In recent years, the European Union (EU) has promulgated several ‘consumer protection’ regulations that address a variety of airline passenger issues, including flight delay, cancellation, and denied boarding. The new rules require airlines to grant financial compensation to passengers in the event of denied boarding or flight delay or cancellation, assist them in revising their travel plans by giving them the choice between a rescheduling of the ticket or a refund, and pay for their board and lodging. However, both the Warsaw and the Montreal Conventions for the Unification of Certain Rules for International Carriage by Air directly address the issue of air carrier compensation to passengers for damages suffered as a consequence of ‘delay’, and explicitly provide that the remedies specified therein are exclusive. As all Member States of the EU have ratified those Conventions, it would seem that the promulgation of conflicting EU Regulations raises serious legal questions regarding the relation with the international conventions.
The overall conclusion the authors draw from the examination of the EU Regulations and the case law they produced is that EU law conflicts with the international conventions and the exclusivity of their application.
The position of the European Court of Justice (ECJ) in interpreting the EU Regulations does not facilitate a uniform application of different rules. In case after case, the Court has stated that the jurisprudence surrounding the Warsaw and the Montreal Conventions, broadly speaking, is irrelevant when interpreting the Regulations. It is incomprehensible that these Regulations, and their interpretation by the ECJ, would be so fundamentally inconsistent with the explicit provisions of the Conventions. If the Court had taken a more consensual approach, the EU rules might have complemented, rather than conflicted with, the Conventions.Air and Space Law