47. Furthermore, such an allocation of powers seems to me to contribute to the objectives pursued by the EU legislature in the context of Regulation No 261/2004. In accordance with recitals 1, 2, 4 and 12 of that regulation, the regulation seeks to ensure a high level of protection for air passengers whose flight cancellation has caused them serious trouble and inconvenience. (34) The Court has repeatedly held that the amounts set by Article 7(1) of Regulation No 261/2004 are intended to compensate, in a standardised and immediate manner, for the damage that is constituted by such inconvenience, ‘without the passengers having to suffer the inconvenience inherent in the bringing of actions for damages
before the courts having jurisdiction.’ (3 5)
In Irish Ferries, the Court added that the compensation
worded in identical terms in Article 19 of Regulation No 1177/2010 is ‘in [itself] capable of remedying immediately some of the inconvenience suffered by passengers in the event of cancellation of a service and thus [makes] it possible to ensure a high level of protection for passengers, sought by that regulation’. (36)
48. A measure like that provided for in the national legislation at issue seems to me to contribute to the simplicity, speed and effectiveness of the compensation procedure, by avoiding the situation whereby the air passenger concerned is required to bring an action before the courts with jurisdiction in order to claim payment of the compensation due to him or her, which is liable to involve longer and sometimes more complex procedures. My view is that such a measure ensures a high level of protection for air passengers while, at the same time, preventing the courts from being clogged up by the extremely high number of claims for compensation.
49. In addition, it should be noted that conferring such a power on the national body does not deprive either passengers or air carriers of the possibility of bringing proceedings before the national
court with jurisdiction under procedures of national law. (3 7)
Passengers may bring an action before
the court with jurisdiction in order to claim payment of the compensation provided for in Article 7 of Regulation No 261/2004 and, in the same way, air carriers must be able to challenge the justification for the compensation claimed from them.
50. I note that, in its judgment of 22 November 2012, Cuadrench Moré, (3 8) the Court held that, ‘when a flight is cancelled and provided that the cancellation is not caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, Articles 5 and 7 of Regulation No 261/2004 afford passengers a right to compensation according to the distance and destination of the flight concerned, a right which those passengers may rely on, if necessary, before the national courts’. (3 9) The Court added that ‘in the absence of provisions of EU law on the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, provided that those rules observe the principles of equivalence and effectiveness’. (4 0)
51. It is true that, in paragraph 34 of Ruijssenaars and Others, the Court drew attention to the risk of divergence, in the assessment of the same individual situation, between the national body and the national court. There is, moreover, another risk related to the simultaneous submission of two claims seeking payment of the compensation due, one before the national body and the other before the national court. I think, however, that Member States can mitigate that risk by adopting procedural measures ensuring coordination between the administrative and judicial procedures. In the absence of EU rules governing the matter and having regard to the discretion enjoyed by Member States as to the powers with which they intend to endow their national bodies, it is for the domestic legal system of each Member State to lay down those detailed procedural rules.
52. In the instant case, I note that there is nothing in the order for reference or in the observations lodged by the Hungarian Government to suggest that the conferral of such a power on the Consumer Protection Inspectorate could undermine the rights of passengers and air carriers to bring an action before the courts or could give rise to a risk of divergence between that inspectorate and the courts in the context of the assessment of the same individual situation.
53. In the light of all the foregoing, I therefore propose that the Court rule that Article 16(1) of Regulation No 261/2004 must be interpreted as not precluding national legislation under which a Member State confers on 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, as provided for in Article 7 of that regulation, provided that that legislation does not deprive that passenger or that carrier of the possibility of bringing proceedings before the national court with jurisdiction in order to claim payment of that compensation or to challenge the justification for that compensation. It is for the Member State, within the framework of its procedural autonomy, to lay down detailed rules ensuring that procedures before the national body responsible for enforcing that regulation and before the national court having jurisdiction are coordinated.
3. Final remark
54. Before concluding my analysis, I think it of interest to point out that, as EU law currently stands, the Member States exercise the discretion afforded to them under Article 16 of Regulation No 261/2004.
55. As demonstrated by a comparative analysis of the different national laws, (4 1)
the Member
States involve in that procedure not only their national bodies and the national courts, but also consumer protection bodies and bodies with powers in the field of alternative dispute resolution for consumer disputes (42) and the settlement of small claims.
