Competition Commission from simultaneously looking into a minority shareholding in the target company – and, in particular, whether the Competition Commission can investigate Ryanair’s minority stake in Aer Lingus when the European Commission is pursuing a merger review of a proposed acquisition of control by the former over the latter.

The Factual Background

For a proper understanding of this case an extensive review of the factual background is required. This description is quite long, as the disputes between Ryanair and Aer Lingus have been bouncing around regulators and courts for the better part of a decade. A short description follows; for a more detailed review of the factual background of this case, please see Annex I below.

In 2006 Ryanair acquired a minority stake in Aer Lingus with a view to acquire control over it. This proposed acquisition was prohibited by the European Commission (the “Prohibition Decision”). Ryanair appealed this Prohibition Decision, but in the meantime the OFT commenced an investigation into Ryanair’s minority stake in Aer Lingus. This investigation was subject to a decision by the Court of Appeal, who held in Ryanair Holdings plc v Office of Fair Trading (the “Ryanair C/A Decision”) that, inasmuch as the minority stake was held to be part of the concentration, and until Ryanair’s appeal of the Prohibition Decision had been decided without possibility of further appeal, it was evident that concurrent investigations in the UK and in Europe would be both oppressive and mutually destructive; and that the duty of sincere cooperation went beyond avoiding inconsistent decisions and extended to overlapping investigations, requiring the OFT to desist from making any reference to the Competition Commission during that period. Continue reading →

The Extension of the EU Emissions Trading Scheme to the Aviation Sector does not contravene international law

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Kate Cook

On the 6 October 2011 AG Kokott rendered her opinion in Case C-366/10 The Air Transport Association of America and Others.  The case concerns a challenge brought by airlines based outside the EU to the EU’s attempt to address the issue of CO2 emissions caused by airlines flying into and out of the EU by extending its well known emissions trading scheme to the aviation sector.  As such the case is important for the future of EU climate change policy, both in this area and more widely, as negotiations remain fraught with difficulty in achieving multilateral solutions to the range of challenges posed by climate change. The case also raises once again the thorny issue of the relationship between EU law and public international law. 

According to a 2010 Report published by the International Centre for Trade and Sustainable Development, aviation has the greatest climate impact of any mode of transport. The report points out that there are two ways to measure this impact: (1) measuring Co2 emissions alone and (2) taking non-CO2 effects into account (‘the multiplier effect’). Adopting the second of these approaches, and recognising the scientific uncertainty in assessing such additional effects, the report notes that current consensus is that the climatic impact of aviation emissions is double (according to the IPCC up to four times) the impact from CO2 alone. This implies that aviation is responsible for 4.9% of the climate change impact attributable to human activities.

The Parties to the 1997 Kyoto Protocol agreed to pursue the issue of reducing/limiting emissions produced by aviation through the International Civil Aviation Organisation (ICAO). However in the absence of any broader multilateral agreement on a legal framework for reducing emissions from the aviation sector thus far, the EU has adopted a regional framework by extending its emissions trading system to the aviation sector.

Continue reading →