The background to the complaint

1. This complaint concerns the publication on the European Commission's website[1] of the document entitled 'Preliminary list of extraordinary circumstances following the National Enforcement Bodies’  meeting held on 12 April 2013' (hereinafter, 'the NEB list') The complaint was brought by a firm of solicitors that specialises in obtaining compensation for air passengers under Regulation 261/2004[2] ('the Passenger Rights Regulation'). Article 5 of the Passenger Rights Regulation provides that air passengers have the right to receive compensation where their flights are cancelled. However, Article 5(3) provides that an air carrier is not obliged to pay compensation 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. The Passenger Rights Regulation requires Member States to designate National Enforcement Bodies (NEBs).

2. In July and August 2013, the complainant contacted the Commission and argued that the NEB list did not accurately advise passengers about their rights. The complainant pointed out that airlines had already relied on this document in court, winning cases that they would previously have lost. It therefore asked the Commission to remove the document from its website.

3. In its replies, the Commission argued that the NEB list clearly stated that the document was published following a meeting of the NEBs. The Commission submitted that the NEB list was preliminary, non-exhaustive and non-binding and that the nature and origin of the document were clearly stated on its first page.

4. On 20 August 2013, the complainant lodged this complaint with the European Ombudsman.

The inquiry

5. The Ombudsman opened an inquiry into the complaint and identified the following allegation and claim:

1) The Commission failed to comply with principles of good administration and have due regard to the public interest when it published the NEB list on 'extraordinary circumstances' on its website.

2) The Commission should remove the NEB list on 'extraordinary circumstances' from its website.

6. In the letter opening the inquiry, the Ombudsman informed the Commission that, in the event that the Commission were to decide not to remove the relevant document from its website, it might wish to consider taking appropriate action to avoid the risk of misinterpretation of the document by the interested public.

Allegation that the Commission failed to comply with principles of good administration and have due regard to the public interest when it published the NEB list on 'extraordinary circumstances' on its website and the related claim

The Ombudsman's friendly solution proposal

7. On 15 April 2014, the Ombudsman made a proposal for a friendly solution. When carrying out the preliminary analysis of the complaint and proposing the friendly solution, the Ombudsman took into account the arguments and opinions put forward by the parties[3].

8. In her analysis of the case, the Ombudsman noted that the NEB list may gain added credibility and authority due to its publication on the Commission's website. This would be problematic only if the NEB list were found (i) to be misleading for consumers or (ii) not to properly reflect the contents of the relevant parts of the Passenger Rights Regulation.

9. As regards point (i), the Ombudsman considered that the manner in which the NEB list was originally published did indeed give rise to questions as to the true nature and origin of the document. In this context, the Ombudsman therefore applauded that, in its response to the complaint, the Commission had taken these doubts into account and had decided to change the way in which the NEB list was published on its website. The Ombudsman stated that, as a result, anyone who consults the NEB list on the relevant website is clearly informed that the document was published at the request of NEBs, that it has neither been adopted nor approved by the Commission and that it is published for information purposes only. The Ombudsman considered that the changes made by the Commission considerably reduce the risk of misunderstandings by the public.

10. This statement notwithstanding, the Ombudsman examined the complainant's argument that NEBs and airlines do not provide passengers with the version of the document containing the Commission's disclaimer but continue to use the previous version; as a result, passengers are unaware of the disclaimer which the Commission has made on the front page of the revised version of the NEB list. To address this concern, the Ombudsman stated, in paragraph 27 of the proposal, that, although it is not the Commission's fault that NEBs or airlines may still use the old version of the text, it was the Commission that published the document in its original form and thus made it possible for it to be used in that form by interested parties. Against this background, the Ombudsman took the view that, in order to rule out any possible misunderstandings about the origin, nature and significance of the document, the Commission should contact the NEBs in order to ensure that they are aware of its disclaimer.

11. Moreover, it was clear from the Commission's opinion that not all NEBs supported the publication of the document on the Commission's website. The Ombudsman pointed out in paragraph 28 of the proposal that this fact is not reflected in the first page of the document, which indicates that the document was published at the request of 'the NEBs'. The Ombudsman reasoned that this creates the impression that all NEBs support both the content of the list and its publication on the Commission's website. The Ombudsman proposed that, unless this is indeed the case, the relevant statement be reconsidered.

