OPINION OF ADVOCATE GENERAL RICHARD DE LA TOUR
delivered on 28 April 2022 (1)
Case C‑597/20
Polskie Linie Lotnicze ‘LOT’ S.A. v
Budapest Főváros Kormányhivatala
(Request for a preliminary ruling from the Fővárosi Törvényszék (Budapest High Court, Hungary))
(Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Article 5(1)(c) and Article 7 – Compensation for passengers – Article 16 – Task of the national body responsible for enforcing the regulation – National legislation empowering that body to order an air carrier to pay the compensation due to a passenger)
I. Introduction
1. Under Article 16(1) and (2) of Regulation (EC) No 261/2004, (2) can a Member State grant the national body responsible for enforcing that regulation the power to order an air carrier to pay the compensation due to a passenger on account of the cancellation or long delay of his or her flight?
2. The answer to that question submitted by the Fővárosi Törvényszék (Budapest High Court, Hungary) must enable the powers conferred on that body and, thus, the scope of the principles identified by the Court in the judgment of 17 March 2016, Ruijssenaars and Others, (3 ) to be clarified.
3. In this Opinion, I shall set out the reasons for my view that that provision does not preclude national legislation under which a Member State confers such a power of enforcement on its national body, provided, however, that that legislation does not deprive the air carrier of the possibility of bringing an action before the national court having jurisdiction in order to challenge the compensation thus claimed from it.
II. Legal context
A. European Union law
4. Recitals 1, 21 and 22 of Regulation No 261/2004 state:
‘(1) Action by the [European Union] in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.
…
(21) Member States should lay down rules on sanctions applicable to infringements of the provisions of this Regulation and ensure that these sanctions are applied. The sanctions should be effective, proportionate and dissuasive.
(22) Member States should ensure and supervise general compliance by their air carriers with this Regulation and designate an appropriate body to carry out such enforcement tasks. The supervision should not affect the rights of passengers and air carriers to seek legal redress from courts under procedures of national law.’
5. Article 5 of that regulation, headed ‘Cancellation’, provides:
‘1. In case of cancellation of a flight, the passengers concerned shall:
…
(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless:
…
3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.’
6. Under Article 7 of the regulation, headed ‘Right to compensation’:
‘1. Where reference is made to this Article, passengers shall receive compensation amounting to:
(a) EUR 250 for all flights of 1 500 kilometres or less;
(b) EUR 400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres;
(c) EUR 600 for all flights not falling under (a) or (b).
In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger’s arrival after the scheduled time.
2. When passengers are offered re-routing to their final destination on an alternative flight pursuant to Article 8, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked
(a) by two hours, in respect of all flights of 1 500 kilometres or less; or
(b) by three hours, in respect of all intra-Community flights of more than 1 500 kilometres and for all other flights between 1 500 and 3 500 kilometres; or
(c) by four hours, in respect of all flights not falling under (a) or (b),
the operating air carrier may reduce the compensation provided for in paragraph 1 by 50%.
…’
7. Article 16 of that regulation, headed ‘Infringements’, states:
‘1. Each Member State shall designate a body responsible for the enforcement of this Regulation as regards flights from airports situated on its territory and flights from a third country to such airports. Where appropriate, this body shall take the measures necessary to ensure that the rights of passengers
are respected. The Member States shall inform the [European] Commission of the body that has been designated in accordance with this paragraph.
2. Without prejudice to Article 12, each passenger may complain to any body designated under paragraph 1, or to any other competent body designated by a Member State, about an alleged infringement of this Regulation at any airport situated on the territory of a Member State or concerning any flight from a third country to an airport situated on that territory.
3. The sanctions laid down by Member States for infringements of this Regulation shall be effective, proportionate and dissuasive.’
B. Hungarian law
8. Article 43/A(2) of the fogyasztóvédelemről szóló 1997. évi CLV. törvény (Law No CLV of 1997 on consumer protection) (4) of 15 December 1997 provides:
‘The consumer protection authority – following consultation, where necessary, with the civil aviation authority – shall be responsible for enforcing Regulation (EU) 2017/2394 [(5 ) ] in the event of infringements of Regulation No 261/2004 within the [European Union].’
9. Under Article 47(1)(c) and (i) of the Law on Consumer Protection, that authority has the power to compel the undertaking concerned to bring an end to any identified irregularities or shortcomings within a specified period and to impose a ‘consumer protection’ fine.
III. The dispute in the main proceedings and the question referred for a preliminary ruling
10. Following a delay of more than three hours of a flight from New York (United States) to Budapest (Hungary) operated by the company Polskie Linie Lotnicze ‘LOT’ S.A., (6) a number of passengers brought the matter before the Budapest Főváros Kormányhivatala (Consumer Protection Inspectorate of the Budapest Metropolitan Government Office, Hungary), (7 ) asking it to order that air carrier to pay them, by way of redress for having infringed Article 5(1)(c) of Regulation No 261/2004, the compensation provided for in Article 7 thereof.
