UK: Sturgeon and Delay Claims Under EC Regulation 261: An Update

Last Updated: 12 April 2010
Article by Sue Barham and Richard Gimblett

The industry has now had several months to adjust to the new landscape for delay claims under EC Regulation 261 which was created by the European Court of Justice ruling in Sturgeon v Condor/Böck v Air France published on 19 November 2009.

The Sturgeon judgment reinterpreted the Regulation so as to read into it an obligation on airlines to pay compensation of between €250-€600 for flight delays exceeding three hours. In doing so, the ECJ has essentially "rewritten" Regulation 261 by construing it in a manner which can never have been intended at the time this legislation came into effect in February 2005.

The Sturgeon judgment has been the focus of intense criticism from the airline industry and its professional advisers and of lobbying efforts with national regulatory authorities and the European Commission. The purpose of this note is not to rehearse the many criticisms which can be made of the judgment, or the many reasons why the ECJ erred badly in its reasoning. Those are only too well-known to airlines. Instead, this note will provide an update on developments since the judgment was published, will review the possibility of legal challenges to the judgment and will set out what options are realistically available to carriers who are now facing claims for compensation for flight delays under Regulation 261.

Status of the Sturgeon Case Itself

Carriers and National Enforcement Bodies ("NEBs") throughout EU Member States have been busy analysing how they should now react to the judgment and the industry has been assessing what legal avenues are available to overturn the judgment, or to restrict its application. Any legal challenge to the judgment - or to the validity of Regulation 261 as now construed - must be initiated in a national court of an EU Member State but will ultimately have to be referred to the ECJ for decision. An immediate line of attack was the Sturgeon case itself which, following the ECJ judgment, was remitted back to the Bundesgerichtshof (the German Federal Court of Justice). Condor, the defendant airline, tried to persuade the German Federal Court to refer the case back to the ECJ, arguing that the ECJ had exceeded its competence in its judgment. That referral would have given an immediate opportunity for a re-examination of the ECJ's reasoning. Unfortunately, on 19 February 2010, the Federal Court declined to refer the case back to the ECJ; the German Court took the view that the ECJ had answered the questions originally put to it when the case was referred for a preliminary ruling and that the case raised no further questions regarding the interpretation of Regulation 261. The Sturgeon case itself is therefore at an end. In light of the approach of the German Federal Court, which took the view that the ECJ judgment should be followed, it is now unlikely that either that court or any other court in Germany will be prepared to refer delay cases under Regulation 261 to the ECJ. The options open to carriers to defend delay claims in Germany are therefore limited.

As to the other part of the equation - the Böck v Air France claim - our understanding is that it remains in the Handelsgericht in Vienna, awaiting a decision.

What is the Position of the European Commission?

Individual carriers, industry associations and NEBs have all discussed the Sturgeon judgment and its consequences with the European Commission but so far the latter remains generally unsympathetic to carriers' predicament. That is perhaps inevitable. Regulation 261 is the EU's flagship air passenger rights regulation and the EU legislators are understandably reluctant to accept that it or the ECJ's interpretation of it might be flawed. It seems likely that the same consideration influenced the ECJ's obvious anxiety in Sturgeon to avoid the conclusion that the apparent unequal treatment of delays and cancellations within the provisions of the Regulation might render those provisions invalid, hence the Court's rewriting of the Regulation so as to erase that potential inequality.

The position of the Commission is that the Sturgeon judgment stands; that Regulation 261, properly construed, has provided for delay compensation since it first came into force in 2005; that carriers must now pay delay compensation; that NEBs must take enforcement action against carriers who fail to pay; and that failure on the part of any Member State's NEB to do so will represent a breach by that Member State of its obligations properly to enforce the Regulation.

Is Sturgeon Binding on National Courts?

There has been some commentary to the effect that, as a preliminary ruling of the ECJ, the Sturgeon judgment does not bind national courts other than those courts hearing the specific case in which the reference was made, the suggestion being that airlines can defend claims in, say, the English court by saying that Sturgeon does not apply. The position unfortunately is not that simple. A preliminary ruling represents the ECJ's interpretation of the EU legislation to which it relates; that legislation (as interpreted) is binding throughout EU Member States, and national courts may well take the view that they must therefore give effect to the preliminary ruling. Whilst carriers may try to argue the point in the lower courts, they should be prepared to meet some opposition to it.

