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Decision of the European Ombudsman closing the inquiry into complaint 2093/2012/EIS against the European Commission

The case concerned the European Commission's handling of an infringement complaint related to air passenger rights. The complainant's flight from London to Sofia was cancelled because of heavy snowfall and he was re-routed via Munich. However, his flight was late arriving in Munich and he missed his connecting flight. The complainant thus had to spend the night there, and was not offered a hotel room by his carrier. Following contacts with the authorities in the UK and Germany, he submitted an infringement complaint to the Commission, alleging that the UK authorities were acting contrary to the relevant EU rules on air passenger rights.

The Commission argued that the problems were caused by 'extraordinary circumstances' which meant that, in line with the relevant EU Regulation, the complainant was not entitled to cash compensation. It subsequently also discontinued correspondence with the complainant.

The Ombudsman accepted the Commission's position as regards the existence of 'extraordinary circumstances' related to the snowfall. Thus, the complainant did not have a right to cash compensation. However, the complainant did have a "right to care" and should have been provided with hotel accommodation by the carrier. Given the carrier's failure to provide hotel accommodation, the Ombudsman believed that there had been an infringement of the duty of care. For this reason, the Ombudsman found the Commission's view, that there had not been an infringement of the duty of care, to be unconvincing.

The Ombudsman recommended to the Commission that, in dealing with such infringement complaints in future, it should take proper account of the carrier's duty of care to air passengers. As regards its decision to discontinue correspondence with the complainant, the Ombudsman did not agree with the Commission's view that his correspondence was "improper" and made another recommendation to the Commission in this regard.

The Commission accepted in principle the Ombudsman's second recommendation. While the Commission did not reject the Ombudsman's first recommendation, it is clear from its response that it does not share the Ombudsman's view regarding the extent of a carrier's duty of care to a passenger. In closing her inquiry , the Ombudsman dealt with this by way of a critical remark. She also forwarded her decision to Parliament's relevant committees, and to national ombudsmen, for information.

The background

1. In December 2010, the complainant went to Heathrow airport in London to travel to Sofia (Bulgaria) with a British carrier. However, his flight, together with many others, was cancelled due to heavy snowfall.

2. The complainant was re-routed to Sofia via Munich (Germany). The plane to Munich departed late, however, and he missed his connecting flight. Eventually, he was booked on another flight to Sofia which was due to leave the following morning. The complainant was offered some food and refreshments but no complimentary overnight hotel room in Munich. He therefore had to sleep on the airport floor.

3. The complainant requested an apology and appropriate compensation from his carrier. However, no compensation was provided. The complainant's efforts to resolve the case with the UK and German National Enforcement Bodies ('NEB') proved unfruitful. Therefore, he contacted the European Commission, claiming that the United Kingdom infringed the Air Passenger Rights Regulation[1] ('Regulation 261/2004').

4. The Commission took the view that no breach of Regulation 261/2004 had occurred. The complainant unsuccessfully called on the Commission to reconsider its position. He then turned to the European Ombudsman[2].

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

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

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

6. The Ombudsman invited the Commission to comment on the complainant's arguments that it: (i) did not take into account that the weather conditions were not extraordinary circumstances ; (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.

7. In addition to the allegation and claim identified above, the Ombudsman invited the Commission to comment on whether it considered that it had given useful advice to the complainant when it suggested that he turn to the competent NEB, given that the UK NEB was unhelpful and that its German counterpart declared that it did not have jurisdiction to handle the matter.

Alleged failure to deal properly with the complainant's infringement complaint

The Ombudsman's recommendations

8. On 20 June 2014, having thoroughly examined the arguments and opinions put forward by the parties, the Ombudsman reached the conclusion that the Commission's position was not in conformity with the principles of good administration.

9. In her analysis of the case, the Ombudsman accepted the Commission's argument that there had been 'extraordinary circumstances' related to the snowfall and that, in conformity with Article 5(3) of Regulation 261/2004, no compensation was therefore due under Article 7 of the Regulation as regards the cancellation or delay of the complainant's flight. She also agreed that it is for NEBs and ultimately for national courts to decide on the existence of extraordinary circumstances in an individual case. However, Regulation 261/2004 provides, both when a flight is cancelled and when a significant delay occurs, that passengers must be offered the assistance specified in Article 9(1)(a) of the Regulation. According to this provision, passengers "shall be offered free of charge" hotel accommodation "where a stay of one or more nights becomes necessary". The Ombudsman noted that the wording of Article 9(1) of the Regulation 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 cancellation or delay. It is true that the complainant was offered food and refreshments at Munich airport. However, he was not offered hotel accommodation, even though it is not in dispute that a stay of one night in Munich became necessary. Therefore, the Commission's view that there was no infringement of the duty of care was not convincing.

