The Capacity of the Court of Justice of the European Union to Promote Homogeneous Application of Uniform Laws: The Case For Air Carrier Liability For Flight Delays And Cancellations

When uniform laws are enacted, one usual criticism is that the absence of a jurisdictional body to interpret them gives place to contradictory applications and inconsistent decisions. One explanation for this contradiction is the lack of binding force of domestic court decisions of different countries when they apply uniform laws[1]. The “nationalistic” interpretation of uniform law would certainly be “contrary to the goals intended to be achieved by the elaboration of a uniform law,” as affirmed by Franco Ferrari[2].

Most of the time, it follows that consistency can only be “attained if the interpreter in interpreting the provisions has regard to the practice of the other Contracting States.”[3] There is sometimes a more ambitious possibility when there is an international interpretative court entitled to issue binding decisions on a particular uniform law.  That is the case with the Court of Justice of the European Union (“ECJ”), the binding interpretative body of European Union law. However, this has proven to be untrue at least in the case of liability of air carriers for the delay or cancellation of flights, where the ECJ has not contributed to a more homogenous interpretation of uniform law. Conversely, it has increased the number of conflictive court decisions inside and outside the EU.

There are two uniform laws in the EU regarding air carrier liability whose interpretation falls to the ECJ: Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights; and the Convention for the Unification of Certain Rules for International Carriage by Air signed in Montreal, 28 May 1999 (the “Convention” or the “Montreal Convention”)[4], part of EU Law, by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38).

The two statutes should not give rise to a conflict or create contradictory application. The Montreal Convention is exclusively concerned with delays, whereas Regulation 261/2004 does not create any compensation rights in cases of flight delays[5], but isapplicable only to cases of denial of boarding (Article 4), and cancellation of flights (Article 5), creating the right of a lump sum payment for an amount determined under Article 7. On the other hand, the Montreal Convention sets in Article 19 its applicability in cases of flight delays, with a liability cap of SDR 4,150 as stated in Article 22.

The autonomous concept of delay can be inferred from Regulation 261/2004. As stated in ECJ Joined Cases C-402/07 and C-432/07 Christopher Sturgeon and Others v Condor Flugdienst GmbH and Stefan Böck and Cornelia Lepuschitz v Air France SA (“Sturgeon”): There is a delay in the case where none of the elements of the trip but the times of departure and arrival are altered. If the number of the flights changes or new boarding passes are issued, we therefore face a cancellation.

As defined, delays and cancellation not only have different spheres of application, but also give rise to different liabilities.  The Regulation constitutes neither an instrument to determine the amount of the damage nor a cap on the compensation, if any. The payment under the Regulation is aimed to be simply a lump sum, or “flat rate compensation”, as defined by the ECJ in Case C-204/08 Peter Rehder v. Air Baltic Corp.

The Montreal Convention established that any liabilities that arose under its application would be limited to a maximum of SDR 4,150 (Article 22). The content of the compensation it creates is thus very clear: compensation in the case of flight delays only if the plaintiff proves the damages suffered, limited to the Article 22 cap.

However, the ECJ affirmed in the Sturgeon case that it is in accordance with the high level of protection of consumers governing the EU to equate long delays (Article 6) with cancellation (Article 4) and denial of boarding (Article 5). The ECJ not only re-wrote the Regulation, granting the lump sum payment of Article 7 to flight delays, but also created a conflict in the application of uniform laws that did not exist before: The ECJ does not mention Article 29 of the Montreal Convention[6], nor does it clarify how this Article is affected. The ECJ based its decision on Case C-344/04 International Air Transport Association v. Department for Transport [2006] (“IATA”)[7]. However, in that case, the ECJ just affirmed the validity of Regulation 261/2004 and recognized the powers of the Commission to legislate on EU flight passengers, irrespective of the Montreal Convention. The IATA decision never discussed the lump sum payment defined in Article 7. Neither the IATA decision nor the Regulation itself allowed the ECJ to reach the conclusion of the Sturgeon decision.

Prior to the Sturgeon case, the Montreal Convention was the right instrument to obtain compensation in case of flight delays, and the Regulation was the right instrument to obtain compensation in case of flight cancellations or denials of boarding. Now, both norms are in conflict.

