The Opinion of Advocate General Bot in McDonagh v Ryanair (C-12/11)

In the spring of 2010, the Icelandic volcano, Eyjafjallajökull caused a closure of airspace which affected almost 10 million air passengers and cancelled 100 000 flights. One of these passengers was Denise McDonagh, whose flight from Faro to Dublin on April 17 was affected and she was not able to return to Ireland until April 24. She claims that Ryanair is to compensate her for her costs, basically her meals, accommodation and transport, during her forced extra stay. The legal basis for her claim is Regulation No. 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. The regulation states that if a person is affected by a delayed flight that has been caused by the air carrier, that person has the right to be compensated. If the delay has been caused by extraordinary circumstances, in this case the volcano, the air carrier does not have to pay a certain kind of compensation, but are still required to pay for accommodations, meals, and transportation (see Art. 5 of the Regulation).

The Court of Justice is requested (by an Irish district court) to give a preliminary ruling, among others, on the question whether an event such as the closure of airspace owing to the eruption of the Eyjafjallajökull volcano is covered by the notion of ‘extraordinary circumstances’ as used in Regulation No 261/2004, requiring the air carrier to provide care for passengers whose flights have been cancelled, or it falls within a category of events which goes beyond ‘extraordinary circumstances’, thus releasing the carrier from such an obligation.

The Advocate General has delivered his opinion on 22 March 2012. According to him the situation constitutes extraordinary circumstances for the purposes of Regulation No 261/2004, and that it does not offer any release from or limitation of the air carrier’s duty to provide care for the passengers concerned. Advocate General Bot points out that the Court of Justice has already established in a previous judgment delivered in 2009 (Sturgeon and Others) that the regulation seeks to give a high level of protection for passengers who are suffering inconvenience because of cancelled flights and to avoid that stranded passengers are abandoned and left on their own (par. 37 of the Opinion). He concludes that the obligation to pay compensation, which does not applies when it is proven that the cancellation was due to extraordinary events that could not have been avoided, differ in that aspect to the obligation to care, which still remain even in those situations. The rationale underlying these two obligations is completely different.  The Advocate General states, “[i]t seems to me, therefore, that the provision of care for air passengers is especially important and essential where their flights have been cancelled as a result of the eruption of a volcano which has caused the airspace of a number of Member States to be closed for several days, thus forcing some passengers to remain at the airport – very often a long way from home – until that airspace is reopened. If it were to be recognised that, in such circumstances, the air carrier is not required to provide care for its passengers, this would significantly undermine the effectiveness of [the regulation] and the system of which those provisions form part, which seeks to ensure a high level of protection for air passengers.” (par. 44 and 45)

Ryanair has been trying to argue that there is an implied limitation in the regulation, and the air carrier has to pay compensation maximum €80 per night and for a maximum of three nights where the cancellation is caused by extraordinary circumstances. Where these numbers come from is a mystery itself, and the Advocate General does not think that the regulation implies these limitations (par. 50).

The closure of airspace is not an event that happens very often, and the air carriers often provide some kind of insurance. Considering this, there should be a possibility for Ryanair to get the expenses covered by this kind of insurance. Considering that only 0.1% (10.000 out of 10 million) of the affected travellers applied to get their money back for their expenses arising from their extra days spent abroad, and not everyone travels with Ryanair, it is hard to see why these applicants cannot have their expenses reimbursed. However, Ryanair is probably thinking of what might happen in the future if the airspace is closed for a longer time than it was when this situation occurred, and this is probably why they have introduced the extra ‘EU261’ levy. Moreover, as the Advocate General says, the air carrier must foresee costs of this kind (par. 60).

The Court has not yet reached a decision in the question of Ms McDonagh and her right to compensation from Ryanair, but it will probably follow the reasoning made by the Advocate General as in most of the cases. As the Advocate General argues, the regulation is in place to give a high level of protection for those who experience inconveniences caused by the cancellation of their flights and are left stranded, sometimes for days. There must be some responsibility for the air carriers to provide care for their passengers and to make sure that the delay does not affect them too much. Not everyone has the means to afford a number of days stranded at an airport. If the responsibility could be avoided, the protection would lose its power.

by Josefin Karlsson, Charti Lekmane, Richard Muhire and Sebastian Wetterberg


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Örebro Universitet (Sweden)
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3 Responses to The Opinion of Advocate General Bot in McDonagh v Ryanair (C-12/11)

