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The European Court of Justice (ECJ) has “gambled its legitimacy” by “judicial lawmaking” in its rulings on air passenger rights.
That is the view of Professor Adam Lazowski of Westminster Law School, who said last week: “The court rewrote EU legislation.”
ECJ judgments have infuriated airlines and left specialist law firms claiming passengers are entitled to billions of pounds in compensation for flight delays.
Cheshire-based solicitors Bott & Co suggested last month that 10.8 million passengers travelling to or from the UK in the past six years are entitled to compensation, with payouts averaging €434 per passenger.
Rights to compensation from airlines stem from EU Regulation 261/2004. This entitled passengers to compensation for denied boarding or cancellation, but only to assistance for delays. “That is what the ECJ revoked,” said Lazowski. (The court extended compensation to flight delays of three hours or more in a 2009 ruling.)
In a lecture at the University of Westminster, Professor Lazowski said: “The Court of Justice is not supposed to write the law. [But] it added a piece of legislation that simply did not exist.
“Its adoption was followed by a big ‘go and sue’ campaign. Airports all over the EU are full of posters advising passengers of their rights.”
The ruling came in the case of Sturgeon v Condor involving a family flying from Frankfurt to Toronto who suffered a 24-hour delay. German carrier Condor argued the flight was delayed not cancelled, and the case went to the ECJ for a ruling on whether long delays are the same as cancellations.
Lazowski said: “The case exposed the unequal treatment of passengers. The advocate general of the Court of Justice acknowledged it was a problem, but warned it was not the job of the ECJ to fix this by means of interpretation.” He said: “It’s particularly puzzling that the court decided to proceed.”
The ECJ ruled a flight “cannot be regarded as cancelled where it is operated in accordance with the carrier’s original planning”. But it went further, Lazowski said. “Controversially, it held that passengers were entitled to compensation for a delay of more than three hours.”
He argued: “The court was trying to wake up EU citizens, to say ‘Look, these are your rights. Go and sue. It picked a good case. People travel a lot and flights are delayed. It was a good opportunity. The ECJ took the side of consumers, but gambled its legitimacy.”
Lazowski accused the court of “poor reasoning”, saying it never publishes the legal argument behind rulings, and noted: “The court is often criticised for the quality of its judgments.”
The ECJ has rejected all challenges to its “judicial lawmaking”. Lazowski pointed out the Treaty of the Functioning of the European Union, which provides the basis for EU law, requires the ECJ to “ensure that in interpretation and application of treaties the law is observed”.
Quoting a fellow professor, he argued: “If courts go beyond their duty of saying what the law is, they lack legitimacy.
”UK carriers face an estimated bill of £250 million a year to meet claims as a result of the ruling.
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