The inconsistency created by the ECJ in the Sturgeon case may have multiple consequences.

In principle, compensation is excluded in cases of extraordinary circumstances: Article 5(3) of Regulation 261/2004 and Article 19 of the Montreal Convention so establish.

The concept of extraordinary circumstances is to be interpreted strictly when Regulation 261/2004 is concerned, as clarified by the ECJ in case C-549/07 Friederike Wallentin-Hermann v. Alitalia [2008] (“Alitalia”). The ECJ affirmed that political instability or meteorological conditions incompatible with the operation of the flight are relevant only if they create an unexpected risk, but are not directly an exemption. For instance, a technical problem in an aircraft would be “extraordinary” only if it comes out from an event that is not normal to the activity of the aircraft. This has multiple technological implications and makes the air carrier responsible for assuming all regular checks to avoid these inconveniences. This is acceptable in the context of a lump sum payment, and in cases of flight cancellation or denial of boarding, but seems clearly burdensome in cases of delays. After Sturgeon, this distinction is no longer possible .

Furthermore, the value of Article 19 of the Montreal Convention, which excludes liability in case of delay if the carrier proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage, or that it was impossible for it or them to take such measures, is partially derogated without justification. If we accepted the argument of the ECJ that Regulation 261/2004 intervenes at an earlier stage than the Convention, exclusion of liability under the Regulation would amount to an exclusion of the more burdensome liability under the Montreal Convention. This is unpersuasive: First, because the nature of both amounts is different; second, because the text of both clauses is also different.

Unlike affirmations by some commentators[8], this is not necessarily the last word. In 9 December 9 2010 (case no. Xa ZR 80/10)[9], the BGH filed a question before the ECJ regarding the position of the Regulation with respect to its application to delays.

However, even if these particular situations are eventually clarified by the ECJ, they will shed only a small amount of light into a sky full of clouds. The ECJ has proven unable to give reliable orientation to domestic courts and litigants and the binding character of its decisions only makes the situation more inconsistent because it inoculates an element of incoherence into the European judicial system. It can be argued that the European Union should consider establishing a system of informal inter-court communication that would operate at a lower level of coordination¾less ambitious but certainly more useful, given the deep differences between European courts at this moment of the European integration.

Manuel Gimenez Rasero is an attorney at Areilza abogados and was Rafael del Pino Scholar at the New York University School of Law (LL.M. ’11).


[1] For this conclusion in case law, see Tribunale di Padova (Italy), 25 February 2004, available at: http://cisgw3.law.pace.edu/cases/040225i3.html; Last Checked: 9 May 2011.

[2] See Franco Ferrari, Uniform Interpretation of the 1980 Uniform Sales Law, 24 Ga. J. Int’l & Comp. L. 183, 198 (1994).

[3] Id.

[4]Available at http://www.jus.uio.no/lm/air.carriage.unification.convention.montreal.1999/

[5] Delayed flights (Article 6) just give rise to some “assistance obligations” under Article 9.

[6] Article 29, Basis of claims.

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights.

[7] For an overview of the decision, see the summary of important judgments at:  http://ec.europa.eu/dgs/legal_service/arrets/04c344_en.pdf (last checked, 29 April 2011) or the full text of the decision at:

[8] Christiane Leffers, The Difference Between Cancellation and Long Delay under Regulation 261/2004: This is a commentary on the judgment of the European Court of Justice dated 19 November 2009 (Sturgeon v Condor Flugdienst GmbH and Böck & Lepuschitz v Air France SA, joined cases C-402/07 and C-432/07)” Travel Law Quaterly, 2010, available at: http://www.avocado-law.com/fileadmin/avocado-law.de/downloads/Difference_Cancellation_Delay_261_2004.pdf (Last checked 9 May 2011)

[9] Id.

The Center for Transnational Litigation and Commercial Law aims at the advancement of the study and practice of international business transactions and the way to solve related disputes either through litigation or arbitration. As commercial transactions become increasingly international, it is vital to the legal and business communities to understand and analyze the practices and legal principles that govern relationships between firms and between firms and consumers in the international arena