Made in accordance with Article 3(6) of the Statute of the European Ombudsman[1]

The case concerns the Commission's handling of an infringement complaint related to air passenger rights. The complainant's travel plans were upset when his flight from London to Sofia was cancelled because of snow and he was then re-routed via Munich. However, his arrival in Munich was too late to catch his connecting flight and he had to spend the night there without being offered a hotel room. The complainant reached his final destination one day later than scheduled. After having contacted the authorities in both the UK and Germany, he submitted an infringement complaint to the Commission, alleging that the UK authorities were acting against the relevant EU rules on air passenger rights.

The Commission argued that the relevant problems were caused by 'extraordinary circumstances', which meant that, in line with the relevant EU Regulation, the complainant was not entitled to compensation. However, this did not affect his right to care and he could therefore submit receipts, if any, to the national enforcement body. The Commission argued that no breach of the relevant rules had occurred and that it would, accordingly, discontinue correspondence with him on the matter.

The Ombudsman accepted that the Commission's position as regards the existence of 'extraordinary circumstances' related to the snowfall was reasonable. Concerning the complainant's right to care, the Ombudsman took the view that the relevant rules leave no doubt that it is for the carrier to take the initiative to offer hotel accommodation and related services to passengers in cases of significant delays. Given that the complainant was not provided with hotel accommodation, the Ombudsman found the Commission's view, that there was no infringement of the duty of care, unconvincing. She also concluded that it was possible that the Commission would adopt the same view in similar cases. The Ombudsman thus made a draft recommendation to the Commission to the effect that it deal properly with infringement cases concerning the Regulation and ensure its proper and effective enforcement.

As regards the Commission's decision to discontinue correspondence with the complainant, the Ombudsman did not accept the Commission's view that his correspondence could be considered to be "improper". She thus issued a further draft recommendation to the Commission in this respect.

The background to the complaint

1. The case relates to the European Commission's handling of an infringement complaint concerning air passenger rights.

2. The complainant is a UK citizen. On 7 June 2012, he submitted an infringement complaint to the Commission. In this complaint, he argued that the United Kingdom infringed Regulation No 261/2004[2] on air passenger rights.

3. The complainant described the following sequence of events. On 1 December 2010, he arrived at Heathrow airport in London early in the morning with a view to taking a plane to Sofia (Bulgaria). It turned out that his flight to Sofia, along with many other flights from Heathrow airport, had been cancelled. The complainant asked the carrier to be given a hotel room, but his request was rejected, because he was not a transit passenger. Instead, he was re-routed to Sofia via Munich and given a refreshment voucher. The plane to Munich departed late, and when he arrived there, it turned out that his connecting flight to Sofia had been cancelled. After queuing for four hours, he was finally re-routed to another flight departing from Munich to Sofia the following morning (2 December 2010). He was offered some food and refreshments but he did not get a hotel room, so he had to sleep on the airport floor. He finally arrived in Sofia later on the same day.

4. On 2 February 2011, the complainant sent a letter to his carrier and asked for an apology and a statement that measures had been taken since those events took place. He also asked for meaningful and appropriate compensation. In its reply, the carrier apologised to him but stated that it was unable to give him any compensation.

5. On 3 May 2011, the complainant sent a letter to the UK Civil Aviation Authority (hereinafter referred to as the 'CAA') and asked it to investigate his case. In its subsequent reply, the CAA referred to "extraordinary weather conditions" at Heathrow airport on the day of the complainant's scheduled flight to Sofia. The CAA added that it was not in a position to decide when airlines are justified to use the 'extraordinary circumstances' clause provided for in Regulation 261/2004[3] and asked the complainant to submit receipts of any additional expenses incurred due to the cancellation of his flight. The CAA would then forward the receipts to the carrier. As regards the complainant's stay at Munich airport, the CAA informed him that the national enforcement body in Germany was competent to deal with that part of his grievance, which is why it referred his case to the German authorities in that regard.

6. In his reply to the CAA, the complainant rejected the view that extraordinary circumstances played a role in his case because (i) a number of other flights were able to depart from the same terminal on the same day, and (ii) the fact that there was snow in the UK at that time of the year was nothing extraordinary as such. He therefore took the view that the actual reason for the cancellation of his flight was merely operational and asked the CAA to contact his carrier and order it to pay him compensation. On 5 August 2011, the CAA informed the complainant that as far as his case concerned issues relating to the events that took place at Munich airport, it had transferred the relevant documents to the competent German authorities, because it appeared that his grievances might concern the application of Regulation 261/2004.