11. By decision of 20 April 2020, the Consumer Protection Inspectorate found that LOT had infringed its obligations under Article 6(1)(c) and Article 7(1)(c) of Regulation No 261/2004 and ordered it to pay the passengers concerned compensation of EUR 600 per person and to pay the same compensation in the future to any passenger who makes a similar complaint. The Consumer Protection Inspectorate states that, under Article 43/A(2) of the Law on Consumer Protection, which transposes the requirements of Article 16(1) and (2) of that regulation, it is empowered to compel air carriers to bring an end to infringements of the regulation within a specified period.
12. Hearing an action for annulment of that decision, the referring court has doubts as to the scope of the powers held by the Consumer Protection Inspectorate. In those circumstances, it decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 16(1) and (2) of Regulation [No 261/2004] be interpreted as meaning that where an individual complaint has been made by a passenger to the national body responsible for the enforcement of that regulation, that body cannot compel the airline in question to pay the compensation due to the passenger under [that] regulation?’
13. LOT, the Consumer Protection Inspectorate, the Hungarian, Netherlands and Polish Governments and the Commission submitted written observations. Those parties also presented oral argument at the hearing held on 2 February 2022.
IV. . Analysis
A. Initial remark
14. In order to examine the reference for a preliminary ruling, one initial remark should be made concerning the need to take account of rules of law other than those expressly cited by the referring court.
15. The question arises against the backdrop of the provisions of Regulation 2017/2394 and, in particular, Article 9(4)(f) thereof.
16. Article 1 of that regulation states that the regulation ‘lays down the conditions under which competent authorities, having been designated by their Member States as responsible for the enforcement of Union laws that protect consumers’ interests, cooperate and coordinate actions with each other and with the Commission, in order to enforce compliance with those laws and to ensure the smooth functioning of the internal market, and in order to enhance the protection of consumers’ economic interests’.
17. Pursuant to Article 3(1) of Regulation 2017/2394 and the annex thereto, ‘Union laws that protect consumers’ interests’ include those set out in Regulation No 261/2004.
18. In Article 9(4)(f) of Regulation 2017/2349, the EU legislature made the following provision:
‘Competent authorities [namely any public authority established either at national, regional or local level and designated by a Member State as responsible for enforcing the Union laws that protect consumers’ interests (8)] shall have at least the following enforcement powers:
…
(f) the power to bring about the cessation or the prohibition of infringements covered by this Regulation;
…’
19. In the light of those factors, the question is whether the provisions laid down in that article could be relevant for the purposes of assessing the nature and scope of the powers thus conferred on national bodies, pursuant to Article 16 of Regulation No 261/2004.
20. For the reasons I shall set out below, I am of the opinion – in line with the views expressed by the parties at the hearing – that such provisions are not relevant for the analysis.
21. Under Article 2(1) of Regulation 2017/2394, that regulation applies ‘to intra-Union infringements, widespread infringements and widespread infringements with a Union dimension, even if those infringements have ceased before enforcement starts or is completed’. It follows from Article 3 of that regulation that all of those infringements are defined as referring to acts or omissions contrary to EU laws that protect consumers’ interests which have done, do or are likely to do harm to the ‘collective interests’ of consumers.
22. In its interpretative guidelines, (9 ) the Commission thus pointed out that the national authorities responsible for enforcing Regulation No 261/2004 ‘have to fulfil their obligations under [Regulation (EC) No 2006/2004 (10)] where the collective interests of consumers are at stake in a cross-border context’. (11)
23. Although the national body responsible for enforcing Regulation No 261/2004 protects, as its primary task, the collective interests of air passengers, the referring court’s question arises in a very different context concerning the protection of those passengers’ individual interests. The right to compensation established by the EU legislature in Article 7 of that regulation forms part of the performance of the contract of carriage concluded between the passenger and the air carrier. The power of enforcement which that body wields following an individual complaint is therefore applied in the interests not of a group of individuals, but of a clearly defined individual. In its case-law, the Court thus refers to the collective interests of consumers as covering a situation ‘more extensive than the
relations between the parties to the dispute’. (12) The concept of collective interest (1 3)
can be
distinguished from that of individual interest. It follows that there is a clear contradiction between the
context of the case in the main proceedings and the situations to which Regulation 2017/2394 applies, characterised in particular by its objective of protecting the ‘collective interests of consumers as a group’. (14)
24. In the light of those factors, there is therefore no need to take account of the provisions laid down by that regulation for the purposes of the interpretation sought by the referring court.
25. However, in my analysis, I shall refer to the provisions laid down by the regulations in force on the protection of the rights of disabled air passengers and passengers travelling by rail, by sea or by bus and coach. (15) It is true that the different modes of transport concerned are not comparable and, as the
Court pointed out in its judgment of 2 September 2021, Irish Ferries, (1 6)
the EU legislature did not
intend to ensure an identical level of protection for each of those modes of transport. (17) However, like Regulation No 261/2004, all of those instruments provide for the designation of a national body responsible for enforcing the regulation concerned. In Irish Ferries, the Court did not neglect to note the intention of the EU legislature to adopt ‘a uniform approach’ to the interpretation of the concepts used in each of those regulations. (18) That is true, for example, of the concept of ‘extraordinary circumstances’, used in relation to the rights of both air and sea passengers. (19) I therefore consider it useful to have regard to the provisions which the EU legislature laid down in those regulations concerning the powers of the national body responsible for ensuring that the rights of passengers are respected.