12. As regards point (ii), the Ombudsman remarked that good administrative practice requires that the Commission ensure that the NEB list is compatible with the Passengers Rights Regulation. It would therefore be difficult to accept that the Commission could publish a document drawn up by national authorities 'for information and guidance' purposes if the positions adopted in that document were not in conformity with EU law.

13. The Ombudsman summarised the judgment in the Wallentin[4] case, which is the main authority for guidance on 'extraordinary circumstances'[5], and pointed out that, in its observations, the complainant specified which technical faults, although included in the NEB list, did not constitute extraordinary circumstances.

14. The Ombudsman considered that it would be in the interest of EU citizens and procedural efficiency that the Commission comment on the complainant's more detailed arguments. To this end, the Ombudsman asked the Commission in paragraph 34 of her proposal to address the complainant's comments and to clarify the relationship between the Annex to its proposal for a revision of the Passenger Rights Regulation (PRR revision proposal) and the NEB list. More specifically, the Ombudsman asked the Commission to clarify the issue that the Commission's PRR revision proposal provides that technical problems identified during the pre-flight check shall not be considered extraordinary while in the NEB list (items 22, 25 and 26), technical problems which become apparent immediately prior to departure are likely to constitute extraordinary circumstances.

15. The Ombudsman's proposal for a friendly solution was phrased as follows:

"Taking into account the Ombudsman’s findings, more specifically, paragraphs 27 and 28 of her proposal for a friendly solution, the Commission could take further steps to rule out any misunderstandings about the source, nature and significance of the NEB list.

In the interest of procedural efficiency, the Ombudsman invites the Commission to address the complainant's arguments in its observations as regards the compatibility with the Passenger Rights Regulation of certain circumstances that are presented as extraordinary circumstances in the NEB list. In addition, taking into account the Ombudsman's analysis in paragraph 34 of her proposal for a friendly solution, the Commission could clarify the compatibility of its proposal for the revision of the Passenger Rights Regulation with the NEB list."

16. In its reply to the proposal, the Commission specified, in relation to the Ombudsman's suggestions in paragraph 27 of the proposal, that the NEBs were already informed (by e-mail of 22 November 2013) about the version of the NEB list containing the Commission's disclaimer once it was re-published on the Commission's website. However, the Commission undertook to write to the NEBs again to insist that they do not use the old version of the document.

17. As regards the Ombudsman's suggestion in paragraph 28 of the proposal, the Commission stated that one NEB disagreed with the publication of the list and some NEBs did not express their views on this issue. Therefore, in view of the Ombudsman's proposal, the Commission amended the disclaimer as follows: "This document has been published at the request of the NEBs. This document is for information and guidance for the work of the NEBs. The content of the document does not necessarily reflect the position of all NEBs. The content of this document has not been adopted or in any way approved by the European Commission and should not be relied upon as a statement of the European Commission's position".

18. As regards the Ombudsman's suggestion in paragraph 34 of the proposal, the Commission noted that the current regulation does not contain a definition of 'extraordinary circumstances' or an exhaustive list of events that could be considered to constitute extraordinary circumstances. Recital 14 presents only some examples of such events: "… Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier". The Commission referred to the CJEU's judgment in Wallentin, where the Court ruled that technical problems may not constitute 'extraordinary circumstances' that would allow airlines to avoid paying passengers compensation for delayed or cancelled flights, unless such problems stem from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.

19. The Commission put forward that the work of the NEBs took into account the relevant recital and provisions of the Regulation, and the Court's interpretation. As a result, the Commission contended that the NEB list specifies what might or might not qualify as 'extraordinary circumstances' and contains a series of guidance notes that may assist NEBs in undertaking the necessary evaluation of each specific case.

20. Moreover, in response to the Ombudsman's request in paragraph 34 of the proposal to clarify the relationship of its PRR revision proposal with the NEB list, the Commission noted that the NEB list and the accompanying guidance notes seek to improve the implementation of the existing Regulation across the Union while the Annex to the PRR revision proposal refers to a future Regulation.

21. More specifically, the Commission stated that although the ruling in Wallentin specifies that technical problems which come to light during maintenance of aircraft or on account of failure to carry out such maintenance cannot constitute, in themselves, 'extraordinary circumstances', the ruling does not lift the legal uncertainty in respect of defects discovered outside maintenance. In particular, the general criterion 'inherent in the normal operation of the aircraft' leaves some room for interpretation in specific situations, such as events taking place immediately prior to departure, which the Wallentin judgment could not have addressed because it concerned a defect that was discovered long before departure.

