New CJEU ruling on the implementation of the Air Passenger Rights Regulation No 295/91

On 29 September 2022, the Court of Justice of the European Union (CJEU) issued its judgment in Case C-597/20, ruling that Member States may authorise the national authorities responsible for implementing Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (“Regulation”), to compel an air carrier to pay compensation on the basis of an individual complaint made by a passenger.

The judgment was issued based on a request for preliminary ruling, referred by the Budapest Regional Court, concerning the interpretation of the Regulation, namely whether Article 16(1) and (2) must be interpreted as meaning that the national authority responsible for the implementation of that Regulation, with which a passenger has lodged an individual complaint, cannot compel the airline in question to pay the compensation due to the passenger under that Regulation.

The aforementioned court ruled in a dispute between an air carrier LOT, and air passengers over a flight delay of more than three hours from New York (USA) to Budapest. The latter appealed to the Consumer Protection Department, which found a breach of the Regulation and ordered LOT to pay compensation of €600 to each of the passengers. LOT subsequently challenged the Authority’s decision, arguing that the Authority did not have the power to order the air carrier to pay compensation, only the national courts do.

In its decision, the CJEU noted that Member States may confer the power to take coercive measures on the national authority responsible for the implementation of the Regulation (e.g. payment of compensation) when an individual complaint has been lodged with it by a passenger, under the condition that both the passenger and the air carrier have the possibility of seeking remedy before a national court. While the Regulation does not impose an obligation to take coercive measures in such proceedings, it allows Member States the discretion to determine jurisdiction in the light of the protection of passengers’ rights.

The Court of Justice also addressed the question of fixed compensation provided for in the Regulation, which is designed to ensure a high level of protection for passengers and to strengthen their rights by reducing the inconveniences and hardships caused by long flight delays and cancellations. It is therefore an immediate and standardised remedy for the damages suffered, which is the same for all passengers and allows them to avoid bringing individual actions for damages before national courts. However, it is important to stress that in such cases, passengers and airlines must have the possibility of bringing an action against the decision of the body before national courts.

The Slovenian authority responsible for implementing the Regulation is the Civil Aviation Agency (CAA), which points out on its website that in the event of inconveniences, passengers should first contact the airline, and only then the CAA.

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