For those not familiar with it, or in need of a refresher perhaps, Sturgeon (ECJ Case C-402/07) ruled that passengers who experience a delay of three hours or more have a right to compensation under Article 7 of EU Regulation 261/2004.
The judgment was cause for surprise when it was issued because Regulation 261/2004 says nothing of the sort. It says that compensation is payable where flight is cancelled, or where a passenger is denied boarding against his or her will. Compensation is also available, in some circumstances, where re-routing is offered and accepted by a passenger.
Well the European Court of Justice read what the Regulation said and decided to rewrite it. That work of surreptitious revision, arguably inconsistent with the Montreal Convention of 1999 (see Articles 19 and 27), is presently under challenge in the TUI Travel case (Case C-629/10). While TUI Travel is yet to be heard, we thought it would be an appropriate juncture to revisit Sturgeon and learn, again, just how one should best blatantly rewrite a piece of legislation one does not like.
Sturgeon begins by setting the rule to distinguish between a ‘delay’ and a ‘cancellation’. It does so by considering, in effect, the original planning of the flight as determinative and considering whether, of a given flight, the original planning is abandoned or not. If it is not abandoned, a seriously delayed flight will not constitute a ‘cancelled’ flight regardless of how the airline, the airport or other authorities characterise the flight. Realistically, this would have been the ‘weak spot’ the ECJ could have exploited to extend the definition of ‘cancellation’. In that scenario, accordingly, it would have saved itself the hassle of judicial drafting and simply made the events of the case – a seriously long delay – compensable by calling them a ‘cancellation’.
Curiously the ECJ takes another tack. It proceeds to rule that long delays should be compensable in the same terms as cancellations.
So it is time to slant the question:
The ECJ observes that passengers have a right of compensation in the event of a cancellation (para 40). “By contrast, it does not expressly follow from the wording of Regulation No 261/2004 that passengers whose flights are delayed have such a right.” (para 41)
Yes, it generally seems that, for instance, x does not “expressly follow” when a law makes no provision for x. So, it seems, it is time to play the judicial game of necessary implication.
“Nevertheless, as the Court has made clear in its case-law, it is necessary, in interpreting a provision of Community law, to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, Case C-156/98 Germany v Commission  ECR I-6857, paragraph 50, and Case C-306/05 SGAE  ECR I-11519, paragraph 34).”
In other words, if one does not like the wording, one may use the context and the objectives to justify some other form of imagined operation. This is apparently called “interpretation”.
But, apparently, objectives are not just objectives. They are operative law if you really want them to be:
“In that regard, the operative part of a Community act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (Case C‑298/00 P Italy v Commission  ECR I‑4087, paragraph 97 and the case-law cited).” (para 42)
This also means, inter alia, that we can rely on a slip-up in the drafting of the recitals to write in what the EU Parliament decided not to include in the operative text:
“It must be stated that, even though the possibility of relying on ‘extraordinary circumstances’, allowing air carriers to be released from the obligation to pay compensation under Article 7 of Regulation No 261/2004, is provided for only in Article 5(3) thereof, which concerns flight cancellation, Recital 15 in the preamble to the regulation nevertheless states that that ground may also be relied on where an air traffic management decision in relation to a particular aircraft on a particular day gives rise to ‘a long delay [or] an overnight delay’. As the notion of long delay is mentioned in the context of extraordinary circumstances, it must be held that the legislature also linked that notion to the right to compensation.” (para 43)
Yes, but the legislature considered the possibility of direct compensation for delay and rejected it: see further Written Observations of the Council of the European Union in Case C-629/10 (para 9).
There is also the small matter of the law with respect to recitals. It is well established, for instance, that “the preamble to a Community act has no binding legal force and cannot be relied on as a ground for derogating from the actual provisions of the act in question.” (See further Case C-162/97, Nilsson  ECR I-7477, para 54).
But, we must remember, this is not law but persuasion – rhetoric – and it is very important to lull the reader by negating any wild presumptions, like that which says we start and stay with, as best we can, the text:
“In those circumstances it cannot automatically be presumed that passengers whose flights are delayed do not have a right to compensation and cannot, for the purposes of recognition of such a right, be treated as passengers whose flights are cancelled.” (para 46)
In other words, it ought not to be presumed that we will not rewrite the legislation if we think that those writing it are fools.
“Next, it must be stated that, according to a general principle of interpretation, a Community act must be interpreted, as far as possible, in such a way as not to affect its validity (see, to that effect, Case C‑403/99 Italy v Commission  ECR I‑6883, paragraph 37). Likewise, where a provision of Community law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (see, inter alia, Case 187/87 Land de Sarre and Others  ECR 5013, paragraph 19, and Case C‑434/97 Commission v France  ECR I‑1129, paragraph 21).” (para 47)
This is the bit of authority that you cite, it seems, if you want a preferred objective to override the clear text of the legislation.
And – now you see it, now you don’t – this is where we substitute our opinion on the merits for that of the elected legislature:
“Given that the damage sustained by air passengers in cases of cancellation or long delay is comparable, passengers whose flights are delayed and passengers whose flights are cancelled cannot be treated differently without the principle of equal treatment being infringed. That is a fortiori the case in view of the aim sought by Regulation No 261/2004, which is to increase protection for all air passengers.” (para 60)
One last thing: add a speck of equal treatment (a European favourite). And, now you are done:
“In those circumstances, the Court finds that passengers whose flights are delayed may rely on the right to compensation laid down in Article 7 of Regulation No 261/2004 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.” (para 61)
That you have it. A silly decision, wrapped up as law but really a messy but transparent mix of politics and hubris.
Do you agree?