B. Consideration of the question referred
26. By its single question, the referring court asks the Court, in essence, whether Article 16(1) and
(2) of Regulation No 261/2004 must be interpreted as precluding national legislation under which the national body responsible for enforcing that regulation has the power to order air carriers to pay the compensation provided for in Article 7 of the regulation on account of the cancellation of a flight. (20)
27. As I have stated, the answer to that question must enable the scope of the powers conferred on that national body to be clarified in line with the principles previously identified by the Court in Ruijssenaars and Others.
28. In the operative part of Ruijssenaars and Others, the Court ruled that ‘Article 16 of [Regulation No 261/2004] must be interpreted as meaning that, where an individual complaint has been made by a passenger to the body designated by each Member State pursuant to Article 16(1) of the regulation following the refusal by an air carrier to pay to the passenger the compensation provided for in Article 7(1) of the regulation, that body is not required to take enforcement action against the carrier with a view to compelling it to pay the compensation’. (21)
29. That interpretation is based on three considerations which the Court set out as a first step in its reasoning. The first consideration concerns the actual wording of Article 16 of Regulation No 261/2004 (paragraphs 28 to 32 of Ruijssenaars and Others), the second the objectives of that regulation (paragraph 33 of Ruijssenaars and Others), and the third the allocation of the roles attributed, respectively, to the national bodies and the national courts (paragraph 35 of Ruijssenaars and Others). (2 2) That reasoning led the Court to conclude that the EU legislature did not impose on Member States the obligation to confer on their national bodies the power to take enforcement action against air carriers in order to secure payment of the compensation due to passengers. The Court held that such an interpretation made it possible to avoid any occurrence of different assessments that are detrimental to the rights of air passengers between, on the one hand, the national bodies responsible for handling individual complaints and, on the other, the national courts adjudicating on individual actions seeking compensation under Article 7 of Regulation No 261/2004 (paragraph 34 of Ruijssenaars and Others).
30. However, as a second step in its reasoning, the Court added an obiter dictum, as follows:
‘For that reason, in view of those objectives and the discretion enjoyed by Member States in the allocation of the powers with which they intend to endow the bodies referred to in Article 16(1) of Regulation No 261/2004, … it is open to Member States, in order to remedy inadequate protection for
air passengers, to empower the body referred to in Article 16(1) of the regulation to adopt measures in response to individual complaints.’ (2 3)
31. That paragraph must be understood as reflecting the Court’s finding that Member States may allocate to their national bodies responsible for enforcing Regulation No 261/2004 a power to impose orders in the context of the task conferred on them by Article 16 thereof.
32. In the present dispute, while LOT relies on the first step of the Court’s reasoning in Ruijssenaars and Others in order to challenge the allocation of such a power to the Consumer Protection Inspectorate, the latter relies on the second step of that reasoning to assert the power thus conferred on it by national legislation. The Court is therefore asked to clarify the scope of that obiter dictum. For the purposes of that clarification, I propose that the Court take into account, in accordance with its settled case-law, not only the wording of Article 16 of Regulation No 261/2004, but also the scheme and objectives of that regulation, whilst having regard to the principles previously identified by the Court in its case-law.
33. That clarification is essential as the practical consequences flowing from the powers enjoyed by national bodies are far reaching, particularly for the thousands of passengers affected each year by the cancellation or long delay of their flights. Such clarification will also make it possible to respond to the demands from the Commission, which has repeatedly highlighted the difficulties in enforcing Regulation No 261/2004 because of the absence of a uniform interpretation and of consistent, detailed rules for the application of that regulation at national level, and has stated that the regulation should be improved to ensure that there are clear and accessible mechanisms for handling complaints. (24)
1. The wording of Article 16 of Regulation No 261/2004
34. In Article 16 of Regulation No 261/2004, the EU legislature lays down the rules applying in the event of ‘infringements’ of the provisions of that regulation.
35. In the first place, Article 16(1) of the regulation requires Member States to 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, which is to be responsible, where appropriate, for taking the measures necessary to ensure that the rights of passengers are respected. Although the legislature clearly defines the extent of the territorial jurisdiction of that body, I note that it does not specify either the conditions or the manner in which the latter is to perform its tasks and ‘ensure that the rights of passengers are respected’. (25) Furthermore, I observe that the expression ‘ensure that the rights of passengers are respected’ is clearly broad in scope. It covers the protection of both the collective and individual interests of air passengers. Recital 22 of Regulation No 261/2004, which sets out the considerations on which the EU legislature relied in adopting Article 16(1) of that regulation, does not provide any further clarification in that regard.
36. In those circumstances, it must be accepted that under Article 16(1) of that regulation, Member States enjoy discretion as to the powers with which they intend to endow their national bodies for the purpose of protecting passengers’ rights, to which the Court moreover expressly referred in paragraph 36 of Ruijssenaars and Others.
