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16 November 20203 minute read

Regulation 261/04 continues to evolve during 2020 with consequences for airlines – what has the Court of Justice of the European Union decided so far?

Regulation 261/04 – Key caselaw 2020

In 2020, the Court of Justice of the European Union (CJEU) addressed several cases on the interpretation of Regulation 261/2004 (EC261/04) most notably on the rights of passengers in the event of cancellation or long delay.

These cases, which dealt with, amongst other issues, questions on jurisdiction, entitlement to double compensation, and the suitability of accommodation provided as part of care and assistance obligations, provide airlines with greater certainty in deciding whether and how to defend claims.

Whilst the ECJ has generally maintained a consumer-friendly approach, several cases such as OI v Air Nostrum Lineas Aereas del Mediterraneo SA (Case C-191/19) have demonstrated that the CJEU is willing to limit the scope of EC261/04 compensation where passengers have suffered no material delay or inconvenience.

One of the most important cases decided this year was LE v Transport Aéreos Portugueses SA (Case C‑74/19). Airlines seeking to rely on the Article 5(3) extraordinary circumstances defence must demonstrate that such circumstances could not have been avoided even if all reasonable measures were taken.

Specifically on the issue of re-booking passengers on the next available flight which departs on a day later than the original scheduled departure day, the CJEU held that the reasonable measures defence must be satisfied where (1) there was no possibility of a direct/indirect re-route on the carrier or another carrier due to arrive before the alternative flight (due to either flight schedules or lack of available seats); or (2) the proposed re-routing would amount to an intolerable sacrifice in light of the carrier’s capacity. This case may prevent claimants from seeking to use creative re-routing options involving several connections which nevertheless arrive before the re-booked alternative flight.

Approaching the end of 2020, another important case is the Supreme Court appeal of Bott & Co Solicitors Ltd v Ryanair DAC. Originally due to be heard in October before being adjourned, this case is of particular relevance to airlines with terms in their conditions of carriage requiring passengers to submit compensation claims directly to them in the first instance. In February 2019, the Court of Appeal held that such terms were not unreasonable and that, where a law firm does no more than send a letter before action, it has no interest in any settlement sum.

Going into 2021, the EU (Withdrawal Agreement) Act 2018 will retain all existing EU case law into English law. Additionally, the Air Passenger Rights and Air Travel Organisers’ Licencing (Amendment) (EU Exit) Regulations 2019 directly transposes EC261/04 into English law. However, following 31 December 2020, the UK will no longer be bound by any subsequent EU case law and there is uncertainty on whether English courts will continue to make similar interpretations as their European counterparts. Further details on the impact of Brexit on EC261/04 claims is available here.

More details on the above cases, other EC261/04 cases in 2000, and also important EC261/04 case law since 2008 is available in our Key Caselaw Timeline which can be seen below.

Download Key Caselaw Timeline here.