22. The Commission argued that, in the PRR proposal, it followed the approach in Wallentin but also proposed to tackle the remaining grey area. In particular, the Commission proposed that technical problems identified during routine maintenance or during the pre-flight check of the aircraft should not be considered extraordinary. In addition, it clarified that such defects discovered during the flight operation, that is after the aircraft leaves its parking stand, would be considered extraordinary. The Commission further argued that, in order to tackle the legal grey area, it proposed that defects discovered during regular maintenance, including the pre-flight checks performed by ground engineers and flight crew up to the departure from the parking stand, would be considered non-extraordinary. The Commission added that its PRR revision proposal aims to fill a legal gap for the future Regulation and to remove an unclear situation where NEBs and national courts may have taken inconsistent approaches under the current legal framework. Moreover, the NEB list does not define the term "departure", thus giving rise to uncertainty regarding the period between the moment when the aircraft leaves the parking stand and actual take-off. In view of this, the Commission argued that it is therefore possible that differences between the Commission proposal and the NEB list exist as shown by items 22, 25 and 26 of the NEB list.

23. In its observations, the complainant expressed its dissatisfaction with the Commission's reply. The complainant argued that the answer given does not address the concerns set out in the complaint and seems to focus on the potential revision to the Regulation which, in the complainant's view, is not relevant to the issues under review.

The Ombudsman's assessment after the proposal for a friendly solution

24. The complainant contends that some of the events referred to as 'extraordinary circumstances' on the NEB list are incompatible with the Passenger Rights Regulation, the CJEU's case-law and the way in which the Passenger Rights Regulation has been applied by national courts. Because the publication of the NEB list on the Commission's website has given it more credibility, the complainant argued that NEBs, airlines and national courts take (or might take) the NEB list into account and deny passengers compensation. In order to remedy the situation, the Commission should remove the NEB list from its website.

25. The Ombudsman considers that transparency in the work of public bodies is an inherent feature of good governance. In this context, the EU institutions should, within the broad scope of their activities, strive to ensure that information that may be of relevance and interest to citizens is disseminated as widely as possible. From this perspective, the publication on the Commission's website of the NEB list on extraordinary circumstances is  in line with good governance and in the public interest. It is however uncontested that information concerning air passenger rights that is made available by a public body should be as clear and as accurate as possible.

26. In this regard, the Ombudsman already emphasised in her proposal for a friendly solution that the publication of the NEB list on the Commission's website would be problematic if the NEB list (i) were found to be misleading for consumers as to its true origin and nature or (ii) did not properly reflect the contents of the relevant parts of the Passenger Rights Regulation. To this end, the Ombudsman included specific recommendations in her proposal to the Commission.

27. Regarding point (i), the Ombudsman is pleased to note that the Commission responded in a positive way and added a disclaimer in order to ensure that it is clear to any interested party that the NEB list is a draft that does not enjoy the support of all the NEBs and that it has not been endorsed by the Commission.

28. Regarding point (ii), the Commission provided an outline of the applicable rules as interpreted by the CJEU. In doing so, the Commission clearly explained that, where an event falls within the concept of 'extraordinary circumstances', there are additional conditions that need to be met for an airline to avoid paying compensation under the Passengers Rights Regulation. The Ombudsman takes the view that, in its reply, the Commission provided sufficient explanations to support its view that the NEB list properly reflects the contents of the Passenger Rights Regulation as interpreted by the CJEU. Importantly, the Commission's analysis in response to the Ombudsman's invitation to clarify the relationship between the PRR revision proposal and the NEB list helps further to clarify the Commission's position on the applicable law as well as its future development.  

29. The Ombudsman notes that the complainant is dissatisfied with the Commission's reply and argues that that reply does not address its concerns. From a formal perspective, therefore, the Ombudsman considers that her efforts to find a friendly solution have not been successful in this case. A careful examination of the information on file, however, leads to the conclusion that the Commission's clarifications adequately address the two points identified in the Ombudsman's proposal for a friendly solution. In light of these considerations, the Ombudsman finds no wrongdoing on the Commission's part in relation to the complainant's allegation and she, therefore, closes the case with a finding that there is no maladministration.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There is no maladministration by the Commission in relation to the complainant's allegation.

The complainant and the Commission will be informed of this decision.

 

Emily O'Reilly

Strasbourg, 19 November 2014