7. In its reply to the CAA, the complainant's carrier referred to the exceptional weather conditions at Heathrow airport at the relevant time and argued as follows:

"Article 5.3 of the EU Regulation 261/2004 states that a carrier is not obliged to pay compensation if it can prove that the cancellation is caused by extraordinary circumstances that could not have been avoided even if all reasonable measures had been taken. In Recital 14 and 15 of EU Regulation 261/2004, extraordinary circumstances include unexpected safety shortcomings, weather, strike and the impact of an air traffic management decision which gives rise to a long delay. I regret, therefore [the complainant] is not entitled to compensation under the EU Regulation for his cancelled flight."

The carrier also sent a further e-mail to the German authorities, in which it stated the following:

"Having fully reviewed the situation, I can confirm that our position hasn't changed and we maintain that [the complainant] is not eligible for compensation in this instance. By virtue of article 5(3) of Regulation (EC) 261/2004, [the carrier] is not obliged to pay compensation due to the cancellation being caused by extraordinary circumstances."

8. Finally, the CAA closed the complainant's file and suggested that he turn to a local court, should he wish to pursue the matter.

9. On 12 December 2011, the complainant filed a report with the German Luftfahrt–Bundesamt (hereinafter referred to as the 'LBA'). The LBA first replied to him on 28 December 2011, stating that an infringement of Regulation 261/2004 was a possibility in his case. However, since the issue was not within its territorial competence, it referred his case back to the CAA. On 9 January 2012, the complainant sent a further letter to the LBA. In reply, the LBA maintained that it is not within its competence to enforce his claims.

10. On 28 June 2012, the Commission replied to the complainant's infringement complaint. It first referred to the relevant provisions of Regulation 261/2004, according to which care has to be provided when passengers are stranded due to flight delay or cancellation, including at a connecting airport. Should the complainant have incurred any relevant costs, the Commission advised him to contact the competent national enforcement body (hereinafter referred to as the 'NEB'). It further informed the complainant that, according to Regulation 261/2004, passengers are not entitled to compensation if the carrier can prove that the reason for the delay was caused by extraordinary circumstances. The Commission then stated that it had carefully examined his file but came to the conclusion that no breach of Regulation 261/2004 had occurred. Finally, it advised the complainant to make use of the European Small Claims Procedure[4] or to contact the Network of European Consumer Centres.

11. Having received the Commission's reply, the complainant sent two further e-mails to the Commission's Secretariat–General in which he challenged the Commission's position. In reply, he was informed that the Commission would not change its position. The Commission also considered the complainant's further correspondence repetitive and thus informed him that it would no longer reply to his messages concerning these issues.

12. On 18 October 2012, the complainant turned to the European Ombudsman.

The inquiry

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

Allegation

The Commission failed properly to deal with the complainant's infringement complaint.

Claim

The Commission should properly deal with the complainant's infringement complaint.

14. In the course of the inquiry, the Ombudsman received the opinion of the Commission on the complaint and, subsequently, the comments of the complainant in response to the Commission's opinion. In addition to the allegation and claim identified above, the Ombudsman invited the Commission to comment on whether it considered it to be useful to have advised the complainant to turn to the competent NEB, given that the CAA was unhelpful and that the LBA declared that it was not competent to handle the matter.

15. The Ombudsman's draft recommendations take into account the arguments and opinions put forward by the parties.

Allegation that the Commission failed properly to deal with the complainant's infringement complaint and related claim

Arguments presented to the Ombudsman

16. The complainant alleged that the Commission failed properly to deal with his infringement complaint. In support of that view, he argued that the Commission: (i) did not take into account that the weather conditions were not extraordinary; (ii) did not take into account that he was not given sufficient assistance when it turned out that he had to spend a night at Munich airport, and that, in particular, he was not offered a hotel room for that night; and (iii) wrongly and disrespectfully decided to discontinue correspondence with him on the matter. He claimed that the Commission should deal properly with his infringement complaint.

17. In its opinion, the Commission rejected the complainant's view that it failed to deal properly with his infringement complaint. The Commission referred to the exchange of correspondence between the complainant and the CAA, which, in the Commission's view, showed that the latter handled the case correctly. The Commission also put forward that the CAA gave useful advice to the complainant, namely, by informing him about the further steps he could take, should he wish to pursue the matter.

18. As regards the complainant's argument that the weather conditions were not extraordinary, the Commission explained that it properly addressed this issue in its reply of 28 June 2012. More specifically, given that the Commission cannot resolve such cases itself, it informed the complainant about his rights under Regulation 261/2004. In particular, the Commission referred to the duty of care that operators have pursuant to that Regulation and the possibility of bringing damage claims concerning such matters before competent national courts.

