The Air Passenger as a European Citizen?

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.

The chapter contributed by Mikko Huttunen, Minister Counsellor at the EU’s Permanent Mission to the WTO and long-term Commission official, tells the interesting story of the early days of the EU’s involvement in transport regulation. Whilst transport was included in the Treaty of Rome as one of the three original common policies (alongside agriculture and fisheries and the common commercial policy), Union action came comparatively late, and only after a jolt in the ECJ’s 1985 decision in C-13/83 Parliament v Council.

The development of passenger rights can be characterized as a two-stage process: Huttunen shows how, first, market liberalisation in and of itself brought significant improvements to the daily life of air passengers – be it through the direct deregulation of routes and fares, or the liberalisation of the market in aviation services (and ancillary aspects such as ground handling and aviation security) more broadly. This perspective is frequently forgotten in today’s dialogue on aviation regulation, even though, as the author correctly notes ‘[t]he emergence of EU passenger rights cannot be understood without the context provided by the single EU aviation market’ (p 15). It was only at a subsequent, second, stage that the Commission’s attention turned to ‘Consumer Protection Measures Proper’: Regulations whose primary objective was to protect the consumer as air passenger and deal with the consequences of the liberalised EU aviation market from the consumer’s perspective more generally.

This two-stage analysis provides concrete evidence for an interesting framework that could be used in future disputes under the ever-contentious Regulation 261/2004, which grants passengers extensive rights in the case of adverse events such as flight delay or cancellation. Huttunen blames much of this litigation on an unclear mix between passenger and industry interest: the ‘tricky balance’ between market liberalisation and consumer protection (p 24).

In a subsequent chapter devoted to Travel and Tourism, Jens Karsten (a practitioner with bxl-Law in Brussels and former Commission official) reiterates several of these themes and puts them in a broader context. Maritime law (notably Regulation 392/2009 on the liability of carriers of passengers by sea in the event of accidents, which incorporates the Athens Convention of 2002), for example, is used to illustrate the ‘typical patterns of EU passenger law’, where the ‘Community legislator was quick to adopt the justification used for legal intervention in consumer markets for the purpose of legitimising its interference with the passenger-carrier relationship’. This, the author argues, constitutes a ‘novel – and, for the drafters of transport conventions, largely unforeseen – development that changed the perception of all layers of passenger law […] to become a hybrid of transport law and consumer law’ (pp 36-38).

This ‘Rise of Passenger Law’ is then charted through an excellent, if somewhat descriptive, overview of key developments, which neatly brings together a comprehensive list of pending and decided cases (as of 2012; for an up-to-date search click here) as well as relevant Regulations and Directives, presenting them in the context of international agreements. A key difference from other areas of consumer services regulation emerges: norms are laid down nearly exclusively in conventions and regulations, rather than ‘Directives which go through the filter of the national legislator in transposition.’ This is said to make ‘faults in their structure more glaringly visible’ (p 45).

This overall perhaps more critical tone becomes clearer in Karsten’s discussion of the ECJ’s leading case law: Case C-344/04 ex parte IATA and ELFAA, (where the Court held that Regulation 261/2004 was fully compatible with the Montreal Convention, as ‘the assistance and taking care of passengers envisaged by [the Regulation] in the event of a long delay to a flight constitute […] standardised and immediate compensatory measures, [and are therefore] not among those whose institution is regulated by the Convention’ [44]), for example, is characterised as ‘Bending the Rules’. The subsequent decision in Case C-402/07 Sturgeon (where compensation for delayed passengers was interpreted into the Regulation on grounds of non-discrimination) is said to be an outright breach of existing rules. Writing in the run-up to the latest round of challenges from various Member State courts, the author expresses his hope that the ECJ ‘would have the courage to overrule what has earlier somewhat negligently been decided’. This would have been a ‘novelty indeed, but worthwhile for maturing the relationship of European law and international law’ (p 44).

The hoped-for change of tack did not take place, of course: in October 2012, the Court confirmed its earlier jurisprudence in joined Cases C‑581/10 and C‑629/10 Nelson and TUI Travel plc; it did so again in the subsequent Case C-11/11 Air France v Folkerts, as discussed here. Whilst there is some technical force in Karsten’s criticism, particularly as regards Sturgeon, it could also be said to ignore one of the larger themes that emerges from both transport-related chapters in the book: the European Union’s pioneer role in improving passenger rights globally. In this sense, the provisions of Regulation 2027/97/EC on accident liability as originally drafted can, for example, be seen as a clear catalyst for the renegotiation of the out-dated 1929 Warsaw Convention, which lead to the signature of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air in 1999.

At the same time, the EU institutions themselves have become much more subtle, as the recent Commission Proposal [COM(2013) 130] for a Regulation amending Regulation 261/2004 shows. The measures proposed there would not only put previous case law on secure legislative footing, but also re-balance and clarification of passenger and carrier interests; a far cry from the supposed ‘tendency to disrespecting the boundaries set to the ambition of passenger protection by uniform international law’ (p 41).

The book’s final chapter, written by its editor, returns to the broader idea of the ‘EU consumer’, asking in essence whether consumer rights should be included in future debates about the benefits associated with European Union citizenship. At first sight, there could be several advantages in such an association, not least by encouraging the Court to be proactive in its jurisprudence: the potency of citizenship continues to be clearly demonstrated, for example, in the line of cases following on from C-34/09 Ruiz Zambrano. That said, given the Court’s existing strong emphasis on the protection of passenger rights, and its resulting aggressive case law, this is unlikely to be of significant impact. Indeed, too close a link with Union citizenship might be outright harmful to the future development of passenger rights: it could lead to arguments that non-community carriers and passengers should be excluded from the scope of Regulation 261/04. In Benyon’s own words there ‘would seem therefore to be no need to search for a new legal basis for consumer protection measures’ (p 180).

There is, on the other hand, significant merit in the suggestion that furthering awareness of passenger (and other consumer) rights might be ‘a key remedy to the malaise of a large number of citizens towards the EU’ (p 163): the average passenger continues to be largely unaware aware of her rights and entitlements, despite extensive information campaigns. Whilst the volume will be useful primarily for academics and practitioners working in the area, it is nonetheless an important contribution to this process.

Dr Jeremias Prassl

Fellow, St John’s College, University of Oxford

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