10. The Ombudsman acknowledged that the Commission itself cannot deal with claims of individual citizens that are based on Regulation 261/2004. 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 this case, it appeared that the Commission based its decision to close the complainant's infringement complaint on an interpretation of EU law that was not plausible. This amounted to an instance of maladministration.

11. While the complainant's case concerned an incident in 2010, the Ombudsman was concerned that the Commission's position regarding the complainant's right to care was obviously in conflict with Regulation 261/2004, and that it was likely that the Commission would adopt the same view in similar cases in the future.

12. As regards the Commission's decision to discontinue correspondence with the complainant, the Ombudsman took the view that such a step should not be taken lightly and may be taken only if the repetitive nature of the relevant correspondence is obvious. The Ombudsman furthermore considered it clear that discontinuing correspondence with a citizen is in conformity with rules of good administration only if the institution concerned has already provided the citizen with an adequate answer to his or her requests or questions. As regards this case, however, it appeared to the Ombudsman that the Commission's substantive assessment of the complainant's case was inadequate.

13. In light of the above, the Ombudsman made the following recommendations to the Commission:

"The Commission should, in future cases, when dealing with infringement complaints concerning Regulation 261/2004, take proper account of the 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."

14. On 16 October 2014, the Commission replied to the recommendations. It argued, in relation to breaches of air passenger rights, that it has no powers of redress or investigation and cannot assess the merits of an individual case. If it were to become involved in individual cases, according to the Commission, this would be a failure to respect the division of tasks (between the Commission itself, NEBs and national courts) as provided for in Regulation 261/2004 in relation to private disputes between a passenger and his carrier.

15. The Commission further stated that the NEBs take a position on each case submitted to them by taking remedial action against the air carrier, when necessary, while the national courts, when deciding on cases brought before them, take into account the position of the NEBs. This also implies that the Commission cannot overrule a decision made by an NEB, or oblige an NEB to sanction an airline. In this redress arrangement established by the legislature, the Commission merely monitors the application of the Regulation by initiating infringement proceedings against a Member State when its NEB does not correctly apply the Regulation.

16. The Commission went on to say that, if an air carrier has not complied with its obligation to provide care on the spot, the passenger is entitled to seek compensation by claiming reimbursement of the costs incurred for care. It added that the duty to provide care also applies in the event of extraordinary circumstances and emphasised that it has never stated the contrary. It also agreed with the Ombudsman's interpretation of Article 9 of Regulation 261/2004 that the initiative to provide care and assistance must come from the carrier. The Commission pointed out, however, that there were cases where passengers were not offered such assistance by the carrier, especially when many disruptions occur within the same period of time. It added that in such cases, "hotel rooms may not be available". The Commission observed that both it and the UK NEB had invited the complainant to present receipts of payment to the NEB or the carrier, should he have incurred any expenses in connection with the right of care under Regulation 261/2004. In the Commission's view, this approach is in line with the relevant case-law of the Court of Justice of the European Union ('CJEU')[3]. The Commission thus concluded that, by inviting the complainant to provide receipts of payment for the costs incurred while he was stranded at Munich airport, the competent authorities had correctly handled the complainant's case, and no measures could be taken against the UK for an alleged breach of the Regulation.

17. As regards its communication with the complainant, the Commission stated that it had already provided him with substantive replies. Since the complainant did not present any new evidence of a possible breach of EU law, the complainant's further e-mails could indeed be considered repetitive. However, the Commission acknowledged that "the style of the discontinuation [of correspondence] could have been less straightforward".

18. The Commission added, however, that it accepts the Ombudsman's recommendation that it 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.

19. In his observations on the Commission's reply, the complainant took the view that the Commission ignored the law and thus failed to comply with its statutory role as guardian of the Treaties.

The Ombudsman's assessment after the recommendations

20. In making her recommendations, the Ombudsman noted that it is clear that the Commission itself cannot deal with claims of individual citizens against their carriers on the basis of Regulation 261/2004. 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 as guardian of the Treaties, the Commission must do all it can in order to ensure that Member States and their authorities, such as the NEBs, apply EU law properly.

21. The Ombudsman points out that Article 9(1) of Regulation 261/2004 provides that "[w]here reference is made to this Article, passengers shall be offered free of charge [...] 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" (emphasis added). It its reply to her recommendations, the Commission agreed with the Ombudsman's interpretation of this provision to the effect that the initiative to provide care for passengers must come from the carrier.

22. The Ombudsman agrees that in cases where the carrier does not comply with its duty to offer the assistance that is needed, the passenger himself or herself may proceed to acquire the food, accommodation or other assistance that is needed and then ask the carrier to reimburse these costs, on the basis of the relevant receipts of payment. This is confirmed by the case-law of the CJEU to which the Commission referred.