19. Concerning the complainant's argument about an alleged lack of assistance, the Commission explained that it is first for the airline to prove the existence of extraordinary circumstances, then for the NEB to take appropriate enforcement measures, and then for the passenger to pursue the matter further before a court, if necessary. In this case, the Commission carried out the necessary assessment regarding the complainant's complaint, but came to the conclusion that no violation of the Regulation had occurred. It thus closed the infringement file without any action.

20. As regards the complainant's argument that the Commission wrongly and disrespectfully decided to discontinue correspondence with him on the matter, the Commission took the view that, on the basis of its Code of Good Administrative Behaviour, it has the right to do so when correspondence can reasonably be regarded as improper, for example if it is repetitive. As this was the case here, it had decided to discontinue correspondence with the complainant.

21. As regards the Ombudsman's request to comment on the usefulness of advising the complainant to turn to the competent national enforcement body, given that the CAA was unhelpful and that the LBA declared that it was not competent to handle the matter, the Commission rejected the view that the CAA was unhelpful. As regards the LBA, the Commission became aware of the complainant's contacts with this NEB only when it received his complaint. It further argued that the CAA assessed the complainant's arguments, offered to transfer his receipts, if any, to the carrier, and gave him further information on how to proceed with his claim. Despite these efforts, the carrier refused to compensate the complainant. Given that the attempt to find an amicable solution was unsuccessful, the Commission did not advise the complainant to turn to the CAA anew, but suggested that he seek redress through national courts. The Commission added that, since the CAA had agreed to handle the matter, and did so in an appropriate way, the lack of action from a second NEB was irrelevant.

22. In his observations, the complainant reiterated his earlier view that the circumstances in this case were not extraordinary, given that snowfall as such does not fulfil this criterion. For this reason, he concluded that he should have been entitled to compensation on the basis of Regulation 261/2004. He argued that it is for the airlines to prove the existence of extraordinary circumstances, not the passenger. However, contrary to Regulation 261/2004, the Commission assumed that it is for passengers concerned to turn to a court, which, according to the complainant, does not take into account that the burden of proof is on the airline concerned.

23. As regards the case-law of the ECJ invoked by the Commission, the complainant took the view that it relates to the rights of national courts rather than the concept of extraordinary circumstances. He also pointed out that, for example in the UK, the NEB does not fulfil its duties as set out by Regulation 261/2004, and against this background, the Commission's position was superfluous and arbitrary. Advising a passenger to take an airline to court was clearly wrong, and there is no legal basis for such action in the Regulation.

24. Concerning the existence of extraordinary circumstances in his case, the complainant argued that there was no evidence to prove the existence of extraordinary circumstances. In fact, the snowfall did not cause disruptions at all airports in Europe, only at certain ones. Since the carrier did not prove the existence of extraordinary circumstances, the complainant argued that the Commission has the duty to initiate infringement proceedings. He further regretted that (i) the Commission perceived the issues raised by him as repetitive, abusive and pointless, and (ii) the Commission's statements about the competence of the NEB were in conflict with the rest of its statements. In conclusion, the complainant took the view that his case is but one example of a systemic issue and he is ill-placed to enforce his rights, that is the rights provided for in Regulation 261/2004.

The Ombudsman's assessment leading to a draft recommendation

As regards the Commission's handling of the complainant's infringement complaint

25. Complaints by citizens constitute an essential means for informing the Commission of possible infringements of EU law. They enable the Commission to fulfil its role of guardian of the Treaties effectively. The Ombudsman notes that it is good administrative practice to deal with infringement complaints as diligently as possible. If citizens are unhappy with the way the Commission has dealt with their complaints, they can complain to the Ombudsman about either how the Commission has acted, or how it has failed to act.

26. However, the scope of the Ombudsman's mandate in such cases is limited to examining whether the Commission acted with diligence in relation to the infringement complaint submitted to it. The Ombudsman's inquiries in such cases concern the Commission's conduct and the assessment whether the Commission has given plausible reasons in support of its position. The Commission's duty in this respect is underscored by Article 41 of the Charter of Fundamental Rights of the European Union, which provides for a right to good administration. According to Article 41(2)(c) of the Charter, this right includes "the obligation of the administration to give reasons for its decisions". This duty is also enshrined in Article 18 of the European Code of Good Administrative Behaviour[5]. The issue for the Ombudsman, therefore, is whether the Commission has given plausible reasons in support of its position.