37. Since Article 5(1)(c) of Regulation No 261/2004 confers on air passengers the right to compensation in the event of cancellation of their flight, there is nothing, in my view, to prevent a Member State from endowing its national body with the power to order an air carrier to pay the compensation due in order to ensure that that right is respected. Failure to respect that right constitutes not only a breach of the contractual obligations of air carriers, but also a failure to apply that regulation properly.
38. As regards, in the second place, the provisions set out in Article 16(2) and (3) of Regulation No 261/2004, my view is that they have neither the object nor the effect of restricting the scope of the powers which Member States may confer on their national bodies.
39. I note that, under Article 16(2) of that regulation, ‘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 [that] 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’.
40. It follows from both Ruijssenaars and Others, concerning the interpretation of Regulation No 261/2004, and Irish Ferries, concerning the interpretation of Regulation No 1177/2010, that the ‘complaint’ referred to in Article 16(2) of Regulation No 261/2004 differs, by its nature and scope, from an individual claim made by a passenger seeking the compensation due to him or her on account of the cancellation of a transport service. According to the Court, that complaint amounts to a report by the passenger intended to draw the competent body’s attention to the alleged infringement of an obligation on carriers with a view to contributing to the proper application of the regulations at issue in general. The Court made clear, in Ruijssenaars and Others, that such a complaint does not require ‘[the national body] to act … in order to guarantee each individual passenger’s right to obtain compensation’ (26) and stated, in Irish Ferries, that the carrier ‘has a certain discretion as to the action to be taken in response to that report’. (27)
41. I also note that, under Article 16(3) of Regulation No 261/2004, ‘the sanctions laid down by Member States for infringements of this Regulation shall be effective, proportionate and dissuasive’. Those sanctions are clearly different, in their nature and scope, from the enforcement action by which the national body seeks to secure payment of the compensation due to an air passenger on account of the cancellation of his or her flight, which is a fixed sum. In Ruijssenaars and Others, the Court thus held that the ‘sanctions’ to which the EU legislature refers in that article are the measures that the national body adopts in response to the infringements which it identifies in the performance of its general monitoring task, ‘not … administrative enforcement action to be taken in each individual case’. (28)
42. Since, as the Court has found, the provisions set out in Article 16(2) and (3) of Regulation No 261/2004 specifically identify ‘the various aspects of the task entrusted to the body referred to in Article 16(1)’, (2 9) they cannot therefore be interpreted as precluding the possibility of conferring on the national body powers other than those relating to the handling of reports brought to its attention and the imposition of sanctions.
43. In the absence of rules established by EU law, Member States therefore enjoy discretion as regards the allocation to that national body of powers intended to ensure that the rights of air passengers are respected. Against that background, and in the light of the wording used in Article 16 of Regulation No 261/2004, there is nothing to prevent a Member State from conferring on that body the power to order an air carrier to pay the compensation due to a passenger, in accordance with Articles 5 and 7 of that regulation.
44. That interpretation is also, to my mind, supported by both the scheme and the objectives of that regulation.
2. The scheme and objectives of Regulation No 261/2004
45. The scope of the tasks entrusted to the national body must also be assessed in the light of the nature of the compensation provided for in Article 7 of Regulation No 261/2004 and the objectives pursued by the EU legislature.
46. That compensation was described by the Court in its judgment of 29 July 2019, Rusu, as being
fixed, standardised and immediate. (3 0)
In the words of the Court in Irish Ferries, it is a ‘pecuniary
claim … and [the] passenger may request payment of that claim from the carrier on the sole ground that the conditions laid down in [Article 19 of Regulation No 1177/2010] are satisfied’. (31) If the cancellation of the flight is not caused by extraordinary circumstances within the meaning of Article 5(3) of Regulation No 261/2004, the amount of compensation is fixed in accordance with the scales set out in Article 7(1) and (2) of that regulation. Air passengers will receive compensation in the amount of EUR 250 for all flights of 1 500 km or less (point (a)), EUR 400 for intra-Community flights of more than 1 500 km and for all other flights between 1 500 and 3 500 km (point (b)) and, lastly, EUR 600 for all flights not covered by the preceding points. In addition, the compensation will be reduced by half, subject to certain conditions, if the passenger has been re-routed. The Court has held that ‘such fixed amounts are intended to provide compensation only for the damage that is almost
identical for every passenger concerned’. (3 2)
Accordingly, both passengers and air carriers can
identify the amount of compensation due, since that amount is not assessed on a case-by-case basis in the light of the individual circumstances of each passenger, but depends solely on the distance and
destination of the flight concerned. (3 3)
In those circumstances, except where the right to
compensation is disputed under Article 5(3) of Regulation No 261/2004 and requires legal assessments as to the existence, for example, of ‘extraordinary circumstances’, the national body seems to me to be quite capable of assessing the merits of the claim and, where appropriate, the amount thereof for the purposes of taking enforcement action.