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Articles | Mon 7th Dec, 2020
The team is feeling festive this week; the puddings are made, the tree is dressed, the Christmas madeira is decanted, and the 1CL choir is practising its carol singing. And what better to add to the generally joyous air than yet another award to add to our already pretty impressive collection? This week brought the Personal Injury Awards 2020 Chambers of the Year trophy, an attractive glass affair awarded to chambers in recognition of our ‘strong track record of working on high profile and complex cases going above and beyond for clients’. We’re feeling a warm Christmassy glow already.
How The Grinch Stole Christmas Skiing
‘It’s the season from hell!’ So lamented one European ski operator. You’d be excused for thinking that hell would be a distinctly tolerable place if it consisted merely of empty ski resorts and disgruntled executives. Hyperbole aside, things really are looking bad this winter for Europe’s ski resorts as it looks increasingly unlikely they’ll be open over the festive period. These precious weeks provide a considerable proportion of the industry’s yearly revenue, so this ‘open vs shut’ question is critical.
Prominent politicians like German Chancellor Angela Merkel and Italian Prime Minister Giuseppe Conte have called for all ski resorts in Europe to close until January, while French President Emmanuel Macron said it seems “impossible” to consider opening France’s lifts for Christmas (albeit a final decision has not yet been made). Conversely Austria and Switzerland reportedly intend to open their seasons in December, and Bulgaria has rejected Germany’s call to stay shut. Ultimately there remains much confusion for both operators and consumers, both having hoped for some activity and fun following the stasis of 2020 thus far.
The incongruence of the resorts staying shut, but national restrictions being loosened in other ways, has also caused consternation. The director of France’s Les 3 Vallees region, said to be the world’s largest ski area, complains that from mid-December French people will be allowed to travel across France and visit the resorts, walking in the mountains and going into shops, but may not be able to ski. The Val d’Isere resort has tried to make the most of this prospect, stressing that the village remains open for those wanting to “recharge their batteries”.
From a travel litigator’s perspective, the ongoing uncertainty raises issues around skiing package holidays previously purchased which are due to take place this Christmas. Of course if the resort is not open, then this will surely trigger Regulations 12 and/or 13 of the Package Travel and Linked Travel Arrangements 2018, which relate to unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and which significantly affect the performance of the package (Regulation 12), or where the organiser is prevented from performing the contract because of unavoidable and extraordinary circumstances (Regulation 13). In both cases the traveller is entitled to a full refund, but no compensation.
The trickier question regards those countries which have not yet made up their minds, or those where a decision has been made but there could be a volte face, and whether there remains the ‘flicker of hope’ (as in Lambert v Travelsphere Limited  CLY 1977) that the holiday could go ahead. In this scenario traveller and package travel operators alike are incentivised to wait until the last minute to cancel, causing much uncertainty, stress and logistical difficulty (for example in reclaiming annual leave) for consumers.
Those resorts, such as Val d’Isere, which remain open, but without facilities to ski, present even greater interpretational difficulties. It is tentatively suggested that Regulations 12 and 13 would not be engaged, because the package can still be performed, but it is certainly arguable that Regulation 12 is engaged, because the performance of the package is significantly affected, not in quantitative but in qualitative terms, thus enabling the traveller but not the organiser to cancel the holiday without penalty.
Could it be that we will see a resurgence in the Great Refund Saga? Bah humbug!
About the Author
One of the more junior members of the team, Richard Collier was called to the Bar in 2016. Before that, he had worked as a Judicial Assistant to Lord Justice Jackson in the Court of Appeal. He is now instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims.
Gremlins (in the Flight Schedule): Diversion and Cancellation of Flights
Advocate General Pikamae has provided his Opinion in the ongoing case of WZ v Austrian Airlines AG, Case C-826/19, in which the Austrian courts referred to the Court of Justice of the European Union a number of questions relating to the operation of Regulation (EU) 261/2004. The claim arose out of a two-flight booking, the first leg between Klagenfurt to Vienna, and then on from Vienna to Berlin Tegel. The second leg was due to depart at 21.00 and arrive at 22.20. However, as a result of weather conditions on turnaround three flights back in the rotation sequence, the flight was diverted from Vienna, where it departed at 22.07, to Berlin Schonefeld, where it arrived at 23.18. The passenger therefore arrived some 58 minutes late, and at an airport some distance outside the city of Berlin. He suffered some inconvenience as a result; he landed some 16km further from his home, and his journey from the airport to his home took an additional 26 minutes as a result. To add insult to injury, Austrian Airlines did not provide him with any assistance in getting home from the airport.
The passenger sued the airline for €250 on the basis that his flight had not been cancelled and that he ought to have been provided with assistance in getting home. At first instance the Austrian court held that the flight had not been cancelled and that the diversion to another Berlin airport did not constitute a significant alteration to the flight itinerary. On appeal the Regional Court of Korneuburg referred a number of questions to the CJEU:
(1) Is Article 8(3) of [Regulation No 261/2004] to be interpreted as meaning that it is applicable to two airports which are both located in the immediate vicinity of a city centre, but only one of them is located in the territory of the city and the other is located in a neighbouring federal Land?
(2) Are Article 5(1)(c), Article 7(1) and Article 8(3) of [Regulation No 261/2004] to be interpreted as meaning that, in the event that a flight lands at an alternative airport of destination in the same town, city or region, there is a right to compensation owing to cancellation of the flight?
(3) Are Article 6(1), Article 7(1) and Article 8(3) of [Regulation No 261/2004] to be interpreted as meaning that, in the event that a flight lands at an alternative airport in the same town, city or region, there is a right to compensation owing to a long delay?
(4) Are Articles 5, 7 and Article 8(3) of [Regulation No 261/2004] to be interpreted as meaning that, in order to determine whether a passenger has suffered a loss of time equal to or in excess of three hours within the meaning of the judgment [of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716)], the delay must be calculated on the basis of the point in time at which the flight lands at the alternative airport of destination or the point in time at which the passenger is transferred to the airport of destination for which the booking was made or to another close-by destination agreed with the passenger?
(5) Is Article 5(3) of [Regulation No 261/2004] to be interpreted as meaning that an air carrier which operates flights as part of a flight rotation system may rely on an incident – specifically on a reduction of the arrival rate brought about by stormy weather conditions – which occurred in relation to the flight three flights back in the rotation sequence of the flight concerned?
(6) Is Article 8(3) of [Regulation No 261/2004] to be interpreted as meaning that, in the event that a flight lands at an alternative airport of destination, the air carrier must take the initiative to offer transport to a different location, or the passenger must request the transport?
(7) Are Article 7(1), Article 8(3) and Article 9(1)(c) of [Regulation No 261/2004] to be interpreted as meaning that the passenger has a right to compensation owing to a breach of the obligations to provide assistance and care provided for in Articles 8 and 9?’
The Advocate General was only asked by the Court to give an opinion as to questions (2), (3), (6) and (7).
He concluded that where a flight is diverted to the same town, city or region as the place of arrival originally booked, it cannot be said to have been cancelled (unless of course there is a delay of more than three hours). Therefore no compensation is payable, although the carrier does owe a duty to assist the passenger in travelling from the airport of arrival to the airport originally intended as such (or some other nearby place agreed between them), and must offer to bear the cost of doing so. Failure on the part of the carrier to offer such assistance or to offer to bear the cost of transfer does not, so the Advocate General concluded, give rise to a right to lump-sum compensation, but it does entitle the passenger to reimbursement of ‘the amounts which, in the light of the specific circumstances of each case, prove necessary, appropriate and reasonable to make up for the air carrier’s breach’.
It remains to be seen whether the Court will follow the Advocate General’s Opinion; but it is certainly indicative of what many commentators will regard as the likely outcome. It is also interesting to note that Advocate General Pikamae is astute to note the likely practical consequences of his interpretation of the Regulation, as opposed to the interpretation sought by the Commission:
“…it is not obvious to me that a reading of Article 8(3) of Regulation No 261/2004 on which diversion to an airport serving the same town, city or region as that for which the booking was made is treated as a cancellation would ensure a higher level of protection for passengers than the reading on which it is a distinct category of defective performance, separate from cancellation, denied boarding or long delay on arrival. I note that one of the means employed by that regulation, to achieve its primary objective of ensuring a high level of protection for passengers, is to dissuade air carriers from cancelling flights. Against that background, it is easy to imagine that, if the diversions envisaged by Article 8(3) of Regulation No 261/2004 were not understood as falling outside the concept of ‘cancellation’, and thus gave rise to the same passenger rights as a cancellation, air carriers might react, in many cases, as astute economic operators, and decide to cancel flights which could simply have been diverted to an airport near that for which the booking was made, and offer passengers on those flights re-routing to that airport, probably at a later date. After all, would it be economically rational to make the organisational effort required for passengers to be able to reach their final destination at the earliest opportunity, which is often non-negligible, if the obligations incumbent on air carriers in the event of such a diversion were comparable to those incumbent on them in the event of cancellation (compensation, assistance and care)?..”
They say you know you’re getting old when judges start looking young; perhaps you know you’ve absorbed too much festive spirit when Advocates General start looking cynical.
About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury.
We know that regular readers will have been surprised by our failure to mention, so far, chambers’ greatest recent triumph. We’ve been busy clearing a space in the overcrowded chambers trophy cabinet (faux mahogany with puce crushed velvet interior and soft pink mood lighting, since you ask), shifting the Personal Injury Awards Chambers of the Year trophy to the back, moving Andrew Warnock QC’s richly deserved gong for Personal Injury Silk of the Year to one side, putting Sarah Prager’s Travel Lawyer of the Year 2020/2021 and Women in Law 2020 baubles down a shelf, and generally having a spruce up. You’ll know why, of course; it’s in readiness for our first ever Chambers Christmas Number One. The gold disc in question will, we are completely confident, be brought home by one of our silks, in his capacity as a member of Police Dog Hogan, who have released our new favourite Christmas song and video. It will make you cry, it will make you laugh, it will make you wonder which Father Christmas is also an outstanding advocate (Legal 500) with phenomenal cross examination skills (Chambers & Partners). We also hope it will make you donate to charity; all proceeds from downloads go to Crisis This Christmas, but don’t feel that that must be the limit of your charitable donation.