Legal perspective on Gahan/Buckley v Emirates In this feature | flight delays | passenger compensation | Eu regulation 261/2004 Delay, repay A recent ruling in the Court of Appeal confirmed that non-EU airlines do not get special treatment when it comes to compensation claims, as Anna Medvinskaia and Iain MacDonald explain T Emirates is the latest in a line of airlines to contest the scope of EU 261/2004 here cannot be many regulations on the EUs statute books that have faced more challenges in the UKs higher courts than EU Regulation 261/2004 (EU 261/2004), which entitles airline passengers to compensation for cancellation, delay and denied boarding. Emirates is the latest in a line of airlines to contest the scope of EU261/2004, in the joined Court of Appeal cases of Gahan/Buckley vEmirates.1 The case has, unsurprisingly, attracted considerable attention from the airline industry, with the International Air Transport Association (IATA) acting as an intervener. This latest challenge taken by way of a test case involved an argument that non-EU airlines, such as Emirates, should be treated differently for flights that include a connecting flight outside the EU. flight delays Thea Gahan flew from Manchester to Bangkok, via Dubai. Her flight to Dubai was delayed, with the result that she missed her connection and arrived in Bangkok more than 13 hours after her scheduled arrival time. Darren Buckley, Karen Buckley and Jordan Buckley flew from Manchester to Sydney, via Dubai. Like Gahan, they missed their connecting flight as a result of a delay to the first leg of their journey. The Buckleys arrived in Sydney more than 16 hours after their expected arrival time. The passengers argued that they were THE mONTrEAL CONvENTION entitled to compensation for the entirety The Montreal Convention is a treaty that was of the journey that is, from the UK to adopted in 1999 by International Civil Aviation Bangkok and Sydney respectively. Organisation member states. It amended the Emirates denied that any compensation Warsaw Convention that was created in 1929 to was payable in respect of the second leg specify the conditions under which airlines could of the journey, on the basis that it started be liable for the death or injury of passengers, and was completed outside of EU loss or damage to baggage, and delay. The territory. It would be contrary to the Montreal Convention preserves most of the aspects international law presumption against of the Warsaw Convention, but with an emphasis extra-territoriality, it was argued, for the on consumer rights. The Montreal Convention EU to seek to assert jurisdiction over a is applicable to all international flights carrying passenger, cargo or baggage. non-EU airline in relation to acts that took place outside of the EU. What that argument meant for Gahan was that she was entitled to compensation for the outbound leg to Dubai because that flight was more than three hours late but not for the overall delay into Bangkok. The Buckleys were, according to Emirates, not entitled to any compensation because they arrived into Dubai less than three hours after their scheduled arrival time. A second line of attack by Emirates related to the so-called exclusivity provision of the Montreal Convention 1999, which is an exclusive code governing the liability of the carrier for international carriage by air. Emirates claimed this had been breached. But the exclusivity provision is only breached if there is overlap in scope between the Montreal Convention and another law that the state party has enacted, or is seeking to apply. The Court of Justice of the European Union (CJEU) found that EU 261/2004 complied with the exclusivity of the Montreal Convention that is, the scope of the EU 261/2004 is different from that of the Montreal Convention, so passengers could continue to rely on EU 261/2004 to claim compensation. Emirates argued that, as a non-EU carrier, it was not bound by the CJEU and was bound by the Montreal Convention only. Where the carrier provides a passenger with more than one flight the flights are taken together for the purpose of assessing whether there has been three hours or more delay ruling by the Court of Appeal For present purposes, the Court of Appeal judgment confirms that non-EU airlines are not entitled to special treatment The Court of Appeal rejected both of Emirates arguments, deciding that in each case the passengers were entitled to compensation for the delay in arrival at their final destination. In relation to the first argument, Lady Justice Arden ruled: Where the carrier provides a passenger with more than one flight to enable him to arrive at his destination, the flights are taken together for the purpose of assessing whether there has been three hours or more delay In the case of directly connecting flights, travelled without any break between them, the final destination is the place at which the passenger is scheduled to arrive at the end of the last component flight. The fact that Emirates was a non-EU carrier was deemed to be immaterial. The EU was entitled to assert jurisdiction over Emirates on the basis that it operated out of EU airspace. The delay at the destination outside the EU was simply taken into account for the purpose of quantify[ing] a sanction and did not amount to the assertion of extraterritorial jurisdiction. The Court of Appeal went on to reject Emirates argument regarding the exclusivity of the Montreal Convention on the basis that it considered itself bound by CJEU case law, which had concluded that EU 261/2004 had a different, substantive and temporal scope from that of the Montreal Convention. Accordingly, no breach of the exclusivity provision could be established. What does the future hold? Emirates has asked the Supreme Court for permission to appeal, and it will be some time before we know whether it will get a second bite of the cherry. For present purposes, the Court of Appeal judgment is binding and it confirms, in line with the consumer protection objective of EU 261/2004, that non-EU airlines are not entitled to special treatment. Looking further ahead, the regulatory horizon is potentially clouded by Brexit, but without seeking to tempt fate it seems unlikely that UK-based carriers will be permitted to retain their current access to European skies unless there is at least some form of equivalence in terms of regulatory protection. WHAT DOES Eu 261/2004 SAY ABOUT DELAY? Airlines are required to provide passengers with care and assistance if their flights are delayed. Such assistance includes meals and refreshments and, if the delay is overnight, hotel accommodation and transfers. While EU 261/2004 does not expressly provide for monetary compensation in the case of delay, the Court of Justice of the European Union (CJEU) has ruled2 that compensation is payable in such cases, if the delay exceeds three hours. Once the three-hour threshold is surpassed, the amount of compensation is calculated by reference to the distance travelled. The final destination is therefore of utmost importance. 1 [2017] EWCA Civ 1530 2 Joined Cases C-402/07 and C-432/07, Sturgeon v Condor Flugdienst GmbH Credits Anna Medvinskaia and Iain MacDonald are barristers at Gough Square Chambers. Images: istock.com / zusek To share this page, in the toolbar click on You might also like Perfect recall November 2017