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EU ruling on Emirates v. Schenkel - What's your opinion?

United Kingdom
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EU ruling on Emirates v. Schenkel - What's your opinion?

I recently came across a quite fascinating case, the (very) short summary of the case being the following:

The German citizen Mr. Schenkel bought a ticket from Emirates Airlines to fly from Dusseldorf to Manila via Dubai and return in 2006.

His flight back to Dusseldorf on the 12 of March 2006 was cancelled for technical reasons and he manage to fly back home after two days.

Upon his return home Mr. Schenkel sought compensation for the aforementioned delay as foreseen by EU Regulation 261/2004.

A German Court ruled in favor of Mr. Schenkel and awarded him €600 in compensation.

Emirates Airlines appealed the ruling. The German Court of Appeal referred the matter to the European Court of Justice for clarifications.

On the 6 of March 2008 The European Court of Justice ruled in favor of Emirates Airlines against Mr. Schenkel.

The Court ruling in favor of the defendant is based on overriding the Montreal Convention, duly ratified by a large number of countries including the Government of the United Arab Emirates (sole shareholder of Emirates Airlines) and on a linguistic disquisition on the term "flight".

The case and its ruling can be found on the EU website (eur-lex.europa.eu/LexUriServ/LexUriServ.do…)

I find this case particularly intriguing, especially in consideration that the EU Court of Justice ruled in favor of a carrier and against a European Citizen. What makes the ruling stand out is the extent to which the Court has gone to shred the Montreal Convention and its non ambiguous definiton of carriage.

I have a pretty strong opinion on this matter but I would like to hear from the largest number of forum contributors first since this case does set a negative precendent for all those European travellers using non Community carriers hubbing in non-member states.

The Netherlands
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1. Re: EU ruling on Emirates v. Schenkel - What's your opinion?

To me it seems a pretty simple case. According to article 3 of the regulation the regulation applies to any passenger:

- departing from an EU member state, or

- travelling to an EU member state on an airline based in an EU member state.

Mr. Schenkel was not departing from an EU country (he was departing from Manilla) and he was not traveling with an EU airline.

You find this case intriguing, because the EU Court of Justice ruled in favor of a carrier and against a European Citizen. I don't see your point. Do you think that a European citizen is always right, no matter the rules?

More intriguing is why the German Court awarded the compensation. How can an United Arab Emirates airline in The Philippines be forced to abide by EU rules?

UK
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2. Re: EU ruling on Emirates v. Schenkel - What's your opinion?

I have to agree with the comments in the first response.

Perhaps it might be hard for Mr. Schenkel & his supporters to grasp this but, in my opinion the ruling was the correct one - a victory for common sense.

United Kingdom
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3. Re: EU ruling on Emirates v. Schenkel - What's your opinion?

I believe that the point of contention in this case lays in the clash between a cut and dry regulation, the Montreal Convention, and the interpretaion of the watered down and ambigous EU Regulation 261/2004.

The Montreal Convention clearly states in article two that "For the purposes of this Convention, the expression "international carriage" means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party."

This means that a stopover is irrelevant to the nature of the contract and that the flight is a unique flight irrespective of stops.

Non community air carriers are subject to adhere and abide to eu air carrier regulations, thus they fall under regulation 261/2004 which states that "This Regulation shall apply:(a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies; (b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies."

Granted that the Montreal Convention states that a flight is to be considered a single flight irrespective of its segments and that 261/2004 covers passengers departing from an apt located in a third country with desitnation to a member state it sounds odd to me that the EU Court sided with the carrier against the passenger by means of shredding the Montreal Convention.

Mr. Schenkel claim is that his flight departing from Manila to Dusseldorf via Dubai is to be considered a single flight despite the stopover, hence covered by 261/2004 and deserving compensation.

The Netherlands
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4. Re: EU ruling on Emirates v. Schenkel - What's your opinion?

You are making an incomplete quote:

1. This Regulation shall apply:

(a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;

(b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, (...) IF THE OPERATING AIR CARRIER OF THE FLIGHT CONCERNED IS A COMMUNITY CARRIER.

Emirates Airlines is not a Commity carrier. This means that Mr. Schinkel was protected by EU rules when he was departing from Dusseldorf to Manila, but not when he was departing from Manila to Dusseldorf.

Mr. Schenkel claim is NOT that his flight departing from Manila to Dusseldorf via Dubai is to be considered a single flight despite the stopover. "He submitted that the outward and return flights were non-independent parts of a single flight." So Mr. Schenkel claim is that his flight departing from Dusseldorf to Manila and his flight back departing from Manila to Dusseldorf are to be considered a single flight (from Dusseldorf to Dusseldorf), hence covered by 261/2004 and deserving compensation. I think that is a ridiculous claim.

Surrey UK
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5. Re: EU ruling on Emirates v. Schenkel - What's your opinion?

I agree with Whatsinaname.

Only a Euro-commissioner trying to cover his backside (at Euro-taxpayer's expense) would attempt to argue that the outbound and return flights are a single "flight".

The draftsman of the Eu regs had a choice. He could have applied it to flights to or from the Eu but either

1. decided he could not apply it to return journeys to the Eu unless the carrier was an Eu carrier - in which case why argue about it now?

2. or he messed up and wasted taxpayer's money in trying to get the Appeal Court to close the loophole. I suspect it was the Eu commission and not Dr Schenkel who funded this appeal

Surrey UK
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6. Re: EU ruling on Emirates v. Schenkel - What's your opinion?

But thanks UKBob for publicising this. It is an interesting, albeit unwelcome, result.

eyelessingaza
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7. Re: EU ruling on Emirates v. Schenkel - What's your opinion?

Have you read the ECJ Judgment in the the "IATA" case of 2006?

This was the airline industry challenge to EC 261/2004.

Fundamentaly there is a lot of air lawyer geekiness in this but essentially EC 261/2004 ( and consequently anything the ECJ says about EC 261/2004) cannot overrule/override the Convention. They are allowed to exist side by side -the ECJ said in 2006- and how they impinge one upon the other is a story yet to unravel) but EC 261/2004 cannot overrule Montreal.

Perhaps the real interest of the Schenkel case was the definition it gave of "flight" in more general terms-which was picked up in the Sturgeon v Condor and Bock v Air France case reference and the judgment given by the ECJ on 19th November 2009. (As you mention the concept within the Convention is the "contract of carriage"-the concept of "flight" in newly introduced and unique to EC 261/2004).

In terms of advancing the position of passenger v airline this might be considered much more significant..

(Incidentally -to regard the Warsaw/Montreal Convention as unambigious might be a mite simplistic-it has after all been litigated for 80 years now by a succession of generations of passengers/cargo interests and their lawyers-arguing over inherent "ambiguities").

8. Re: EU ruling on Emirates v. Schenkel - What's your opinion?

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