Air transport. Advocate General Jean Richard de la Tour finds that EU law does not prevent the conferral on a national body of the power to request air carriers the payment of a pecuniary compensation to passengers

On 28 April 2022, Advocate General Jean Richard de la Tour issued his opinion in case C-597/20, on a preliminary ruling concerning the interpretation of article 16, paragraphs 1 and 2, of Regulation (EC) No 261/2004 of the European Parliament and of the Council. The request was made in proceedings before the Fővárosi Törvényszék (Court of Budapest, Hungary, the “referring court”) on the validity of an order, issued by the Hungarian inspectorate for consumer protection of governmental decentralized services (the “inspectorate”) upon request by passengers of a delayed flight and addressed to the company Polskie Linie Lotnicze «LOT» SA (“LOT”), whereby LOT was requested to pay a compensation to the abovementioned passengers. Moreover, LOT was ordered to pay the same compensation to any passenger with a similar claim. 

The inspectorate claimed to be authorised to issue such order against air carriers to address violations of Regulation 261/2004, according to article 43/A, paragraph 2, of the Hungarian law on consumer protection, transposing article 16, paragraphs 1 and 2, of Regulation 261/2004. 

The referring court noted that, in order to rule on the appeal against the order of the inspectorate, it was first necessary to determine the extent of the competences that could be exercised by the inspectorate in light of European Union law, and in particular of article 16, paragraphs 1 and 2, of Regulation 261/2004. Therefore, the referring court decided to stay the proceedings and to refer a question for a preliminary ruling to the Court of Justice, asking whether article 16, paragraphs 1 and 2, of Regulation 261/2004 had to be interpreted as precluding the conferral, on the national body responsible for the enforcement of the Regulation and that handles individual claims from passengers, of the power to request air carriers to pay any compensation due to passengers in accordance with the Regulation. 

The Advocate General, in order to present his opinion on the referred question, proceeded with the examination of the wording of article 16, as well as of the context and the objectives of Regulation 261/2004. In particular, the Advocate General noted that, on the one hand, the wording of article 16 does not appear to lead to the conclusion that such sanctioning powers cannot be conferred to a national body and, on the other hand, that the conferral of such competence on a national body is in line with the objectives of the Regulation. At the same time, the Advocate General underlined that the Hungarian law does not deprive passengers and air carriers of their right to bring proceedings before a national court on the matters pertaining to the compensation.  In light of the above, the Advocate General proposed to the Court of Justice to rule that article 16, paragraph 1, of Regulation 261/2004 be interpreted as not precluding the existence of national legislation that confers on a national body the power to order an air carrier to pay a compensation to a passenger for to the cancellation or long delay of the flight of the latter. However, such national legislation shall not preclude the passenger or the air carrier from bringing proceedings before the competent national court, on matters pertaining to the compensation. Member States shall determine, by exercising their margin of discretion, the rules governing the coordination between proceedings before the national body and before the competent national court.

Andrea Palumbo