Industry responds to BEIS/DFT Consultation on Implementing Amendments to EU ETS

Industrial action has generally been considered to be ‘extraordinary circumstances’ and therefore defendable under EC Regulation 261/2004. This has meant that even where a passenger has (i) suffered a delay on arrival at their final destination of three hours or more or (ii) had their flight cancelled, carriers have been able to resist paying out compensation under EC Regulation 261. Whilst compensation has not been payable historically in these cases, passengers continued to have a right to care and assistance under Article 9, which includes the provision of meals and refreshments and where applicable accommodation.

In October 2017 we covered the joined cases of Gahan -v- Emirates and Buckley and Ors -v- Emirates [2017] EWCA Civ 1530, in which the UK Court of Appeal ruled that Emirates (a non-EU carrier) was liable to pay compensation to passengers who had missed their connecting flight between non-member states, where they had suffered a delay of over three hours upon arrival at their final destination. The rationale behind this decision was that the first leg of the passengers’ journey departed from an EU member state and that the directly connecting flights should be considered together to determine whether liability was triggered under EC Regulation 261/2004.

The recent High Court decision in Sinfield -v- London Organising Committee of the Olympic and Paralympic Games (in Liquidation) sets out the correct approach to dismissing personal injury claims for fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015. 

The industry is well acquainted with the vast array of EC Regulation 261/2004 (‘EC 261/2014’) decisions. Whilst it waits with baited breath for signs that a reform may still be on the horizon, claims still make their way to the Court of Justice of the European Union (CJEU) for preliminary rulings (yes, you ask, how can there still be more doubt about EC 261/2014’s application?).

Last week, the EU Presidency and Parliament reached a provisional agreement which seeks to extend the EU ETS derogation relating to international flights operating to and from Europe to the end of 2023. Once implemented, this will bring long-awaited clarity to the industry, since the expiry of the previous derogation in December 2016. It is understood that the revised derogation will expire at the end of the three year pilot phase under ICAO’s Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). The provisional agreement will require approval by member states before it comes into force.

On 12 October 2017 the court of appeal found against Emirates Airline (Emirates) in joined claims brought by Miss Gahan and the Buckley family, ordering the carrier to pay compensation for delay under Regulation EC 261/2004 (EC261). It considered the overall delay, accumulated on both legs of their journeys, which the plaintiffs had suffered in arriving at their final destination more than thirteen and sixteen hours late respectively.