27. According to the complainant, the Commission did not take into account that (i) the weather conditions were not extraordinary and (ii) he was not given sufficient assistance at Munich airport and, in particular, was not offered a hotel room for the night he had to spend there.

28. As regards (i) the Commission's position concerning the existence of extraordinary circumstances in the complainant's case, the Ombudsman notes that the relevant parts of Recital 14 of Regulation 261/2004 read as follows:

"[O]bligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. 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".

29. Pursuant to Article 5(3) of Regulation 261/2004, "[a]n operating air carrier shall not be 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". It follows from the case-law of the ECJ that the notion of 'extraordinary circumstances' refers to an event which is "not inherent in the normal exercise of the activity of the air carrier concerned and is beyond the actual control of that carrier on account of its nature or origin"[6]. For example, technical problems caused by failure to maintain an aircraft do not qualify as 'extraordinary circumstances'[7].

30. In its opinion, the Commission pointed out that "air carriers are not obliged to pay compensation if they can prove that the cancellation or long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances which are beyond the air carrier’s actual control"[8]. Further case-law has confirmed this principle[9], and the complainant did not contradict it. The Ombudsman notes that recent case-law has shed some further light on the issue of compensation in cases where passengers learn, only at the very last moment before their flight or even during their flight, that there will be a long delay. In fact, passengers have the right to compensation also in such cases if they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier[10]. However, passengers are not entitled to compensation if the airline can prove that the delay is caused by "extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier"[11].

31. In the present case, there is disagreement whether the Commission was justified in assuming the existence of extraordinary circumstances.

32. The Ombudsman notes that, according to the Commission, snowfall in late 2010 caused major disruptions at certain airports and it was thus very likely that the snowfall and its consequences caused the problems experienced by the complainant. The Commission moreover argued that the delay of the complainant's first flight because of a snowstorm led to the complainant missing his connecting flight, which, in its view, amounted to extraordinary circumstances. Against the background of the case-law mentioned above, which emphasises that extraordinary circumstances are circumstances beyond a carrier's control, the Ombudsman finds the Commission's position to be reasonable. The Ombudsman furthermore considers the Commission's statement, that it is for NEBs and ultimately for national courts to decide on the existence of extraordinary circumstances in an individual case, to be reasonable and in line with the case-law[12]. In particular, the Ombudsman does not believe that, by giving the complainant this reply, the Commission disregarded the fact that the burden of proof to establish that there were extraordinary circumstances, rests with the carrier.

33. Concerning the usefulness of the Commission's advice to turn to the CAA anew, the Ombudsman observes that the Commission explained that it became aware of the complainant's contacts with the LBA only when it received his present complaint. The Commission also denied that it expressly advised the complainant to turn to the CAA anew. The complainant did not dispute these statements, but questioned the usefulness of the Commission's advice to seek redress though court proceedings. In this respect, the Ombudsman takes the view that the Commission could have been more helpful once it had learned, through the present complaint, that the national bodies considered that they could not assist him. However, given that (i) the complainant did not dispute that he had not drawn the Commission's attention to his contacts with the LBA and (ii) the possibility of initiating court proceedings is referred to in Recital 22 of Regulation 261/2004 and is also considered a valid means of redress by the relevant case-law of the ECJ[13], the Ombudsman concludes that no maladministration can be found regarding this aspect of the case.

34. As regards (ii) the Commission's position concerning the complainant's right to care, the Ombudsman notes that it follows from Articles 6 and 9 of Regulation 261/2004 that passengers stranded at connecting airports have the right to care regardless of whether or not extraordinary circumstances exist. Specifically, Article 9(1) of Regulation 261/2004 provides that airlines must offer passengers the following services free of charge:

(a) meals and refreshments in a reasonable relation to the waiting time;

(b) hotel accommodation in cases where a stay of one or more nights becomes necessary, or where a stay additional to that intended by the passenger becomes necessary; and

(c) transport between the airport and place of accommodation.

35. In this case, the Commission, in its reply of 28 June 2012, informed the complainant that he could send the relevant receipts, if any, to the relevant NEB. It was on this basis that the Commission concluded that no violation of Regulation 261/2004 was at stake. In his observations, the complainant contested the merits and usefulness of such statements, arguing that the airline should have offered him hotel accommodation.