Is Sturgeon Retrospective?

Technically the answer to this question is "yes". Preliminary rulings provide clarification as to the meaning and scope of EU legislation; the effect therefore is to rule on what the relevant regulation has meant from the date it first came into effect. The ECJ has power to apply a temporal restriction on its judgments to prevent this retrospective effect but did not do so in Sturgeon. In theory, therefore, claims for delay compensation going back to February 2005, when Regulation 261 came into effect, could now be brought, although there are differences of opinion as to whether any limitation period would apply to such claims and, if so, what that would be. Whilst the indications are that retrospective claims will not necessarily be encouraged by designated complaints handling bodies for 261 claims in all Member States, that does not mean that any such claims would be unfounded if they are pursued.

Will Regulation 261 be Amended?

The Sturgeon judgment has undoubtedly left Regulation 261 in a mess. When the ECJ's Advocate General first raised the question of whether the Regulation breached the principle of equal treatment by providing for compensation for flight cancellation but not for flight delay, her view was that the problem could not be resolved through a different construction, as the wording of the Regulation (at least in this respect) is unambiguous. At that stage, before the ECJ gave judgment, it was anticipated that the likely outcome would be a reopening and amendment of the Regulation. That remains a possibility, and amendment is now badly needed following the judgment. It is unclear, however, whether there is the necessary political will within the governments of Member States to engage in amendment of pro-consumer legislation (which seems to become ever more pro-consumer with every ECJ judgment relating to it), and to what extent there would in any event be consensus between Member States as to the form which any amended Regulation should take.

Is There Going to be a Legal Challenge to Sturgeon?

Any legal challenge will have to be initiated in national courts and then be referred to the ECJ for a ruling. There are two possible avenues of challenge: referrals to the ECJ in the context of an individual passenger delay claim; or some form of administrative action involving a National Enforcement Body. The latter course of action is likely to enable a more sophisticated and objective approach to the legal issues but, in either case, the legal arguments will be the same and will focus on the following:

  • Legal certainty: it is a fundamental principle of EU law that rules must be clear and precise so that it is possible to ascertain rights and obligations unequivocally. It is now impossible to discern the remedies relating to flight delays from a reading of Regulation 261, so far did the Sturgeon judgment depart from what the Regulation actually says.
  • Proportionality: EU law requires that legislation must be proportionate to the aims it seeks to achieve, and that measures must not go beyond what is necessary to achieve those aims. When Regulation 261 was being drafted, the notion that there ought to be compensation for flight delays was considered and rejected. The aim of Regulation 261 was to achieve a high level of protection for air passengers and to discourage commercial behaviour on the part of airlines which might cause inconvenience to passengers. However, in circumstances where passengers can already claim compensation for flight delays under the Montreal Convention 1999, it must be questioned whether providing for compensation also under Regulation 261 now provides a further remedy to passengers which is far out of proportion to the original objectives. A note of caution, however: the legality of a measure will only be jeopardised if it is manifestly unsuitable for achieving the particular aim, and so it will not be straightforward to persuade a court that the principle of proportionality is infringed by Regulation 261 as construed by Sturgeon.
  • Equal treatment: the principle at play here is that comparable situations must not be treated differently and different situations must not be treated the same. In Sturgeon, the Advocate General initially highlighted the potential infringement of that principle because, under Regulation 261, passengers whose flights are cancelled can claim compensation whilst delayed passengers - who may suffer similar inconvenience - have no such entitlement. The Advocate General took the view that the drafting of Regulation 261 is clear and unambiguous and so this apparent infringement could not be remedied through interpretation; amendment of the Regulation would be needed in order to correct the problem. Questions arise as to whether, having heard scant legal argument on the issue, the ECJ was correct in concluding that there is indeed an infringement of the principle of equal treatment, whether that undermines the validity of Regulation 261 from the date it came into force in 2005, and whether it was legitimate for the ECJ to try to correct the problem through an extraordinary re-interpretation of the existing drafting.
  • Inconsistency of Sturgeon with the judgment of the ECJ Grand Chamber in IATA and ELFAA v Department for Transport (2006): in the IATA case, the ECJ held that the delay remedies in Regulation 261 were not inconsistent with those in the Montreal Convention 1999. The Montreal Convention is supposed to constitute an exclusive liability regime, but the ECJ took the view that the Regulation 261 delay remedies cover matters which are not legislated for in the Montreal Convention and that there was therefore no conflict. However, at the time of the IATA case, everyone (the ECJ included) believed the only remedies for delayed flights under Regulation 261 were care and assistance, which the ECJ described as standard and immediate compensatory measures to redress the inconvenience which all delayed passengers experience. It is pretty apparent that the ECJ in the IATA judgment had no contemplation that compensation might be payable for delay under Regulation 261. Although the issue remains contentious, it can be argued that there was at least some basis for the ECJ's decision that the right to care and assistance under Regulation 261 is different in nature to the right to damages for delay which arises under Montreal and which is assessed on a case by case individual basis. However, Sturgeon has now conferred on delayed passengers an entitlement to monetary compensation; the consequence is that the Regulation arguably now encroaches much more obviously onto the territory already governed by the Montreal Convention, thereby giving rise to a potential conflict with international treaty obligations which must be resolved.

Of course there are challenges in inviting the ECJ to reconsider its judgment and to conclude that it made a mistake, and resistance to that notion can be expected. The prospects of success will be improved if carriers can point to new issues arising from the judgment, such as inconsistency with the IATA decision and perhaps questions of legal certainty and proportionality which need to be resolved. Whilst there undoubtedly needs to be a proper appraisal of the principle of equal treatment in the context of Regulation 261, it is possible that the ECJ's default position on that question will be that the question has already been adequately considered in the Sturgeon case and that it need not be revisited.

Legal challenges - individual references and a judicial review commencing in the English courts - remain likely. There is a great deal that is wrong with the Sturgeon decision and, whilst carriers should be under no illusion that any of the legal arguments are straightforward, there does need to be a proper debate before the ECJ as to whether Regulation 261, as re-construed, is invalid. In the meantime, however, carriers need to determine what approach they will take to claims for delay compensation under the Regulation.

How Should Carriers Deal with Claims for Delay Compensation?

Airlines should weigh the following factors in deciding what approach to take to claims for delay compensation under Regulation 261:

  • The cause of the delay should be assessed carefully. It may be possible to establish a defence of extraordinary circumstances; if so, that is a complete answer to the claim without any need to raise arguments as to whether Sturgeon should be followed or not.
  • Many airlines are resisting payment of delay compensation on the basis that the law is unclear following Sturgeon. That is a credible position to adopt, particularly pending the outcome of any legal challenges, albeit this approach may not always be regarded sympathetically by courts or by all NEBs.
  • The Sturgeon judgment is clearly wrong but it is possible that national courts may start from the premise that, absent a further referral to the ECJ for clarification, they are bound to apply it.
  • Sooner or later there will be a legal challenge and/or moves to amend Regulation 261 which may give some measure of clarity as to whether the Sturgeon judgment will be overturned or its scope diminished. If that were to happen, it will be impossible at that stage, in practical terms, for airlines to recover any delay compensation already paid out.
  • The approach to retrospective claims is likely to vary from one Member State to another. The Commission takes the view that the judgment applies retrospectively. However, in some Member States, there is no great encouragement of retrospective claims by the NEB or complaints handling body though that will not necessarily prevent such claims from being pursued.
  • Refusing to pay delay compensation risks provoking enforcement action from the relevant NEB. The approach of NEBs may vary; there is little appetite for enforcement action in the NEBs of some Member States though all are under pressure from the Commission to enforce the Regulation fully; in some Member States, the existing enforcement legislation would make it difficult for fines to be imposed on carriers for a failure to pay delay compensation; whilst other Member States are much more proactive about enforcement action. Carriers will need to make an assessment depending on the jurisdiction in which claims are being pursued.

In the event of claims being pursued through national courts, carriers can seek to defend claims on the basis of legal uncertainty, lack of proportionality, conflict with previous ECJ decision or inconsistency with the Montreal Convention liability regime. It is possible, depending on which Member State's courts are hearing the case, that the national court would want to refer such issues to the ECJ for a ruling. There are obvious costs implications for an airline in seeking to pursue its case through to the ECJ.

There is no "one size fits all" solution to how carriers should now respond to delay claims and airlines should be wary of advice to the contrary. An assessment is needed in each case of the legal position, the facts surrounding each particular claim and the extent to which circumstances call for a pragmatic, or a legal, resolution.

BLG's regulatory team would be happy to assist any airline wishing to explore its options in further detail.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.