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A recent Ontario Small Claims Court decision of Barcelos v Azores Airlines (SATA) 11 July 2019 (unreported) dismissed a claim for EU261/2004 compensation.
The passenger, a resident of Toronto, Canada sought to sue Azores Airlines for breach of contract after his flight from Toronto to Portugal was delayed. He argued that the airline’s condition of carriage which stipulated that it “fully complies with the EU261/2004” meant that he could claim under breach of contract, 600 euros as compensation on account of the delay.
Although the passenger had a choice to sue the airline in a European jurisdiction, the passenger sought to sue Azores in Toronto, his place of residence and also the place of disruption.
Perhaps not surprisingly, Azores defended the claim, arguing that “fully complies” was merely a nod to its compliance with the EU 261/2004 - in so far as it applies - and therefore the EU261/2004 is not contractually or otherwise enforceable in Canada, not being a country within the European Union.
This depends on the wording of the Conditions of Carriage and whether it can be read to expressly intend for the EU261/2004 Regulation to be enforceable outside of Europe or not.
In dismissing the application in Barcelos, Deputy Judge Prattas held, in siding with Azores Airlines, that the EU regulation does not form part of its contractual promise to passengers outside of Europe when the wording of the Conditions of Carriage are vague and not sufficiently express to indicate intention or promise to be bound, when not otherwise applicable. See also Dochak v Polskie Linie Lotnicze LOT SA (189 F Supp 3d 798 (2016)).
The Court further held that in any event, a Canadian Court was not the appropriate forum to hear and decide on a case based on European law.
If the national law permits the passenger to re-plead, he/she may attempt to sue directly under the EU261 Regulation. However this was tried in the American case of Volodarskiy v Delta Airlines Inc (2015) and expressly rejected with the Court of Appeal stating:
‘...the principles of legal certainty and subsidiarity serve to reinforce our interpretation of the text of EU 261 and the limited scope of its enforcement regime. Accordingly, for the foregoing reasons, we conclude that EU 261 is not judicially enforceable outside the courts of EU Member States.’
It is likely that other non-European Courts, in line with the forum non conveniens principles, would follow suit with Volodarskiy and dismiss a claim made directly under the EU261/2004 Regulation.
What to do if you live outside of the EU but have a claim?
If you have a valid EU261/2004 claim for compensation, and the airline has wrongfully rejected your claim, you may be able to sue the airline directly under the EU261/2004 Regulation on the basis of the departure point, or the airline’s domicile.
The appropriate forum to bring your unsettled claim against a travel provider can be confusing and the time limits to bring claims differs across countries.
Weclaim are experts in litigating claims against airlines and know the intricacies in filing in different European member states.
Contact Weclaim today to enforce your rights.
25 September 2019
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