Brussels, 28/06/2011 (Agence Europe) - Air passengers may claim reimbursement of reasonable expenditure incurred where an airline fails to provide care and assistance in the event of a cancelled flight. In addition, this compensation may not be offset by the compensation to be paid when a flight is cancelled.
That is the opinion delivered by Advocate General Eleanor Sharpston, delivered on Tuesday 28 June in Case C-83/10. The Pontevedra commercial court asked the Court to interpret two points in the regulation putting in place common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation - Regulation (EC) No 261/2004. Does “cancellation” refer only to the failure of a plane to take off at the scheduled time or also to cases where flights take off but fail to reach their destination, including where they are forced to return to the airport of departure? Does “further compensation” that passengers can demand cover only the kinds of compensation set out in the regulation (such as for provision of care) or can it extend to other forms of damages, such as non-pecuniary losses?
Advocate General Sharpston finds that a flight is “cancelled” within the meaning of the regulation if, even after departing as planned, it does not arrive at its scheduled destination but returns to the airport of departure. A flight is intended to carry passengers and their baggage from A to B. When it departs from A as planned but then returns to A and proceeds no further, leaving passengers and their luggage at their starting point, the flight cannot be said to have operated. “Nothing of the essence of the operation has been achieved, as the carrier has carried no-one, and nothing, anywhere”, she says.
On the second point, the advocate general finds that the reference to “further compensation” cannot be limited to the compensation of the type provided by the regulation: the regulation does not set any limitation on the type of damage for which a passenger may make a claim. That question must be determined in light of national law, and may, therefore, include non-material damage. Further, the advocate general considers that a passenger may seek compensation for expenditure incurred where the airline has failed to provide care and assistance. Whilst such compensation is not explicitly provided for in the regulation, it is clear that the obligation to provide care and assistance would be futile if it could not be enforced. In addition, the obligation to provide care and assistance is in no way contingent on a request by the passenger at the time, and such a request is not necessary in order to seek compensation. Finally, the advocate general finds that the reimbursement of such expenses should not be considered as “further compensation” from which other compensation granted under the regulation may be deducted. The duty to pay compensation for a cancelled flight and the duty to provide care and assistance are concurrent and cumulative - the airline may not escape liability by offsetting one against the other. Thus, compensation paid by the airline for cancellation of a flight cannot be deducted from reimbursement of costs incurred by the passenger because of the airline's failure to provide care and assistance. (F.G./transl.rt)