Current implementation of Regulation
261/2004 in some Member States: France
EAC, 17
thOctober 2013
Dr. Vincent CORREIA
Maître de conferences en Droit public Université Paris-Sud
Passenger protection has gained an increasing importance
in France ultimately
A
special authority to monitor and increase the quality of transport
services offered to citizens
was created on 15 February 2012
(
« Autorité de la qualité de service dans les transports »)
This authority handles statistics regarding cancellations and delays, published
on its website : http://www.qualitetransports.gouv.fr
This authority only plays an informative role and tries to make passengers
aware of their rights
It estimates that, on average, 11 % of domestic flights are delayed and 39 % of
flights connecting to French overseas regions are delayed (40 minutes on average)
The implementation of Regulation 261/2004 in France is
quite satisfactory, but:
The number of claims remains
low
It is also
increasing
This has revealed important issues in France:
The French NEB suffers from limited resources, essentially in terms of staff
working on air passengers’ rights.
The interpretation of Regulation 261/2004 by national jurisdictions is not always
uniform
There is a strong commitment in favour of alternative dispute resolution
I.
The handling of complaints by the French NEB
The French NEB, the « Bureau des passagers aériens » of the
Direction générale de l'aviation civile (DGAC)
handles between 3500
and 6000 claims
each year.
The main problems is that only
5 to 6 persons are working full time
in the French NEB for air passengers rights complaints
(both
261/2004 and 1107/2006).
As a consequence the complaint handling process is
very slow
I.
The handling of complaints by the French NEB
If necessary, the NEB can ask for
additional information
to the other
services of the French Directorate-General for Civil Aviation:
If the justifications proposed by the airline are not satisfactory, the NEB
will ask the carrier to comply with the Regulation or to submit new
evidences (for instance in case of extraordinary circumstances),
It is estimated that
80 % of the cases are settled at this stage
,
if this step is not sufficient, the NEB will transfer the file to the
I.
The handling of complaints by the French NEB
The Commission administrative de
l’aviation
civile (CAAC) meets
twice per year
Within the CAAC there is a special configuration dedicated to air passengers’ rights, which comprises representatives of airlines, travel agents and passengers
It can formulate opinions to the Minister of Transport inviting him to impose an administrative fine (Article R330-20 of the French Code de l’aviation civile).
The amount of the fine is of maximum 7 500 € per failing or 15 000 € in case of a renewed breach in the same year (Article R330-22 of the French Code de l’aviation civile)
The decisions imposing fines are motivated and can be challenged before the French administrative Courts (Article R160-14 Code de l’aviation civile) but they are not published
According to estimations only 40 files out of 4000 complaints are transmitted to the CAAC each year and a very few number of cases lead to a fine (only 8 in 2010).
II.
The
establishment
of
an
alternative
dispute
resolution mechanism
Adoption of the « Charte de la Médiation du Tourisme et du Voyage », signed on 18
July 2011, concerning flights only or flights comprised in a travel package
The number of aviation actors participating to this mechanism is growing and comprises now : Fédération Nationale de l’Aviation Marchande (FNAM), Syndicat des Compagnies Aériennes Autonomes (SCARA), easyJet, Association de Tour-Operateurs, Syndicat National des Agences de Voyage and Aéroport de Paris.
The cases are submitted to an independent Mediator
The outcome is an opinion delivered in law and equity
Each party is free to accept or not the opinion, but the professionals participating
to the mechanism (i.e. the members of any organisation that signed the Charter)
II.
The
establishment
of
an
alternative
dispute
resolution mechanism
The objective of this ADR Mechanisms is to avoid the problems raised by the multiplication of judicial cases regarding Regulation 261/2004.
First, there is a problem with the trial judges:
In France claims regarding denied boarding, cancellation and delays are, because of their small amount, decided by “Juges de Proximité”
Those Judges are not professional Judges and can have sometimes difficulties to understand the questions at stake because they lack legal expertise.
They also lack technical expertise: the procedure is essentially oral and the judges do not have time to read extensive documents on technical matters
II.
The
establishment
of
an
alternative
dispute
resolution mechanism
Second, there is also a problem of diverging interpretations of
Regulation 261/2004
On overall, French jurisdictions interpret Regulation 261/2004 in accordance with the CJEU’s Case Law:
ECJ, 10 January 2006, IATA and ELFAA: Court of Appeal of Aix-en-Provence, 9 November 2012, n°12/08544; Court of Appeal of Angers, 26 January 2010, n° 09/00126; Court of Appeal of Paris, 3 July 2008, n°06/22704 ; Court of Appeal of Versailles, 10 July 2013, n°13/03381
CJEU, 13 October 2011, Sousa Rodriguez: Court of Appeal of Paris, 22 November 2012, n° 09/18499
ECJ, 9 July 2009, Rehder: Court of Appeal of Aix-en-Provence, 9 November 2012, n°12/08544
II.
The
establishment
of
an
alternative
dispute
resolution mechanism
But there are still diverging interpretations of compensation for
delays.
The Sturgeon case is generally enforced by the Courts : for instance, Court of
Appeal of Grenoble, 16 October 2012, n° 09/02188
The difference between cancellation and delays is being accepted for a long time:
Court of Appeal of Paris, 3 July 2008, n° 06/22704
II.
The
establishment
of
an
alternative
dispute
resolution mechanism
Diverging interpretations of extraordinary circumstances:
For instance some judges tend to accept that a technical problem or adverse
meteorological conditions are sufficient to avoid paying the compensation:
Court of Appeal of Paris, 16 June 2011, n° 09/28086
While others will apply the Wallentin-Hermann Ruling very strictly: Court of
Appeal of Saint-Denis-de-la-Réunion, 22 July 2011, n° 10/01924 ; Court of
Appeal of Paris, 4 November 2011, N° 10/08581; Court of Appeal of Grenoble,
16 October 2012, n° 09/02188
In a case similar to the CJEU, 12 May 2011, Eglītis et Ratnieks, the Court of
Appeal of Paris adopted a solution different from the CJEU: Court of Appeal of
II.
The
establishment
of
an
alternative
dispute
resolution mechanism
Specific problem regarding the interpretation of the Regulation for
flights going to French overseas departments and territories
.
Because, contrary to Article 10 for reimbursement, article 7 seems to
include them in the second category (intra-European flights)
Some jurisdiction allow the corresponding compensation of 400
€
: CA de
Saint-Denis de la Réunion, 22 juillet 2011, n
°
10/01924
II.
The
establishment
of
an
alternative
dispute
resolution mechanism
All these reasons explain why the airlines and travel agents are now
committed to develop ADR
This can also be a mean to fight back the companies that are using
Regulation 261/2004 to make profits, such as Transindemnité and
Skymediator in France.
In 2012, the
“Mediation
du tourisme et du
voyage”
examined 822 cases
and delivered 305 opinions:
Approximately 64 % of the opinions are in favour of the passengers, 36 % in
favour of the carrier