56. Some Member States have chosen to designate their national civil aviation authority as the national body responsible for enforcing Regulation No 261/2004, (43) while others have preferred to entrust that task to their national consumer protection authority, which may then be responsible for ensuring enforcement of the regulations on the rights of air passengers as well as of passengers travelling by rail, sea or land. (44) Similarly, some Member States have entrusted their national body responsible for enforcing that regulation with the task of ensuring that it is properly applied in the general interest of passengers, which may include supervisory tasks (by means of, for example, on-the- spot inspections or audits), monitoring tasks (monitoring information published or communicated by the air carrier to passengers in order to correct wrong, misleading or incomplete information), the drawing up of activity reports, exchanges of information, and cross-border cooperation with other national bodies. Some Member States allow those bodies to examine and handle individual complaints from passengers so as to safeguard their right to compensation, or empower them to conduct alternative dispute resolution procedures. (45)
57. Lastly, I would like to point out that the discretion granted to Member States for the protection of air passengers’ rights is also afforded to them in the regulations on the protection of the rights of disabled air passengers and passengers travelling by rail, by sea or by bus and coach. Those regulations lay down a typology of comparable rights (rights to information, reimbursement, re-routing, care while waiting prior to travel and compensation under certain conditions). Regardless of the mode of transport involved, the EU legislature requires Member States to designate ‘a body or bodies’ responsible for enforcing the regulation concerned and adopting the measures necessary to ensure that the rights of
passengers are respected. (4 6)
The EU legislature establishes that requirement in almost identical
terms (47) and none of the legislative instruments adopted recently reveals any intention on its part to regulate the nature of the powers conferred on the national body more strictly or to limit their scope. On the contrary, in the context of Regulation No 2021/782, which is the most recent and most precise instrument for protecting passengers’ rights, the EU legislature also allows the national body to act as an alternative dispute resolution body for consumer disputes in accordance with Directive 2013/11. (48)
58. In the light of the foregoing considerations, I propose that the Court give the following answer to the question submitted by the Fővárosi Törvényszék (Budapest High Court, Hungary):
Article 16(1) of 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 must be interpreted as not precluding national legislation under which a Member State confers on 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, as provided for in Article 7 of that regulation, provided that such legislation does not deprive that passenger or that carrier of the possibility of bringing proceedings before the national court with jurisdiction in order to claim payment of that compensation or to challenge the justification for that compensation. It is for the Member State, within the framework of its procedural autonomy, to lay down detailed rules ensuring that procedures before the national body responsible for enforcing that regulation and before the national court having jurisdiction are coordinated.
1 Original language: French.
2Regulation 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 (OJ 2004 L 46, p. 1).
3 C‑145/15 and C‑146/15, EU:C:2016:187; ‘Ruijssenaars and Others’.
4 Magyar Közlöny 1997/119; ‘the Law on Consumer Protection’.
5 Regulation of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ 2017 L 345, p. 1).
6 ‘LOT’.
7 ‘Consumer Protection Inspectorate’.
8 The concept of ‘competent authority’ is defined in Article 3(6) of Regulation 2017/2394.
9 Commission Notice – Interpretative Guidelines on Regulation (EC) No 261/2004 of the European Parliament and of the Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and on Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council (OJ 2016 C 214, p. 5).
10 0 Regulation of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ 2004 L 364, p. 1). I note that that was repealed by Regulation 2017/2394.
11 1 Section 7.3 of that notice. Emphasis added.
12 2 See, by way of illustration, judgment of 28 July 2016, Verein für Konsumenteninformation (C‑191/15, EU:C:2016:612, paragraph 45).
13 3 See the definition of ‘intérêt’ (‘interest’) in Littré, E., Dictionnaire de la langue française, Paris,
L. Hachette, 1873-1874, which contrasts ‘the individual, private or personal interest, the advantage of a person’ with ‘the public interest, the advantage of the State, of society’ (free translation). Also see the definition of that concept in Lalande, A., Vocabulaire technique et critique de la philosophie, Presses universitaires de France, Paris, 1997, 4th edition, p. 531, according to which the collective interest is not the sum of the individual interests of the members of a sector or group, for example, but refers to the interests of a group of individuals (which cannot be considered indivisibly) because it forms a whole. That concept is used in certain specific sectors and, in particular, in the context of the protection of a collective body, of a profession or of consumers by consumer associations.