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