23. However, the Commission appears to ignore the fact that this was not the situation in which the complainant found himself. The complainant argues, without being contradicted by the Commission, that he was not offered accommodation by the carrier and that he was not able to find accommodation himself. Given that the complainant appears to have slept at the airport on the night in question, he was obviously not in a position to submit any receipts of payment relating to that 'accommodation' to his carrier and ask for reimbursement. Thus it was entirely unhelpful, and disingenuous, to suggest to the complainant that he submit his receipts in circumstances where it was known that he had no receipts to submit.

24. In a nutshell, the position defended by the Commission means that passengers who are themselves able to find accommodation will be reimbursed, whereas passengers who are unable to do so will have to spend the night on the airport floor (or, if they are lucky, on any seat they may find at the airport). The Ombudsman finds it hard to believe that it was the intention of the legislature to allow for compensation in the former, but not in the latter case. Nor can she believe that the conclusion defended by the Commission is the inevitable consequence of the relevant case-law of the CJEU. In both of the judgments to which the Commission referred, the passengers concerned had managed to obtain the assistance they needed and had asked for the reimbursement of the costs they had incurred. However, these judgments do not exclude the possibility that compensation is also due where a passenger is unable to obtain such assistance.

25. In its reply to the Ombudsman's recommendations, the Commission further submitted, that in situations like the one the complainant found himself in, "hotel rooms may not be available". This is a surprising consideration. It is the carrier's duty to provide air passengers with the assistance they need in the event that their flights are cancelled or seriously delayed. This includes providing accommodation, where needed. In a situation where, in fact,no hotel rooms are available, it is for the carrier to endeavour to seek alternatives that are as comfortable as possible in such circumstances. It is clear from the complainant's correspondence with the NEBs concerned and the Commission that the question of whether it was indeed impossible for the carrier to provide him with hotel accommodation was never examined. There is no evidence to suggest that, in relation to this particular case, the carrier would not have been able to find hotel accommodation for the complainant, had it tried to find such accommodation. The Ombudsman cannot understand how, in thesecircumstances, the Commission could conclude that no breach of the Regulation had occurred.

26. It appears to be the view of the Commission, where a carrier fails to offer hotel accommodation (or other appropriate care), and where the passenger is unable find hotel accommodation, that Regulation 261/2004 does not require the payment of compensation to the passenger.The Ombudsman finds this interpretation quite unacceptable. The consequence of the Commission's approach is that there is an incentive for carriers to avoid finding hotel accommodation in such cases in the hope that the passenger may be unable to find his or her accommodation – and in such cases the carrier avoids incurring any costs. It can hardly have been the intention of the legislature that vindication of the passenger's right to care, under Article 9 of the Regulation, is left at the discretion of the carrier.

27. The Commission has not directly rejected the Ombudsman's recommendation regarding its handling of such infringement complaints in the future. But it is clear that the Commission does not share the approach which underpins the Ombudsman's recommendation. Presumably, were a similar infringement complaint to be made to the Commission now, it would maintain its view that a carrier has no liability in circumstances where it fails to offer accommodation and where the passenger has been unable, for whatever reason, to find accommodation. The Ombudsman deals with this below by way of a critical remark. Since the matter is of general importance to European citizens and may have a bearing on the decisions of other NEBs in similar cases, the Ombudsman will forward her decision to the European Parliament's committees on Civil Liberties, Justice and Home Affairs and Transport and Tourism, and also to her National Ombudsman colleagues, for information.

28. As regards the Ombudsman's second recommendation, the Ombudsman takes the view that the Commission has accepted it in principle, even though it continues to believe that it acted correctly in the complainant's case. Although the latter conclusion is clearly incorrect in view of what has been said above, the Ombudsman concludes that no further steps need to be taken as regards this aspect of the case.

Conclusion

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

According to Article 9(1) of Regulation 261/2004, air carriers must offer air passengers whose flights are cancelled or significantly delayed meals and refreshments and/or hotel accommodation free of charge. In this case, the Commission took the view that any failure of this duty leads to compensation for the passenger concerned only if the latter himself or herself actually manages to find accommodation. This interpretation is unnecessarily restrictive, is not citizen-friendly and, accordingly, is untenable. This amounts to maladministration.

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

 

Emily O'Reilly
Strasbourg, 09/07/2015

 

[1] 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, OJ 2004 L 46, p. 1.

[2] For further information on the background to the complaint, the parties' arguments and the Ombudsman's inquiry, please refer to the full text of the Ombudsman's draft recommendation available at: http://www.ombudsman.europa.eu/cases/draftrecommendation.faces/en/54553/html.bookmark.

[3] Cases C-83/10 Sousa Rodríguez and Others [2011] ECR I-9469, paragraph 44 and C-12/11 McDonagh v Ryanair, judgment of 31 January 2013, not yet published in the ECR, paragraph 21.