Ash cloud payouts

A resolution passed by the Transport and Tourism Committee of the European Parliament last month calling for better airline passengers’ rights was closely followed by the Opinion of Advocate General Yves Bot of the Court of Justice of the European Union issued earlier on this month, dealing with travellers encountering extraordinary circumstances during their itinerary.

The Advocate General rejected Ryanair’s proposition that an accommodation limit of €80 a day for up to three nights was applicable- Josette Grech

Such was the case of the Icelandic volcano eruption a year ago: the situation was quite extraordinary with the airspace over most of northern Europe closed, hundreds of thousands of flights cancelled and millions of passengers stranded. Denise McDonagh was one of the passengers hit by the disruption of air service. She was booked to travel on a Ryanair flight from Faro to Dublin in April 2010 but her flight was cancelled, allowing her to return to her homeland Ireland only a full week later. McDonagh brought a claim against Ryanair in Dublin’s Metropolitan District Court alleging that Ryanair violated EU law by failing to provide her with care and assistance while she was stranded, as required under the 2004 EU Regulation which establishes common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.

She consequently claimed compensation for the costs she incurred in meals, refreshments, accommodation and transport, totalling some €1,200.  Ryanair argued that it was not responsible to give care and assistance to its passengers given that the ash cloud crisis went beyond extraordinary circumstances. Under the EU regulation, airlines are bound to cover the cost of care during disruption due to extraordinary circumstances although they are not obliged to pay compensation for lost flights.

The Dublin Court referred the case to the CJEU to consider whether the ash cloud caused by the volcanic eruption exempted Ryanair from having to provide care in this situation and whether the EU Regulation contained an implied limitation on the amount of care Ryanair needed to provide.

Underlining the fact that the notion of “extraordinary circumstances” is not defined under EU law, Mr Bot opined that its meaning had to be decided in accordance with its usual meaning in everyday language. He dismissed Ryanair’s argument that the volcanic eruption was an event beyond the extraordinary, pointing out that there was no higher category than extraordinary and consequently the ash cloud crisis fell within that category. He pointed out the need for passenger protection in such extraordinary situations, where the waiting period is particularly lengthy and the vulnerability of stranded passengers is heightened. Access to essential goods and services throughout that period is a must.

On the basis of EU law, he concluded that the requirement to provide care, consisting of free of charge meals and refreshments and where necessary hotel accommodation and transport to passengers remained even in a case of force majeure, or as it is commonly known, act of God. In addition, since EU law does not support temporal or monetary limits to such care, the Advocate General rejected Ryanair’s proposition that an accommodation limit of €80 a day for up to three nights was applicable. Meanwhile, however, airlines are not obliged to pay additional compensation beyond mandatory assistance if they can prove the flight was cancelled due to reasons beyond their control.

It remains to be seen whether the CJEU will follow the reasoning of the Advocate General, which it does in the vast majority of cases. That would be good news to passengers but not so much to air carriers that may, as a result, face thousands of claims from disgruntled passengers.

jgrech@demarcoassociates.com

Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.