Araceli Turmo , 6 février 2013

The eruption of Icelandic volcano Eyjafjallajökull caused significant disruption to air traffic in 2010, raising new questions as to the extent to which air carriers have an obligation to provide care for passengers under Regulation n° 261/2004, even in extraordinary circumstances such as those. In Case McDonagh v Ryanair, decided on 31 January 2013, the low-cost airline company tried to argue that this event went beyond the notion of ‘extraordinary circumstances’ in which air carriers are bound by Articles 5(1)(b) and 9 of the Regulation to provide care to passengers in the event of flight cancellation and re-routing. Mrs McDonagh suffered a seven-day delay after her flight was cancelled due to the partial closure of European airspace following the volcanic eruption. In the main proceedings, she seeks compensation corresponding to the costs she incurred when Ryanair refused to provide her with meals and refreshments, accommodation and transport during this period.

Ryanair claimed that the volcanic eruption constituted ‘super extraordinary circumstances’, releasing air carriers from their obligations to pay compensation and to provide care under Articles 5 and 9 of Regulation n° 261/2004. The Court of Justice rejects this claim, quoting the Advocate General Bot’s view that the words ‘extraordinary circumstances’ “relate to all circumstances which are beyond the control of the air carrier, whatever the nature of those circumstances or their gravity” (§ 29). Nothing in the wording or context of these provisions indicates the existence of a separate category of ‘super extraordinary’ events. Moreover, such an interpretation would go against the aim of the Regulation, which is to ensure a high level of protection for passengers. The exceptional nature of the circumstances could therefore not release Ryanair from its obligation to provide care to passengers. Moreover, Regulation n° 261/2004 provides for no temporal or monetary limitation to the obligation to provide care, which is particularly important in the case of extraordinary circumstances leading to such long delays – any other interpretation would, once again, jeopardize the aims pursued by these provisions.

The Court of Justice also rejects Ryanair’s claims that such an obligation conflicts with the principle of an ‘equitable balance of interests’ (referred to in the Montreal Convention), with the principles of proportionality, of non-discrimination, and with Articles 16 of the 17 of the Charter of Fundamental Rights, which guarantee freedom to conduct a business and the right to property. As regards the first principle, the Court simply states that the obligations laid out in Regulation n° 261/2004 are outside the scope of the Montreal Convention. Ryanair also argued that the fact that more stringent requirements are imposed upon air carriers than on other transport sectors breaches the principle of non-discrimination. Referring to its IATA and ELFAA ruling (C-344/04), the Court notes that undertakings operating in different transport sectors are not in comparable situations, and thus the specific level of customer protection imposed on airline companies does not infringe the principle of non-discrimination.

As regards proportionality, and Articles 16 and 17 of the Charter, the importance of the objective of consumer protection (which is set out in Article 38 of the Charter) may justify substantial negative economic consequences for certain operators. Moreover, air carriers should foresee costs linked to the fulfilment of this obligation to provide care: the provisions therefore comply with the principle of proportionality. Since the other two principles are not absolute rights, and their exercise may be limited by objectives of general interest, subject to the principle of proportionality, Articles 5 and 9 of Regulation n° 261/2004 strike a fair balance between the various fundamental rights at stake. However, national courts should only award reimbursement of the amounts necessary, appropriate and reasonable to make up for the shortcomings of the air carrier in the provision of care to each passenger, in the light of the specific circumstances of the case.

Reproduction autorisée avec l’indication: Araceli Turmo, "Passengers were entitled to compensation and assistance after the Eyjafjallajökull eruption", www.ceje.ch, actualité du 6 février 2013.