Recent developments in European Consumer Law: Waves of change
Usually, we focus on and discuss air passengers’ rights on this blog, as Regulation No 261/2004 is one of the instruments of consumer protection that seems to raise a lot of questions. Last week, however, the CJEU issued a judgment in the Irish Ferries case (C-570/19) pertaining to the rights of passengers of the sea transport. This time it was then Regulation No 1177/2010 concerning the rights of passengers when travelling by sea and inland waterway that required clarifications. We have elaborated on the facts of the case in our previous blog post addressing AG Szpunar’s opinion, see here: The Tide Is High….
Just like the AG’s opinion, the judgment is lengthy. The detailed approach can very well be explained by the novelty of interpreting provisions of this Regulation No 1177/2010. Generally, the CJEU confirms AG Szpunar’s findings:
1. Regulation No 1177/2010 applies when a carrier cancels a passenger service with a several weeks’ notice prior to the originally scheduled departure time due to the vessel, which was supposed to provide that service, not having been delivered in time and which could not be replaced. This means that the CJEU considers the notion of passengers ‘travelling on’ the service to be a broad one, encompassing also passengers who made a reservation or purchased a ticket for the service (para 51).
2. Article 18 obliges carriers to offer a re-routing option to passengers of the cancelled service. Re-routing could take a form of offering a maritime service on a different route combined with the use of other transportation modes (rail or road), thus carriers retain flexibility as to how they would want to organise re-routing (para 64). Carriers are to bear any additional costs, which passengers were subject to when re-routed to their final destination, e.g. costs of fuel or road tolls to reach a different embarkation/disembarkation port or costs of using a landbridge (paras 66-67). Passengers need to be able to demonstrate that they incurred such costs.
3. Articles 18 and 19 may be applied together. This means that re-routed passengers have a right to compensation if their re-routed journey leads to a delay in reaching the final destination, which would cause a serious inconvenience (para 89). If passengers of a cancelled service decide to choose reimbursement rather than re-routing, they are not entitled to claim compensation for a delay (para 88).
4. Compensation mentioned in Article 19 is calculated based on the ‘ticket price’. This notion includes costs relating to the additional optional services chosen by the passenger, e.g. booking of a cabin or a kennel, or access to premium lounges (para 95). This means that the amount of compensation owed to passengers may differ amongst passengers of the same cancelled service.
5. Late delivery of the vessel does not qualify as ‘extraordinary circumstances’, which would release the carrier from the obligation to pay compensation. The CJEU borrows the interpretation of this notion from the air passenger rights’ area, which means that only events not inherent in the normal exercise of the activity of the carrier and beyond their actual control would qualify as extraordinary circumstances (para 107, 112).
6. The complaint handling procedure of Article 24 is not applicable to compensation claims on the basis of Article 19, as that complaint handling procedure provides carriers with certain discretion as to what actions to take upon receiving a complaint, which lacks when the compensation is triggered (para 118 and 121).