  1. Airton Valente Jr. says:

    It seems to me that to evaluate correctly this case, is necessary to understand the meaning of ‘extraordinary circumstances’ mentioned on the Regulation 261/2004 and the difference between compensation and assistance mentioned on article 7 and 9 on the abovementioned Regulation. The Advocate General, in his opinion, states that the Regulation does not define it, but only gives a few examples. Furthermore, the main idea of EU legislature, as said by the Advocate General, was to use the expression ‘force majeure’ which is generally used to ‘describe events over which humans have no influence because they are unforeseeable, irresistible and external to them’. On his definition extraordinary is something “which is out of the usual course or order, which is abnormal, exceptional or unusual”. For those reasons, extraordinary already means beyond human control. Concerning to the difference between compensation and assistance we could say that the first one is related to pre-fixed amount of money, calculated on basis of the last destination, while assistance is related to necessary expenditures that guarantee the basics needs of a person (food, accommodation, transportation and even communication). Only the compensation can be excluded when cancelation, delay or denial boarding happens for extraordinary circumstances.
    But that is not all. It has to be borne in mind that the relation between the air carrier and an individual is a consumption one, which provides principles that protects the fragile party (consumers). Two other things have to be considered. First, that one of the parties is economic superior than the other; secondly that the transportation contract signed by a person that buys the ticket is a contract of adhesion, which gives no possibility to discuss the conditions in it.
    These are probably the reasons why the Regulation guarantees a high level of protection to the passengers, and why the Advocate General opinion indicates that the air carrier has to support the expenditure on assistance with a passenger who had to stay, against her will, in a place far away from home. Maybe, if the passenger is not allowed to fly from her/his home town then these arguments, in cases with extraordinary circumstances, would not apply. But anyway, in this case, the Advocate General considers that the article 5 and 9 of the Regulation obliges the air carrier to provide, at least, care assistance even if the cancelation occurs because of extraordinary circumstances.
    It is also to be borne in mind that the economic risk of the commercial activity has to be supported by the company. For that reason, the post well pointed that it seems that some insurance would have be engaged. So, in this case, there will be no place for arguments considering economic lost, probably bankruptcy and so on.
    However, the issue brought by this case should allow the national court to define, once is not clear in the foregoing Regulation, and how was mentioned by Advocate General in his opinion, the average cost of assistance in cases with extraordinary circumstances.
    Another point is that the question was referred by the Metropolitan District Court and for that reason it took less time than usual, but most important is that coming the question from a low court it could reinforce the power of this court that has an ECJ decision behind and allows it to circumvent the restrictive jurisprudence of a higher court.

  2. Amelie says:

    It is a fact that EU law does not require or release from, temporal or monetary limitation of, the obligation to provide care to passengers and to pay them reimbursement as for accommodation, meals and refreshments.
    As the Advocate General is pointing at in his opinion, the relevant question in this case, if the eruption of the Eyjafjallajökul volcano can be seen as extraordinary circumstances, is not defined in EU law. In the opinion of the Advocate General he is saying that the interpretation of the term extraordinary circumstances refers to all circumstances over which the air carrier has no control and that there should not be seen as particularly extraordinary ones. I entirely agree with his reasoning and this is why there should be some responsibility for Ryan Air vis-à-vis its passengers. Of course it can be argued that an eruption by a volcano cannot be Ryan Airs or any other air carriers fault, but who is then to be held responsible when these situations occur? If this is not an extraordinary circumstance, what is?

    The regulation, as I understand it, exists to give a strong protection to the passengers who are in a situation where they are stranded at an airport. At least there should be some responsibility to ease this. The passengers are often travelling a long way and are in a position somehow depending on the air traffic and the air carriers. There are no suitable substitutes for an airplane in such circumstances. In that situation, the passengers are left with no choice but stay at the airport. Subsequently the need for essential things like meals, accommodation and so on becomes important. Not all passengers could afford to pay for this. The compensation by the air carrier should of course be within a reasonable amount, which the Advocate General also argues. Further, due to the fact that this kind of eruptions does not happen frequently, I would like to agree that the air carrier should foresee or have some sort of funding for these kinds of costs.

    The Court will most likely take guidance in the opinion of the Advocate General as to create a more certain area for interpreting the regulation and the term extraordinary circumstances. Maybe it will also point out more explicitly the responsibility of the air carriers for its passengers in circumstances like this. Although, the fact seems clear, EU law should not entail any release from or restraint of the responsibility to provide care.

  3. Lina Olsson says:

    It is my opinion that the interesting discussion lies in the principle of proportionality, determining the conflict between consumer protection and business conduct. The principle of an equitable balance of interests must be taken into consideration. The regulation seeks to ensure a high level of protection for air passengers regardless of whether they are denied boarding or whether their flight is cancelled or delayed, since they are all caused similar serious trouble and inconvenience connected with air transport. On the other hand, the company in question must not be imposed a disproportionate and unfair burden. The assistance must accordingly be provided within the limits of what is proportionate and reasonable in the light of the specific circumstances of the case and the cost of care and re-routing. I agree with the Advocate General when he says that the air company actually should take these kinds of occurrences into account in their budget, in order to cover the costs which can incurred. In such a conflict between air passenger´s protection and the unfair burden of companies, the passenger’s rights are of greater importance. Both the Montreal Convention and the Regulation tend to ensure a high level of consumer protection.

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