36. The Ombudsman notes that the wording of Article 9(1)[14] of Regulation 261/2004 leaves no doubt that it is for the carrier concerned to take the initiative and to offer assistance to the air passenger who is affected by cancellations or delays. It follows that, leaving it entirely to a passenger stranded at an airport to find accommodation in a country whose language he may not speak, would not be in conformity with Regulation 261/2004. It is true that the complainant was offered some food and refreshments at Munich airport. However, he convincingly put forward that he was not offered hotel accommodation, even though it is not in dispute that a stay of one night became necessary at Munich airport. It follows that the Commission's view that there was no infringement of the duty of care is not convincing. It is clear that the Commission itself cannot deal with the claims of individual citizens that are based on Regulation 261/2004[15]. Nor can the Commission be expected to take action in each and every case in which citizens allege that they have not received sufficient help from NEBs. However, in its role of guardian of the Treaties, the Commission must endeavour to ensure that Member States and their authorities properly apply EU law. In the present case, it appears that the Commission based its decision to close the complainant's infringement complaint on an interpretation of EU law that is not plausible.  This amounts to an instance of maladministration.

37. When the Ombudsman finds an instance of maladministration, she will, where appropriate, make a friendly solution or a draft recommendation to the institution concerned. It is true that the problem at the root of the instance of maladministration took place in 2010. Nevertheless, the fact remains that the Commission's position regarding the complainant's right to care is in an obvious conflict with Regulation 261/2004, and it may be the case that the Commission will adopt the same view in similar cases in the future. Moreover, the Ombudsman also takes into account that the complainant emphasised that his case is but one example of a systemic problem related to the Commission's handling of infringement complaints concerning air passenger rights. Against this background, the Ombudsman finds that, in future cases, when dealing with infringement complaints concerning Regulation 261/2004, the Commission should take proper account of carriers' obligation to provide assistance to air passengers under Article 9 of that Regulation. She therefore makes a corresponding draft recommendation below, in accordance with Article 3(6) of the Statute of the European Ombudsman.

As regards the Commission's decision to discontinue correspondence with the complainant

38. The Ombudsman notes that the Commission's Code of Good Administrative Behaviour[16] enables the Commission to discontinue correspondence that can "reasonably be regarded as improper, for example, because it is repetitive, abusive and/or pointless"[17]. The Ombudsman observes that, in his further correspondence, the complainant reiterated and elaborated on the same points that he had raised earlier, namely, that he was dissatisfied with the Commission's replies and wanted to know whether the case was still open, even though he had been informed about the closure of the case.

39. The Ombudsman takes the view that the fact that a citizen addresses further correspondence to the Commission concerning a decision that it has taken concerning this citizen cannot as such be considered as "improper". The Ombudsman acknowledges that an institution is entitled to consider discontinuing correspondence in cases where a citizen, time and again, submits the very same request or questions, without adducing further facts or arguments. Such a decision should, however, not be taken lightly and certainly only if the repetitive nature of the relevant correspondence is obvious. The Ombudsman furthermore considers it clear that discontinuing correspondence with a citizen is only in conformity with rules of good administration if the institution concerned has already provided the citizen with an adequate answer to his or her requests or questions. As regards the present case, however,  it is clear from the analysis set out above that the Commission's substantive assessment of the complainant's case was incomplete, and thus inadequate, in that it failed properly to address the complainant's argument that the duties flowing from Article 9 of Regulation 261/2004 had been infringed in his case.  In light of these considerations, the Ombudsman does not accept the Commission's view that it was entitled to discontinue corresponding with the complainant on the matter. The Commission's decision to do so thus constitutes a further instance of maladministration, which is best addressed by way of a second draft recommendation below.

40. As regards the second draft recommendation, the Ombudsman would consider it appropriate for the Commission to reconsider its decision to discontinue correspondence with the complainant, in particular, as regards the substantive issue that has given rise to the first draft recommendation. This would also give the Commission the possibility to address the possible risk that, in a case like the present one which concerns more than one Member State, no NEB considers itself competent to take action.

The draft recommendations

On the basis of the inquiry into this complaint, the Ombudsman makes the following draft recommendations to the Commission:

The Commission should, in future cases, when dealing with infringement complaints concerning Regulation 261/2004, take proper account of carriers' obligation to provide assistance to air passengers under Article 9 of that Regulation.

The Commission should decide to discontinue correspondence with a citizen, on account of what it considers to be the repetitive nature of his or her correspondence, only (i) if the repetitive nature of the relevant correspondence is indeed obvious, and (ii) if it has already provided the citizen with an adequate answer to his or her requests or questions.

The Commission and the complainant will be informed of these draft recommendations.  In accordance with Article 3(6) of the Statute of the European Ombudsman, the Commission shall send a detailed opinion by 30 September 2014. The detailed opinion could consist of the acceptance of the draft recommendations and a description of how they have been implemented.

 

Emily O'Reilly

European Ombudsman