United States: Seventh Circuit Affirms Dismissal Of EU 261 Claims

Direct Claims Under EU 261 Are Only Actionable In EU Member States

Sarah Passeri is an Associate in Holland & Knight's New York office


  • The Seventh Circuit affirms that a "direct claim" under EU 261 is actionable only in the appropriate designated administrative bodies or courts within EU Member States.
  • The text of the regulation clearly sets forth the two potential fora for enforcement of EU 261 claims, and the EU principles of "subsidiarity" and "legal certainty" reinforce the limited scope of the regulation's enforcement regime.

The ruling by the U.S. Court of Appeals for the Seventh Circuit in Volodarskiy v. Delta Airlines, Inc.1 follows numerous District Court opinions holding that EU 261 does not provide a right of action enforceable outside the EU Member States.2

Background of Volodarskiy v. Delta Airlines, Inc.

In Volodarskiy,3 the plaintiffs filed a putative class action against Delta Air Lines seeking to represent a class of passengers whose flights from EU Member States were canceled or delayed for more than three hours. The initial complaint alleged that Delta breached its contract by failing to comply with EU 261. Delta moved to dismiss on grounds of preemption under the Airline Deregulation Act (ADA) because the court would need to look outside the parties' contract to "policies external to the agreement." The District Court analyzed the holding of several recent decisions in the district4 and determined that EU 261 may be considered a self-imposed undertaking under the Wolens exception to ADA preemption only if it is incorporated by reference into the airline's contract of carriage. In this instance, Delta did not expressly mention or incorporate EU 261 into its International Conditions of Carriage. The District Court dismissed the complaint with leave to replead.

The plaintiffs amended their complaint to allege a direct claim under EU 261.5 Delta again moved to dismiss, arguing that the plaintiffs' claim was barred for three reasons:

  1. a direct claim is only actionable in an administrative body or court in an EU Member State
  2. the ADA preempts the plaintiffs' claim
  3. international comity requires dismissal

The District Court granted Delta's motion on the grounds that the plaintiffs could not maintain a direct action under EU 261 in the United States. However, for the sake of completeness, the court addressed and rejected Delta's additional arguments.

Enforcement Provisions Limit the Judicial Fora

The Seventh Circuit affirmed the District Court's decision that a direct claim against Delta is not actionable in the United States, but declined to address Delta's alternative bases for dismissal. In arriving at its decision, the Seventh Circuit closely analyzed the text of EU 261. The court noted two important provisions contained in the preamble to EU 261:

  1. "the obligation of each EU Member State to designate an administrative body to ensure compliance and enforcement of the regulation"
  2. the clarification that "the existence of the administrative-enforcement system 'should not affect the rights of passengers and air carriers to seek legal redress from courts under procedures of national law.'"6

The court questioned whether this language was intended to limit judicial enforcement of EU 261 claims exclusively to courts in EU Member States. Examining the regulation's enforcement provisions and applying principles of EU treaty law, the court concluded it does.

Article 16's enforcement provisions, titled "Infringements," designate only two potential fora for enforcement of EU 261 claims – a Member State's "designate[d] body responsible for [] enforcement" or "any other competent body designated by a Member State." The plaintiffs urged that the more general language in Article 15, which includes a reference to "proceedings before the competent courts or bodies," suggests that an action under EU 261 may be brought in a competent court anywhere in the world. The court rejected the plaintiffs' argument because, when read together with the limited enforcement scheme set forth in Article 16, the phrase "competent courts and bodies" is "best understood" to refer to those courts or bodies within an EU Member Nation.

As added support for its interpretation, the Seventh Circuit referenced the EU principles of "subsidiarity" and "legal certainty," finding that both principles "serve to reinforce our interpretation of the text of EU 261 and the limited scope of its enforcement regime."7 However, the Seventh Circuit declined to find the principle of "legal certainty" controlling, as it would preclude any U.S. court from applying EU law.

No Direct EU 261 Claims May Be Brought Against a Carrier in the U.S.

U.S. District Courts have consistently found that EU 261 claims for breach of contract are barred if the regulation is not incorporated in a carrier's contract of carriage. The Seventh Circuit's decision further clarifies that no direct EU 261 claims may be brought against a carrier in the U.S. The practical effect of the Seventh Circuit's decision is to preclude any non-contractual EU 261 claim against a carrier in the U.S. The debate over whether such claims are preempted by the ADA8 or the Montreal Convention9 – at least with respect to airlines that have not incorporated EU 261 into their contracts of carriage – may no longer be as relevant.


1. __ F. 3d __, No. 13-3521, 2015 WL 1600448 (7th Cir. Apr. 10, 2015).

2. See Giannopoulos v. Iberia Lineas Aereas de Espana, S.A., 17 F. Supp. 3d 743 (N.D. Ill. 2014) (holding that EU 261 does not create a private right of action in U.S.);Polinovsky v. Deutsche Lufthansa, No. 11-780, 2014 WL 958666 (N.D. Ill. Mar. 12, 2014) (same); Lozano v. United Cont'l Holdings, Inc., No. 11-8258, 2013 WL 5408652 (N.D. Ill. Sept. 26, 2013) (same).

3. No. 11-CV-00782, 2012 WL 5342709 (N.D. Ill. Oct. 29, 2012).

4. Compare Polinovsky v. Deutsche Lufthansa, No. 11-CV-780, 2012 WL 1080415 (N.D. Ill. Mar. 30, 2012) (finding that the plaintiffs' breach of contract claim fell within theWolens exception and was not preempted by the ADA because the carrier's contract specifically referenced EU 261); Giannopoulos v. Iberia Lineas Aereas de Espana, S.A., No. 11-CV-775, 2011 WL 3166159 (N.D. Ill. July 27, 2011) (same) with Polinovsky v. British Airways, No. 11-CV-779, 2012 WL 1506052 (N.D. Ill. Mar. 30, 2012) (finding breach of contract claim preempted because the carrier's Conditions of Carriage did not expressly incorporate EU 261); Lozano v. United Continental Holdings, Inc., No. 11-CV-8258, 2012 WL 4094648 (N.D. Ill. Sept. 17, 2012) (same).

5. Volodarskiy v. Delta Air Lines, Inc., 987 F. Supp. 2d 784 (N.D. Ill. 2013).

6. 2015 WL 1600448, at *5, quoting preamble ¶ 22.

7. Id. at *7.

8. See Giannopoulos, 17 F. Supp. 3d 743 (finding EU 261, although not expressly preempted, it was impliedly preempted by the ADA); Volodarskiy, 2012 WL 5342709 (finding ADA did not preempt EU 261 claims).

9. See, e.g., Giannopoulos v. Iberia Lineas Aereas de Espana, S.A., No. 11-CV-775, 2012 WL 5383271 (N.D. Ill. Nov. 1, 2012) (Montreal Convention does not preempt claims under EU 261).

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 Mondaq.com.

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

In association with
Related Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions