SKY-HIGH CONTROVERSYAND HIGH-FLYING CLAIMS? THE STURGEON CASE LAW IN LIGHT OF JUDICIALACTIVISM, EUROSCEPTICISMAND EUROLEGALISM

SKY-HIGH CONTROVERSYAND HIGH-FLYING CLAIMS? THESTURGEON CASE LAW IN LIGHT OF JUDICIALACTIVISM,EUROSCEPTICISMAND EUROLEGALISM

SACHA GARBEN*

1. Introduction

City hopping across the European continent to catch the carnival in Venice, tograb a concert in Vienna or to go on a pub-crawl in Prague is no longer theexclusive domain of the jetsetters. The competitive prices and no-frillsprocedures of European low cost airlines such as Ryanair, Easyjet and Wizzairhave made air travel an accessible means of transportation. In addition, thelow-budget air carriers have opened up new airports at places outside the mainmetropolitan areas and established new pan-European connections,sometimes even to the most outlying places in Europe.1 These developmentshave not only made intra-European mobility more feasible, facilitating thealready mobile European elite, they have also brought Europe closer to thebroader public, fostering a fundamental transformation in the way commoncitizens perceive distances and, as such, Europe.2 All this could be projected todeepen and promote European integration; it is therefore not surprising that, atleast initially, the low cost carriers and the EU had a loving relationship.3 Afterall, it was the EU that enabled the price-fighting airlines to operatecompetitively in the first place. Up until 1987, air transport was highlyregulated with closed national markets dominated by national airlines. In thewake of the Single European Act, the EU embarked on a 10-year process toderegulate the air transport sector. Directive 87/601/EEC on air fares wasadopted as a first step and in the following decade the EU successfullyliberalized the sector by means of various reform packages, allowing all air

* Academic Fellow at the London School of Economics and Political Science, Departmentof Law. The author wishes to thank B. de Witte, J. Bomhoff, A.P. van der Mei, S. van Alphen andK. Engel for their valuable comments on a previous draft. The usual disclaimer applies.

1. Mau and Büttner, “Transnationality”, in Immerfall and Therborn (Eds.), Handbook ofEuropean Societies, Social Transformations in the 21st Century (Springer), p. 542.

2. See Charlton, “Low cost airlines lend citizens a ‘European’ identity”, Café Babel, 17Aug. 2009, available at: <www.cafebabel.co.uk/article/31040/low-cost-airline-travel-european-identity-ryanair.html>.

3. See: “Low-cost founding fathers – How cheap air flights are bringing Europeanstogether”, The Economist, 27 Jan. 2005. Available at: <www.economist.com/node/3598896>.

Common Market Law Review 50: 15–46, 2013.© 2013 Kluwer Law International. Printed in the United Kingdom.

carriers to operate EU air services under a common licence system and tofreely determine their tariffs. The regime is now consolidated in Regulation1008/2008/EC establishing common rules for the operation of air services inthe EU.4

Increasingly, however, their love affair is turning sour. For example, recentyears have seen significant cracks in the relationship between Ryanair and theEuropean Commission. The Commission has been actively investigating thepotentially anti-competitive behaviour of Ryanair. In 2007, the Commissionblocked its planned takeover of Aer Lingus on the grounds that the combinedairline would have had a monopoly on too many routes.5 In the beginning of2012, the Commission announced new investigations into the effect ofdiscounts Ryanair had received at the Lübeck-Blankensee airport in Germanyand the Klagenfurt regional airport in Austria.6 As retaliation, Ryanair’scelebrity chief executive Michael O’Leary, who not so long agoenthusiastically campaigned for the Lisbon Treaty,7 has threatened to takelegal action against the European Commission’s travel policy, whichdiscourages Commission officials and guests from travelling on low-costairlines.8 However, competition rules work both ways for airlines, and Ryanairespecially has been active in seeing EU competition rules enforced against itscompetitors. The real bone of contention between the EU and the low costcarriers is not competition law, but the issue of passenger rights, and in thisfight the low cost carriers find support with all airlines more generally.

In 2004, the Parliament and the Council adopted Regulation 261/2004/ECestablishing common rules on compensation and assistance to passengers inthe event of denied boarding and of cancellation or long delay of flights.9

4. Directive 87/601/EEC, O.J. 1987, L 374/12; Regulation 1008/2008/EC on common rulesfor the operation of air services in the Community, O.J. 2008, L 293/3.

5. Summary of Commission Decision of 27 June 2007 declaring a concentration to beincompatible with the common market and the EEA Agreement (CaseCOMP/M.4439-Ryanair/Aer Lingus), O.J. 2008, C 47/9.

6. European Commission, State aid: Commission opens in-depth investigations in airtransport sector in Germany and Austria, RAPID Press Release IP/12/156, 22 Feb. 2012.

7. See Phillips, “Ryanair launches pro-Lisbon campaign”, EU Observer, 27 Aug. 2009,available at <euobserver.com/18/28588>.

8. Kanter, “Ryanair pokes E.U. officials on travel policy”, NewYork Times, 7 March 2012,available at <www.nytimes.com/2012/03/08/business/global/at-european-commission-austerity-doesnt-always-cover-air-travel.html?pagewanted=1&_r=1>.

9. The Regulation is based on an earlier measure, Council Regulation 295/91 of 4 Feb. 1991establishing common rules for a denied-boarding compensation system in scheduled airtransport, O.J. 1991, L 36/5.

CML Rev. 201316 Garben

The Commission has actively communicated and promoted the Regulation,for instance by adorning airport terminals across Europe with postersinforming passengers of their rights. Disgruntled travellers quickly started tomake use of these opportunities and airlines have been faced withever-increasing numbers of claims for assistance, care and compensation. Theairlines, who fought this legislation from the beginning,10 have reportedlyengaged in a consistent practice of completely ignoring claims, or invoking“extraordinary circumstances” as a ground to refuse to make payments, unlesstaken to court.11 The airlines’ discontent was aggravated by the ECJ’sjudgment of December 2008 in Wallentin-Hermanns, which held that theconcept of “extraordinary circumstances”, which allows airlines to derogatefrom their compensation duties in cases of cancellation, was generally not toinclude technical failure.12 When the “spectacular”13 judgment of the ECJ ofNovember 2009 in the Sturgeon case established that not only passengers ofcancelled flights and those who were denied boarding but also passengers whosuffered long delays could qualify for compensation of up to 600 EUR, theairlines’ fury went sky-high.14

The airlines are, however, not alone in their discontent with the Sturgeonjudgment. Many legal commentators and also national courts have eitherimplicitly or explicitly criticized the ruling.15 The crux of the controversy lies

10. Case C-344/04, The Queen, on the application of International Air TransportAssociation and European Low Fares Airline Association v. Department for Transport, [2006]ECR I-40 (IATA and ELFAA).

11. Brignall, “Thomas Cook won’t refund the cost of a taxi fare home”, The Guardian, 18Dec. 2010, Colbey, “European Court rules on airline compensation”, The Guardian, 21 March2009. Consumer surveys confirm this lack of compliance by practically all airlines. SeeVerbraucherzentrale, Fluggastrechte-Anspruch und Wirklichkeit. Ergebnisse einerOnline-Umfrage der Verbraucherzen- tralen (Potsdam, 2010), available at <www.vbz.de> andCentre Européen des Consommateurs France, Synthèse du rapport sur l’exercice des droits despassagers aériens en Europe: la mise à l’épreuve de la règlementation européenne, 7 Sept.2010, available at: <www.europe-consommateurs.eu>. See also C. van Dam, “Air passengerrights after Sturgeon”, 36 Air and Space Law (2011), 260.

12. Case C-549/07, Friederike Wallentin-Hermann v. Alitalia-Linee Aeree Italiane SpA,[2008] ECR I-11061.

13. C. van Dam, “Luchtvaartmaatschappijen zijn niet gek op passagiersrechten”, (2010)NJB, 672.

14. Joined Cases C-402 & 432/07, Christopher Sturgeon, Gabriel Sturgeon and AlanaSturgeon v. Condor Flugdienst GmbH (C-402/07) and Stefan Böck and Cornelia Lepuschitz v.Air France SA (C-432/07), [2009] ECR I-10923.

15. For critical accounts see Balfour, “Airline liability for delays: The Court of Justice of theEU rewrites EC Regulation 261/2004”, 71 Air and Space Law (2010), 73–74; Leffers, “Thedifference between cancellation and long delay under EU Regulation 261/2004”, (2010) TravelLaw Quarterly; Karsten, “Travel law”, in Twigg-Flesner, The Cambridge Companion toEuropean Union Private Law (Cambridge University Press, 2010), p. 215; Gimenez Rasero,“The capacity of the Court of Justice of the European Union to promote homogeneous

Sky-high controversy 17

in the fact that Regulation 261/2004 does not explicitly provide forcompensation in relation to delays, and that by holding the opposite the ECJhas engaged in judicial legislation and, allegedly, unwarranted judicialactivism. Although this is not the first time that such charges are levelledagainst the Court, the Sturgeon controversy is turning out to be somethingquite special, as large numbers of national courts, both lower and higher, fromseveral countries and legal systems, have expressed their doubts over thelegitimacy of the judgment. While some have diligently applied the judgment,others have sought to engage in dialogue with the ECJ by referring furtherquestions under the Article 267 TFEU procedure, with yet others blatantlydisregarding or openly condemning the ruling.This contribution is intended toshed light on the extent of the controversy, and to place the discussion in abroader perspective on judicial activism, Euroscepticism and so-calledEurolegalism.16

2. Regulation 261/2004 and its interpretation by the ECJ

Regulation 261/2004 grants passengers of cancelled flights several rights:17 a)to reimbursement or re-routing under Article 8,18 b) meals, accommodation

application of uniform laws: The case For air carrier liability for flight delays andcancellations”, (2011) NYU Transnational Notes, available at <blogs.law.nyu.edu/transnational/2011/10>, 31; Mendes de Leon, “De vulkaan in IJsland en de Sturgeon-zaakuit Luxemburg leiden tot uitbarstingen”, (2010) NJB, 1218–1225; Mok, “Het arrest Sturgeon;Een reactie”, (2010) NJB, 1234. The judgment has been defended by Van Dam, in the articlecited in note 13 supra and “Naschrift”, (2010) NJB, 962. See also Van Dam, op. cit. supra note11, 259–274.

16. Daniel Kelemen, Eurolegalism. The Transformation of Law and Regulation in theEuropean Union (Harvard University Press, 2011).

17. Art. 5: “1. In case of cancellation of a flight, the passengers concerned shall: (a) beoffered assistance by the operating air carrier in accordance with Article 8; and (b) be offeredassistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, inevent of rerouting when the reasonably expected time of departure of the new flight is at least theday after the departure as it was planned for the cancelled flight, the assistance specified inArticle 9(1)(b) and 9(1)(c); and (c) have the right to compensation by the operating air carrierin accordance with Article 7, unless: (i) they are informed of the cancellation at least two weeksbefore the scheduled time of departure; or (ii) they are informed of the cancellation between twoweeks and seven days before the scheduled time of departure and are offered re-routing,allowing them to depart no more than two hours before the scheduled time of departure and toreach their final destination less than four hours after the scheduled time of arrival; or (iii) theyare informed of the cancellation less than seven days before the scheduled time of departure andare offered re-routing, allowing them to depart no more than one hour before the scheduled timeof departure and to reach their final destination less than two hours after the scheduled time ofarrival. 2. When passengers are informed of the cancellation, an explanation shall be givenconcerning possible alternative transport. 3. An operating air carrier shall not be obliged to pay


and two phone calls under Article 9,19 and c) compensation for up to 600 EURunder Article 7.20 Where flights are delayed for more than two hours fordistances under 1500 km, three hours for distances between 1500 and 3500 or4 hours for distances over 3500, passengers can claim meals, accommodation

compensation in accordance with Article 7, if it can prove that the cancellation is caused byextraordinary circumstances which could not have been avoided even if all reasonable measureshad been taken. 4. The burden of proof concerning the questions as to whether and when thepassenger has been informed of the cancellation of the flight shall rest with the operating aircarrier”.

18. Art. 8: “1. Where reference is made to thisArticle, passengers shall be offered the choicebetween: (a)-reimbursement within seven days, by the means provided for in Article 7(3), of thefull cost of the ticket at the price at which it was bought, for the part or parts of the journey notmade, and for the part or parts already made if the flight is no longer serving any purpose inrelation to the passenger’s original travel plan, together with, when relevant,-a return flight tothe first point of departure, at the earliest opportunity; (b) re-routing, under comparabletransport conditions, to their final destination at the earliest opportunity; or (c) re-routing, undercomparable transport conditions, to their final destination at a later date at the passenger’sconvenience, subject to availability of seats. 2. Paragraph 1(a) shall also apply to passengerswhose flights form part of a package, except for the right to reimbursement where such rightarises under Directive 90/314/EEC. 3. When, in the case where a town, city or region is servedby several airports, an operating air carrier offers a passenger a flight to an airport alternative tothat for which the booking was made, the operating air carrier shall bear the cost of transferringthe passenger from that alternative airport either to that for which the booking was made, or toanother close-by destination agreed with the passenger”.

19. Art. 9: “1. Where reference is made to this Article, passengers shall be offered free ofcharge: (a) meals and refreshments in a reasonable relation to the waiting time; (b) hotelaccommodation in cases-where a stay of one or more nights becomes necessary, or-where a stayadditional to that intended by the passenger becomes necessary; (c) transport between theairport and place of accommodation (hotel or other). 2. In addition, passengers shall be offeredfree of charge two telephone calls, telex or fax messages, or e-mails. 3. In applying this Article,the operating air carrier shall pay particular attention to the needs of persons with reducedmobility and any persons accompanying them, as well as to the needs of unaccompaniedchildren”.

20. Art. 7: “1. Where reference is made to this Article, passengers shall receivecompensation amounting to: (a) EUR 250 for all flights of 1 500 kilometres or less; (b) EUR400 for all intra-Community flights of more than 1 500 kilometres, and for all other flightsbetween 1 500 and 3 500 kilometres; (c) EUR 600 for all flights not falling under (a) or (b). Indetermining the distance, the basis shall be the last destination at which the denial of boardingor cancellation will delay the passenger’s arrival after the scheduled time. 2. When passengersare offered re-routing to their final destination on an alternative flight pursuant to Article 8, thearrival time of which does not exceed the scheduled arrival time of the flight originally booked(a) by two hours, in respect of all flights of 1 500 kilometres or less; or (b) by three hours, inrespect of all intra-Community flights of more than 1 500 kilometres and for all other flightsbetween 1 500 and 3 500 kilometres; or (c) by four hours, in respect of all flights not fallingunder (a) or (b), the operating air carrier may reduce the compensation provided for inparagraph 1 by 50 %. 3. The compensation referred to in paragraph 1 shall be paid in cash, byelectronic bank transfer, bank orders or bank cheques or, with the signed agreement of thepassenger, in travel vouchers and/or other services. 4. The distances given in paragraphs 1 and2 shall be measured by the great circle route method”.


and phone calls.21 If the delay is over five hours, passengers have the samerights to reimbursement or re-routing under Article 8 as passengers ofcancelled flights. Compensation is however not provided for in the case ofdelays. The set of rights enjoyed by passengers under the Regulation isextensive and it was therefore not surprising that almost immediately after itsadoption, the International Air Transport Association (IATA) and theEuropean Low Fares Airline Association (ELFAA) challenged the validity ofthe Regulation in judicial review proceedings before the High Court inLondon.22 In the preliminary reference procedure before the ECJ, theclaimants argued that the Regulation was inconsistent with the MontrealConvention,23 breached the legal certainty principle and the general principleof equal treatment. The ECJ however was not convinced, and upheld theRegulation.

Soon after, the first compensation claims started to come before thenational courts in the Member States, requiring further interpretation of theRegulation. As Correia notes, the Court has generally adopted a“passenger-oriented” approach in most of these cases, interpreting theRegulation and the rights it provides purposively and expansively.24 Yet thiswas nothing compared to what followed in the Sturgeon case.25 The Sturgeonfamily incurred a delay of 25 hours with Condor Flugdienst and took the viewthat their flight had been not delayed but cancelled, which would allow them to

21. Art. 6: “1. When an operating air carrier reasonably expects a flight to be delayedbeyond its scheduled time of departure: (a) for two hours or more in the case of flights of 1 500kilometres or less; or (b) for three hours or more in the case of all intra-Community flights ofmore than 1 500 kilometres and of all other flights between 1 500 and 3 500 kilometres; or (c)for four hours or more in the case of all flights not falling under (a) or (b), passengers shall beoffered by the operating air carrier: (i) the assistance specified in Article 9(1)(a) and 9(2); and(ii) when the reasonably expected time of departure is at least the day after the time of departurepreviously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and (iii) when thedelay is at least five hours, the assistance specified in Article 8(1)(a). 2. In any event, theassistance shall be offered within the time limits set out above with respect to each distancebracket”.

22. IATA and ELFAA, cited supra note 10.23. Convention for the unification of certain rules for international carriage by air

(Montreal Convention), signed 28 May 1999.24. Correia, “The evolution of air passengers’ rights in European Union law”, 2 The

Aviation& Space Journal (2011), 8. See Case C-173/07,EmiratesAirlines, [2008] ECR I-5237;Case C-549/07, Friederike Wallentin-Hermann v. Alitalia-Linee Aeree Italiane SpA, [2008]ECR I-11061; Case C-294/10, Andrejs Eglitis and Edvards Ratnieks v. Latvijas RepublikasEkonomikas ministrija, judgment of 12 May 2012, nyr; Case C-22/11, Finnair Oyj v. TimyLassooy, judgment of 4 Oct. 2012, nyr; and Case C – 321/11, Germán Rodríguez Cachafeiro,María de los Reyes Martínez-ReboredoVarela-Villamor v. Iberia, LíneasAéreas de España SA,judgment of 4 Oct. 2012, nyr.

25. Sturgeon and Böck, cited supra note 14. As Van Dam words it, the previous judgments“were only scratches as compared to the black eye caused by Sturgeon”. Van Dam, op. cit. supranote 11, 262.


claim compensation under the Regulation. The Bundesgerichtshof referredtwo preliminary questions to the ECJ inquiring whether some measure or typeof delay could be regarded as cancellation for the purposes of the Regulation.The arguments of the parties as well as the preliminary questions clearly showthat everyone involved was under the assumption that compensation wasexcluded in the case of delay. Indeed, this is not only clear from the structureand wording of the Regulation, it is also confirmed in the Commission’sexplanatory memorandum to its original proposal for the Regulation, where itwas noted that:

“cancellation by an operator . . . represents a refusal to supply the servicefor which it has contracted, except in exceptional circumstances beyond itsresponsibility…. For the passenger, cancellation in ordinarycircumstances, for commercial reasons, causes unacceptable trouble anddelay, particularly when not warned in advance. Although passengerssuffer similar inconvenience and frustration from delays as from deniedboarding or cancellation there is a difference in that an operator isresponsible for denied boarding and cancellation (unless for reasonsbeyond its responsibility) but not always for delays. Other common causesare air traffic management systems and limits to airport capacity.[Therefore] the Commission considers that in present circumstancesoperators should not be obliged to compensate delayed passengers”.26

The discussion therefore focused on whether certain delays could be qualifiedas de facto cancellations, for example because of their long duration. The ECJresolutely rejected that possibility, holding that “cancelled flights and delayedflights are two quite distinct categories of flights”. But then, the ECJ tookeveryone by surprise by holding that although it did not “expressly followfrom the wording” of the Regulation that passengers of delayed flights had aright to compensation, these passengers are to be treated for the purposes ofthe application of the right to compensation, as passengers whose flights arecancelled; they may thus rely on the right to compensation laid down inArticle7 “where they suffer, on account of such flights, a loss of time equal to or inexcess of three hours, that is to say when they reach their final destinationthree hours or more after the arrival time originally scheduled by the aircarrier”.27

The Court based this ground-breaking decision on numerousconsiderations, some more persuasive than others. Firstly, it considered thatalthough the possibility of relying on “extraordinary circumstances” releasing

26. European Commission, Proposal for a regulation of the European Parliament and of theCouncil establishing common rules on compensation and assistance to air passengers in theevent of denied boarding and of cancellation or long delay of flights, COM(2001)784 final.

27. Para 61 of the judgment in Sturgeon and Böck, cited supra note 14.


airlines from having to pay compensation under Article 7 was provided foronly in Article 5(3) concerning flight cancellation, recital 15 in theRegulation’s preamble nevertheless stated that that ground could also berelied on “where an air traffic management decision in relation to a particularaircraft on a particular day gives rise to a long delay [or] an overnight delay”.The Court posited the tenuous claim that “as the notion of long delay ismentioned in the context of extraordinary circumstances, it must be held thatthe legislature also linked that notion to the right to compensation”. It is aninventive argument, but not very convincing. First of all, this reasoningattaches too much weight to the preamble, to justify a conclusion that iscontrary to the actual provisions of the Regulation. In the aforementionedIATA and ELFAA case, the ECJ had specifically stated that while a preamblemay explain the latter’s content, it cannot be relied upon as a ground forderogating from the actual provisions of the measure in question. Secondly, inthat same case, the ECJ had held that even though there were someinconsistencies between the preamble and actual provisions of the Regulation,this did not affect its legality as Articles 5 and 6 were “themselves entirelyunambiguous”. Now, it came to a completely different reading of thesesupposedly unambiguous Articles,28 while it is quite clear from theRegulation’s preamble, operative part, explanatory memorandum and broaderpolitical context that any ambiguity here is not an expression of the will of thelegislature to provide compensation also for delays. Had the legislaturedesired to do so, it can be safely assumed that it would have simply providedfor it in Article 6.29

The Court’s second line of reasoning is based on the general principle ofequal treatment, which requires that comparable situations must not be treateddifferently and that different situations must not be treated in the same wayunless such treatment is objectively justified, and it is far more cogent than thefirst. Comparing the situation of passengers whose flights are delayed withthat of passengers whose flights are cancelled, the Court considered that thedamage redressed by compensation is that of a loss of time, which is equallysuffered by both types of passengers. Hence, it would amount to anunjustifiable difference in treatment to deny compensation to passengers ofdelayed flights, especially since the aim sought by the Regulation is to increaseprotection for all air passengers. But although this finding is quite persuasive,the Court is skating on thin ice here, as it seeks not to invalidate the

28. See on this point also Mendes de Leon, op. cit. supra note 15, 1221.29. Indeed, both the European Parliament and the Council argued that compensation should

not be made available in the case of delays, in the hearing on the follow-up cases of Nelson andTUI, discussed further below. The Commission, however, seems to have changed its view andnow supports the interpretation given by the ECJ. See C. van Dam, Sturgeon’s Fate. Part 1:TheHearing, 23 March 2012, available at: <airpassengerrights.blogspot.com>.


Regulation, but to interpret it expansively. Advocate General Sharpston alsoregarded the exclusion of delays irreconcilable with the principle of equaltreatment, but she concluded that it would not be possible to solve thisincompatibility by interpreting the Regulation so as to provide compensationalso in the case of delays and that instead this violation affected the validity ofthe Regulation.30 Advocate General Sharpston felt that the underlyingproblem could not “be ‘fixed’ by interpretation, however constructive”,31

opining that it was impossible for the Court to provide a particular time limitafter which passengers of delayed flights qualified for compensation:

“Any numerical threshold for qualification for a right delineates twogroups – the fortunate and the unfortunate – and in establishing thatthreshold the legislator must be careful not to infringe the principle ofequal treatment. The legislator has the right to pick a figure and thendefend it, to the extent that its choice is challenged as infringing thatprinciple, as objectively justifiable. The actual selection of the magicfigure is a legislative prerogative. To the extent that any figure is to someextent arbitrary, its arbitrariness is covered by that prerogative (the marginof legislative discretion). Thus, the Community legislator can select aparticular time-limit (23 and a half hours, 24 hours, 25 hours, or 48 hours– whatever it be) triggering a right to compensation. The Court cannot.Any figure one cared to pick would involve reading into the Regulationsomething it plainly does not contain and would be a judicial usurpation ofthe legislative prerogative”.32

It is probably in an attempt to sidestep this fundamental objection that theCourt construed the elaborate first argument on the basis of the preamble thatthe legislature in fact had somehow intended to provide for compensation incases of delay. In the words of Lenaerts and Gutiérrez-Fons, the ECJ deployedthe recital 15 argument “to counter the separation of powers objection”.33

3. The reception of the Sturgeon judgment

3.1. Scholarly reactions

Above and beyond the predictable strong reactions from the directly affected,i.e. consumer groups applauding the ruling and air carriers fiercely critical,

30. Opinion of A.G. Sharpston of 2 July 2009 in Sturgeon and Böck, cited supra note 14.31. Para 97 of the Opinion, ibid.32. Paras. 93 and 94 of the Opinion, ibid.33. Lenaerts and Gutiérrez-Fons, “The constitutional allocation of powers and general

principles of EU law”, 47 CML Rev. (2010), 1637.


the Sturgeon judgment has triggered a considerable amount of controversy.Indeed, as Sturgeon is “one of the most interesting recent judgments exploringthe boundaries of the ECJ’s function vis-à-vis the political process”34 it has asignificant importance beyond the realms of travel and consumer protectionlaw. Recent years have seen a clear rise of concerns among national authoritiesand judiciaries, and within European civil society, about the Court’s judicialactivism.35 Also EU legal academics have become increasingly critical of theECJ’s approach. Although the debate on the ECJ’s alleged activism iseffectively an old one,36 it seems to be gaining momentum. A large part of thecriticism is directed at instances when the market freedoms are (perceived as)being applied to the detriment of social values, as for example in Viking andLaval.37 But also the application of general principles of EU law (perhaps evenfurthering social rights), reaching outcomes that seem to be circumventing thewill of the European legislature, has given rise to widespread criticism, such asin the much-discussedMangold case.38 The criticism of “activist” judgments

34. Baeten, “Judging the European Court of Justice: The jurisprudence of Aharon Barakthrough a European lens”, 18 CJEL (2011), 148.

35. Dawson, Presentation at the Conference “Judicial activism at the Court of Justice”,organized by Maastricht University, 10–11 Oct. 2011. See Herzog and Gerken, “Stoppt denEuropaischen Gerichtshof ”, Frankfurter Allgemeine Zeitung, 2008, p. 8 and De Waele,Rechterlijk Activisme en het Europees Hof van Justitie (Boom Juridische Uitgevers, 2009). Forthe purposes of this paper, activism will be defined as the Court engaging in broad andteleological interpretation beyond the text (and/or likely intention) of the law.

36. Rasmussen,On Law and Policy in the European Court of Justice. A Comparative Studyin Judicial Policy-Making (Martinus Nijhoff, 1986). See also De Waele, op. cit. previous note,p. 2; Tridimas, “The Court of Justice and judicial activism”, (1996) EL Rev., 199–210. For adefence of the ECJ’s approach, see Arnull, “The European Court and judicial objectivity: Areply to Professor Hartley”, (1996) LQR, 411–423 and Albors-Llorens, “The European Courtof Justice, more than a teleological court”, (1999) CYELS, 373–398.

37. Case C-438/05, The International Transport Workers’ Federation and The FinnishSeamen’s Union (Viking), [2007] ECR I-10779 and Case C-341/05, Laval un Partneri, [2007]ECR I-11767. See Craig and De Búrca,EULaw.Text, Cases andMaterials (OUP, 2011), p. 804;Joerges, “A new alliance of de-legalisation and legal formalism? Reflections on responses to thesocial deficit of the European integration project”, 19 Law and Critique (2008), 246;Londstrom, “Service liberalization in the enlarged EU: A race to the bottom or the emergenceof transnational political conflict”, 48 JCMS (2010), 1307; Belavusau, “The case of Laval in thecontext of the post-enlargement EC law development”, 9 German Law Journal (2008), 2279;Reich, “Free Movement v. Social Rights in an Enlarged Union-the Laval and Viking Casesbefore the ECJ”, 9 German Law Journal (2008), 159; Kilpatrick, “Laval’s regulatoryconundrum: Collective standard-setting and the Court’s new approach to posted workers”, 34EL Rev. (2009), 844.

38. Case C-144/04, Mangold [2005] ECR I-9981. See for interesting discussions of thejudgment: Beyer-Katzenberger, “Judicial activism and judicial restraint at theBundesverfassungsgericht: Was the Mangold judgment of the European Court of Justice anultra vires act?”, Editorial, 11 ERA Forum (2011), 517–523 and Dougan, “In defence ofMangold?”, in Arnull et al. (Eds.), A Constitutional Order of States? Essays in EU Law inHonour of Alan Dashwood (Hart Publishing, 2011), pp. 219–244.


often stems either from a general (horizontal) separation of powers objectionthat entails that the unelected judiciary should respect the prerogatives of thedemocratically accountable legislature, or from a federal (vertical) division ofpowers objection that when the ECJ issues activist judgments, this tends toadvance the reach of EU law to the detriment of national powers. A thirdoften-raised objection is directed at the quality of legal reasoning, which tendsto be poor in these cases. Especially the first and the third objections play animportant role in the Sturgeon controversy.

Indeed, the Court’s reasoning in Sturgeon “is rather thin and not based onfirm methodological ground”.39 As pointed out above, the trouble lies not somuch in finding the Regulation at odds with the principle of equal treatment.This principle enjoys a higher ranking in the hierarchy of norms, and it is clearthat secondary law can be required to comply with it. Rather, it lies in thechoice not to invalidate the relevant provisions of the Regulation, butupholding it and effectively writing in a new provision. The Court, scramblingto find arguments to justify this bold move, came up with the feeble argumentthat the legislature itself had linked compensation to long delays, becauserecital 15 of the preamble mentioned that extraordinary circumstances werealso deemed to exist “where an air traffic management decision in relation toa particular aircraft on a particular day gives rise to a long delay [or] anovernight delay”. Judicial activism and weak legal reasoning go hand in handhere. The Court’s approach is in stark contrast to Advocate GeneralSharpston’s Opinion, which rigorously and convincingly sets out the reasonswhy the exclusion of compensation for passengers of delayed flights is indeedillegitimate, but also why the Court cannot “fix” this by constructiveinterpretation without crossing the borders of the judicial function andtrespassing on the legislature’s prerogative.

Reactions from commentators have varied. On the one hand, Lenaerts andGutiérrez-Fons have defended the approach of the ECJ and do not seem to feelthere is any tension with the separation of powers objection, as they areconvinced by the Court’s reasoning: “… the ECJ did not encroach upon theprerogatives of the EU legislature but simply limited itself to clarifying alegislative choice already contained in Regulation No. 261/2004, namely thedistinction between ‘delay’ (inferior to three hours) and ‘long delay’ (equal toor in excess of three hours)”.40 Van Dam has also supported the judgment,arguing that it was within the Court’s discretion to give preference to theprinciple of equal treatment after balancing it against the legal certaintyprinciple, and that the ECJ was right not to put too much emphasis on the

39. Riesenhuber, “Interpretation and judicial development of EU private law. The Exampleof the Sturgeon-Case”, 6 European Review of Contract Law (2010), 384.

40. Lenaerts and Gutiérrez-Fons, op. cit. supra note 33, 1637.


legislative history of the Regulation.41 Stuyck finds it remarkable that the ECJreaches a contra legem interpretation of the Regulation on the basis of itspreamble, and finds that the judgment stands in contrast to the Court’s morereserved attitude in other areas of consumer protection, but does not explicitlycondemn the ruling.42 Many others, however, are of the opinion that thejudgment is problematic from a constitutional perspective, and that the ECJwould have done better to follow the Opinion of the Advocate General. Suchcommentators as Arnold and Mendes de Leon, Haak, Leffers, Mok andStaudinger all tend to agree that the Court has crossed the boundaries of itsjudicial function by extending the Regulation beyond its original meaning andwording, illegitimately undoing the deliberate compromise reached in thelegislative process to make a distinction between the responsibilities ofairlines in the situation of cancelled flights and delayed flights, whichmoreover was clearly explained in the explanatory memorandum of theEuropean Commission.43

An additional criticism levelled against the judgment is that it conflicts withthe Montreal Convention.44 The Convention arranges, arguably in anexclusive fashion, the right to compensation in cases of delay. Article 29provides:

“In the carriage of passengers, baggage and cargo, any action for damages,however founded, whether under this Convention or in contract or in tort orother- wise, can only be brought subject to the conditions and such limitsof liability as are set out in this Convention without prejudice to thequestion as to who are the persons who have the right to bring suit andwhat are their respective rights. In any such action, punitive, exemplary orany other non- compensatory damages shall not be recoverable.”

This provision limits the compensation of damages to the actual damagesuffered (compensatory damages), explicitly excluding any other form of

41. Van Dam, op. cit. supra note 11, 265.42. Stucyk, “Indemnisation pour les passagers de vols retardés en Europe”, 7 La Semaine

Juridique, Edition Générale (2010), 201.43. Arnold and Mendes de Leon, “Regulation (EC) 261/2004 in the light of the recent

decisions of the European Court of Justice: Time for a change?!”, (2010) Air and Space Law,100–101; Haak, “De rol van het Europees Hof van Justitie in het passagiersvervoer door delucht”, (2010) Tijdschrift voor Privaatrecht, 493–520; Mok, op. cit. supra note 15; Staudinger,“Das Urtel des BGH in den Rechtssachen Sturgeon und Böck”, 1 Reise Recht Aktuell (2010),12. For an overview see: M. van Dam,De bus komt zo, toch? Een onderzoek naar de rechten vanpassagiers bij vertraging en annulering in het Nederlandse stads- en streekvervoer inverhouding tot de Europese verordeningen voor passagiersrechten, Erasmus UniversityRotterdam, Unpublished Master thesis (2011), p. 11, available at<njblog.nl/wp-content/uploads/2011/09/Scriptie-M-R-van-Dam.pdf>.

44. See on this point Leffers and Mendes de Leon, both op. cit. supra note 15.


damages such as standardized non-compensatory damages. Some authorshave argued that the Regulation is at odds with this provision, and they havebeen critical of the Court for not sufficiently recognizing the fact that the EUand its Member States are bound by international law, and that the Regulationshould therefore comply with the Montreal Convention.45 Van Dam, on theother hand, opines that the Regulation and Sturgeon are not incompatible withMontreal’s exclusivity, pointing out that the ECJ throughout its case law hasemphasized that compensation for delay is compensatory, namely for “loss oftime”.46 This damage is identical yet real for all passengers concerned, and“Sturgeon compensation is therefore clearly compensatory and neitherpunitive nor exemplary or non-compensatory”.

3.2. Courts in Germany, the UK and the Netherlands: Sites of controversy

National courts, faced with a flood of cases arising out of compensationclaims denied by the stubborn airlines, have also shown their discomfort withthe Sturgeon judgment by referring a stream of preliminary questions to theECJ. Formally they are asking for clarification of the judgment, but it is quiteclear that this is their way of entering into dialogue with the ECJ, in realityexpressing their concerns and asking the Court to revisit its case law. Since theWünsche judgment, it has been settled case law that “the authority of apreliminary ruling does not preclude the national court to which it is addressedfrom properly taking the view that it is necessary to make a further referenceto the Court of Justice”, for instance “when the national court encountersdifficulties in understanding or applying the judgment, when it refers a freshquestion of law to the Court, or again when it submits new considerationswhich might lead the Court to give a different answer”.47 However, inWünschethe Court also expressly held that “it is not permissible to use the right to referfurther questions to the Court as a means of contesting the validity of thejudgment delivered previously, as this would call in question the allocation ofjurisdiction as between national courts and the Court of Justice”.48 Since someof the references could be considered contrary to theWünsche doctrine, it willbe very interesting to see how the ECJ is going to respond.

It should be noted that the issue seems to divide the national judiciaries, asnot all courts have decided to stay proceedings to await a further ruling by theECJ. Some courts have actually faithfully applied Sturgeon, while others havedecided not to apply it at all.The result is a patchwork of “legal pockets” where

45. Mendes de Leon, op. cit. supra note 15, 1223.46. Van Dam, op. cit. supra note 11, 270.47. Case 69/85, Wünsche v. Germany, [1986] ECR 947, para 15.48. Ibid.


the Regulation practically has a different legal force within and amongst theMember States. Legal uncertainty reigns: some passengers will win andreceive compensation whereas others from the same delayed flight might losetheir claim, all depending on the choice of court before which proceedings arebrought. From the viewpoint of the ECJ’s signature principles of uniformityand effet utile of EU law, this is very worrying.

The first national court to refer a preliminary question regarding theSturgeon judgment was the German Amtsgericht Köln, in the Nelsonreference.49 The three preliminary questions focus on the relationshipbetween Sturgeon, the Montreal Convention, and the IATA and ELFAA case.Most strikingly, the third question asks straightforwardly how “theinterpretative criterion” underlying Sturgeon may be reconciled with theinterpretative criterion that the Court of Justice applied to that Regulation inIATA and ELFAA. The Amtsgericht has clearly picked up on the inconsistencyin the Court’s approach to the preamble and its role in interpreting theRegulation.The judgment can be seen as a strong criticism of Sturgeon and thequality of its legal reasoning, as it does not ask for a clarification so much asa justification or revision of that judgment.50 This first referenceforeshadowed a flood of cases from other German courts. In January 2011, theBundesgerichtshof referred two preliminary questions in the Folkerts case,inquiring whether passengers have a right to compensation in the case wheredeparture was delayed for a period below the limits specified in Article 6(1) ofthe Regulation, but arrival at the final destination was at least three hours laterthan the scheduled arrival time.51 Although the Bundesgerichtshof was thefirst court to apply Sturgeon, a mere three weeks after its rendering,52 and thequestions are more deferential than those referred by the Ambtsgericht Köln,this reference could still be seen as a challenge to Sturgeon, albeit moreimplicit. Sturgeon is crystal clear on the point that passengers of delayedflights qualify for compensation where they suffer a loss of time equal to or inexcess of three hours, “that is to say when they reach their final destination

49. Reference for a preliminary ruling from theAmtsgericht Köln (Germany), lodged on 13Dec. 2010, Case C-581/10, Emeka Nelson, Bill Chinazo Nelson, Brian Cheimezie Nelson v.Deutsche Lufthansa AG, later joined to Case C-629/10, TUI Travel plc and Others v. CivilAviation Authority; judgment in the joined cases was given on 23 Oct. 2012, nyr.

50. In May 2011, the Amtsgericht Geldern referred similar questions on the relationshipbetween the Montreal Convention and Sturgeon. See: Reference for a preliminary ruling fromthe Amtsgericht Geldern (Germany), lodged on 24 May 2011, Case C-255/11, Nadine Büschand Björn Siever v. Ryanair Ltd, pending.

51. Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on11 Jan. 2011, Case C-11/11, Société Air France S.A. v. Heinz-Gerke Folkerts and Luz-TerezaFolkerts, pending.

52. Exactly three weeks after Sturgeon: BGH 10 Dec. 2009, Xa ZR 61/09. SeeVan Dam, op.cit. supra note 11, 273.


three hours or more after the arrival time originally scheduled by the aircarrier”.53Sturgeon is on this point an acte éclairé, and there is no real need forfurther explanation.54

Much less implicit is the Germanwings reference from the LandgerichtKöln of 5 August 2011.55 This most striking of references asks:

“Is it compatible with the principle of the separation of powers in theEuropean Union if, in order to remedy what would otherwise be unequaltreatment, Regulation No 261/2004 is interpreted as meaning that apassenger who is affected by a mere delay of more than three hours isentitled to compensation under Article 7 of the Regulation, although theRegulation provides for this only in the case of denied boarding orcancellation of the booked flight but, in the event of delay, restricts thepassenger’s claims to assistance under Article 9 of the Regulation and, ifthe delay is for more than five hours, also assistance under Article 8(1)(a)of the Regulation?”

It is not very often that we get to see such open warfare between nationalcourts and the ECJ, and if we do, it is usually played out at the highest levelbetween national constitutional or supreme courts and the European Court.Here we witness a rebellion of relatively lower judges, who are traditionallywell disposed and more receptive than the higher courts to the ECJ, its claimsof supreme authority and its progressive case law.

Importantly, this resistance is not only coming from Germany. As Pragerstates, “also within the English jurisdiction Sturgeon gave rise to astonishmenton the part of lawyers and howls of anguish on the part of airlines”.56 On 24December 2010, the High Court of Justice of England and Wales, Queen’sBench Division made a preliminary reference to the ECJ in a case brought byTUI Travel, British Airways, Easyjet and IATA against the Civil AviationAuthority (UK enforcement body), asking in essence whether Sturgeon is

53. Emphasis added.54. In August 2011, the Bundesgerichtshof referred another two cases to the ECJ, with

questions identical to the Folkerts reference. Reference for a preliminary ruling from theBundesgerichtshof (Germany), lodged on 26 Aug. 2011, Case C-437/11, Ekkerhard Schauß v.Transportes Aéreos Portugueses SA, pending and Reference for a preliminary ruling from theBundesgerichtshof (Germany), lodged on 26 Aug. 2011, Case C-436/11, Sandra Schüsslbauer,Martin Schüsslbauer, Maximilian Schüsslbauer v. Iberia LineasAéreas de España SA, pending.In November 2011, theAmtsgericht Düsseldorf joined in and referred the very same question tothe ECJ. Similar questions had also been referred already in March 2011 by the PortugeseTribunal de Pequena Instância Cível de Lisboa, lodged on 8 July 2011, Case C-365/11, JoãoNuno Esteves Coelho dos Santos v. TAP Portugal, (removed from the register on 13 Feb. 2012).

55. Reference for a preliminary ruling from the Landgericht Köln (Germany), lodged on 5Aug. 2011, Case C-413/11, Germanwings GmbH v. Amend, pending.

56. Prager, “Pioneering passengers’ rights: Legislation and jurisprudence”, 12 ERA Forum(2011), 308.


indeed the applicable law.57 Like the German courts, by asking questions thathave already been clearly answered in Sturgeon, the High Court seemed to bepressing the ECJ to either revise its case law or to provide additionaljustifications for its judgment. As a consequence of the reference, Sturgeontype payments are generally not being made within the English jurisdiction atpresent and the law has been said to be “in a state of flux”.58 Although theOrder made by the High Court only applies to the judicial review proceedingstaken against it and is not a legal general stay of unrelated proceedings inrespect of compensation for delay, UK Courts were likely to suspend anyclaim brought in this regard until the High Court has given a ruling,incorporating the ECJ’s judgment – which in the meantime has been handeddown.59 The fact that the High Court decided to stay the proceedings and referthese questions to which there was already an answer was grist to the airlines’mill. It allows them to further stall the process, and refrain from paying outcompensation, while it also strengthens their cases before other courts, givingextra weight to their argument that the situation is unclear.

Indeed, this can be seen with some Dutch courts that had initially faithfullyfollowed Sturgeon. Although the Netherlands is far from the Europhilecountry it once used to be, the Dutch courts are usually still very dutiful andcompliant when it comes to European law.60 And indeed, there is a generaltendency to follow Sturgeon, but it is noteworthy that there are several courtsthat have expressed their doubts, either by referring further questions or bydisregarding the ruling. The first court to decide on a Sturgeon-related casewas theGerechtshofAmsterdam (Amsterdam Court of Appeal), which simplyapplied the ruling without further ado.61 Five months later, the Haarlemdistrict court followed the same approach in a case involving EUclaim andChina Southern Airlines, dismissing the argument that Sturgeon was in

57. Reference for a preliminary ruling from High Court of Justice (England & Wales),Queen’s Bench Division (Administrative Court), lodged on 24 Dec. 2010, Case C-629/10, TUITravel plc, BritishAirways plc, easyJetAirline Co. Ltd, InternationalAirTransportAssociation,The Queen v. Civil Aviation Authority, later joined to the Nelson case, see note 49 supra.

58. Prager, op. cit. supra note 56.59. Answer given by Mr Kallas on behalf of the Commission to Parliamentary Questions

from Brian Simpson, 18 Apr. 2011, P-003161/2011. See also Ian Pollock, Delay complaintsmay resume, court suggests, BBV News, 16 Feb. 2011, available at: <www.bbc.co.uk/news/business-12472056>.

60. On the reasons for the open attitude towards EU law in the Netherlands see: De Witte,“Do not mention the word: Sovereignty in two Europhile countries, Belgium and theNetherlands”, in Walker (Ed.), Sovereignty inTransition (Hart Publishing, 2003), pp. 351–366;Claes and De Witte, “The European Court and national courts-doctrine and jurisprudence:Legal change in its social context-report on the Netherlands”, EUI Working Paper, RSC No.95/26. (European University Institute, 1995).

61. GerechtshofAmsterdam, 16 Feb. 2010, X v. Surinaamse Luchtvaart Maatschappij N.V.,200.017.721/01, LJN BM5267.


conflict with IATA and ELFAA.62 However, in October 2010, the district courtof Breda came to a different conclusion. The Van de Ven family had incurreda 27-hour delay for which KLM refused to pay compensation, arguing that theRegulation was contrary to Article 29 of the Montreal Convention. The Bredadistrict court considered that the judgments of theAmsterdam Court ofAppealand the Haarlem District Court had not clarified this question, nor had it beendiscussed in the IATA and ELFAA case. Considering the fact that thisconcerned a question on the validity of the Regulation, the court saw itselfobliged – following Foto-Frost – to make a preliminary reference.63 Since thisquestion had not been addressed before, the district court did not deem itincompatible with the Wünsche doctrine to refer.64 Although this referenceshould not be seen as a case of rebellion, but a bona fide question forclarification showing a diligent national court skilfully engaging with thebroad range of ECJ case law on the substantive issue as well as the proceduralquestion about when to make a preliminary reference, this reference was notnecessary.

Furthermore, the reference has added to the confusion and as such hasstrengthened the case of the airlines in their fight against Sturgeon and theRegulation more generally. This can be seen from a subsequent judgment ofthe Haarlem district court,65 which had applied Sturgeon without anydifficulties only a few months earlier. In this later judgment, the Haarlemdistrict court took into account the preliminary reference of the High Court ofEngland and Wales as well as the judgment of the Breda district court. Whileit still insisted that the ECJ had already implicitly ruled on Article 29Montreal, and while it even pointed out that it considered these references bythe High Court and Breda district court to be strictly speaking in violation ofthe Wünsche doctrine, it also referred to the legal uncertainty that had comeabout as a result of these divergent approaches. As such, and since the districtcourt admitted that it did in fact see some merit in the argument that theRegulation was incompatible with Article 29 Montreal, it felt that it wasdesirable for the Hoge Raad der Nederlanden (Supreme Court of theNetherlands) to rule on the issue. The district court hence signalled that itwould request the Procurator General of the Supreme Court to take on the casein cassation in the interest of the uniform application of the law.

62. Rechtbank Haarlem, Sector Kanton, 15 July 2010, EUclaim BV v. China SouthernAirlines Company Limited 395168 / CV EXPL 08-10281, LJN BN2126.

63. Case 314/85, Foto-Frost v. Hauptzollamt Lübeck-Ost, [1987] ECR 4199.64. See Reference for a preliminary ruling from the Rechtbank Breda (Netherlands), lodged

on 27 June 2011, Case C-315/11, Van de Ven & Van de Ven-Janssen v. Koninklijke LuchtvaartMaatschappij N.V., pending.

65. Rechtbank Haarlem Sector kanton, 10 March 2011, X v. Martinair Holland N.V.,407708 / CV EXPL 08-15073, LJN BP8512.


Further adding to the controversy, on 19 January 2012, the district court ofDen Bosch issued a remarkable judgment.66 The applicant had suffered adelay of more than three hours on a flight with Ryanair from Eindhoven toPisa, and claimed compensation under the Regulation. The court rejected theclaim, however, considering that it concerned a delay and not a cancellation,for which the Regulation did not provide a right to compensation. The courtstated that the Sturgeon judgment did not change anything in that respect,“considering the fact that the ECJ does not constitute the European legislatureand it is therefore not competent to legislate by means of its case law”.67 Eventhough it is unlikely that this judgment will be upheld if challenged, the signalit sends is one to take notice of. Again we are surprised to find such openanimosity against the European Court and its case law at a lower nationalcourt. Apparently, Sturgeon has really stirred some emotions across thejudiciaries of Northern Europe. Even though several other Dutch courtsremained unconvinced and continued to apply Sturgeon,68 the Hoge Raaddecided to stay the proceedings in eight Sturgeon-related cases before it untilthe judgment in Nelson and TUI Travel.69

On 23 October 2012, the ECJ handed down its judgment in the Nelson andTUI Travel joined cases, and confirms the interpretation of EU law it gave inthe Sturgeon judgment.70 The Court reiterated that the principle of equaltreatment requires that passengers whose flights are delayed and those whoseflights are cancelled at the very last moment must be regarded as being incomparable situations as regards the application of their right tocompensation, because those passengers suffer similar inconvenience,namely, a loss of time. Since passengers whose flights are cancelled areentitled to compensation where their loss of time is equal to or in excess ofthree hours, the Court therefore finds that passengers whose flights aredelayed may also rely on that right where they suffer the same loss of time, bar

66. Rechtbank ‘s-Hertogenbosch Sector kanton, 19 Jan. 2012, X v. Ryanair Limited,774709, LJN BV1931.

67. Para 4.3. Our translation.68. RechtbankAmsterdam, 11 Aug. 2011, X v. Koninklijke Luchtvaart Maatschappij N.V.,

1152144 CV EXPL 10-16769, LJN BR6267. Similarly, in December 2011, the AmsterdamCourt of Appeal confirmed the EUclaim v. China Southern Airlines judgment of the Haarlemdistrict court on appeal. Gerechtshof Amsterdam, 6 Dec. 2011, China Southern AirlineCompany v. Euclaim B.V., 200.077.860/01, LJN BU6840. See also Rechtbank Zwolle Sectorkanton, 18 Jan. 2012, X v. Martinair Holland N.V., 522140 CV 10-14685, LJN BV1731. Seealso Rechtbank Zwolle Sector kanton, 22 June 2011, X v.Martinair Holland N.V., 522140 CV10-14685, LJN BQ8737.

69. Hoge Raad, 15 June 2012, Koninklijke Luchtvaart Maatschappij N.V. v. X, 12/00187,LJN BW5515.

70. Joined Cases C – 581 & 629/10,Nelson v.Deutsche LufthansaAG andTUITravel plc v.Civil Aviation Authority, judgment of 23 Oct. 2012, nyr.


extraordinary circumstances in which airlines are discharged of theircompensation duties altogether. The ECJ also confirmed its view that the lossof time inherent in a flight delay constitutes an inconvenience which is notgoverned by the Montreal Convention. It firmly rejected the arguments thatthe obligation to award compensation to passengers of delayed flights iscontrary to the principles of legal certainty and proportionality.

The judgment is clear and consistent, and deals with the preliminaryquestions in a serious manner, but it does not address the burning issue: that somany national courts have expressed their doubts about the legitimacy ofSturgeon. It is likely that the ECJ’s unequivocal answer in Nelson and TUITravel has put a stop to most of the momentum that had been building againstSturgeon. The referring courts in question, namely the Amtsgericht Köln andthe UK High Court of Justice, can be expected to follow the judgment. Alsothe DutchHoge Raadwill in all likelihood proceed with the application of theSturgeon case law in the six pending cases before it. It remains to be seen,however, whether it will be enough to placate the more boldly defiant judges,especially the LandgerichtKöln, whoseGermanwings reference is still underconsideration at the ECJ.

4. Reflecting on the controversy

Clearly, the Sturgeon judgment has provoked a considerable amount ofcontroversy and disagreement. While most cases that involve high financialstakes and sharply contrasting sets of interests tend to generate media interestand strong reactions, there seems to be a little more to the criticism ofSturgeon. It is probably a combination of several factors that lies behind theintensity and extent of the controversy. It is argued here that we can distinguishbetween three factors: judicial activism as a trigger, an increasing Euroscepticenvironment as a facilitating factor, and a resistance against so-called“Eurolegalism” as the root cause.

4.1. The trigger: Excessive judicial activism

The first and most obvious reason for the critical reactions is the idea that theECJ engaged in excessive judicial activism. In the previous section we havealready set out the scholarly responses that indeed invoked unwarrantedactivism as the main objection against the judgment. We have furthermoreseen that also the most outspoken national courts, in the Germanwingsreference and the Den Bosch Ryanair ruling, explicitly opine that Sturgeonamounts to illegitimate judicial law-making. The Germanwings reference is


especially interesting in this regard, because by asking whether the ECJ deemsit compatible with the principle of the separation of powers to interpret theRegulation the way it did, it places the issue of the boundaries of the judicialfunction and the hot potato of judicial activism at the core of the preliminaryquestion and thereby under the Court’s nose. The ECJ has in the past provenitself inventive in re-phrasing preliminary references in a convenient way, butit is not immediately obvious how it can deal with this reference without insome way addressing the underlying allegation that it has overstepped itscompetence. On the one hand, it could seem likely that the ECJ will deal withthe provocative Germanwings reference by means of an order on the basis ofthe Wünsche doctrine. On the other hand, the ECJ might be conscious of therisk of further antagonizing the national courts, and might therefore deal withthe question more respectfully. It is unlikely, however, that the Court willbacktrack and overturn Sturgeon and now also Nelson and TUI.

It is true that Sturgeon is a striking example of jurisdictionalself-empowerment; seeing that the Court allows itself to essentially write adetailed legal rule into a Regulation – something the Advocate General hadexplicitly warned against. But although the Court acted as a legislator, it is notimmediately clear that it did so at the cost of the legislature beyond what isnormal in a system that allows for judicial review. In the EU legal order, thelegislative prerogative does not encompass infringing constitutionalprinciples and the ECJ has been specifically empowered to decide on thatissue. Finding a piece of legislation in breach of a higher norm requires eitherannulment of the law, or consistent interpretation. Either choice sees the ECJthwarting the will of the legislature, asserting itself and its power to control thelegislature, as is inherent in the concept of judicial review. Opting forconsistent interpretation rather than annulment can even be seen as choosingthe lesser evil. Most national constitutional courts aim to avoid annulment anduse consistent interpretation – “adding in” or “reading down” legislativeprovisions – as a common technique to avoid a stand-off with the legislature.71

An argument could therefore be made that an interpretation of theRegulation in conformity with the principle of equal treatment was moredeferential and respectful of the legislative process than an annulment of theRegulation or parts of it would have been. Of course, it would be naïve to paintSturgeon as a picture of judicial restraint. Using consistent interpretation, asDe Visser points out, “courts can be quite active and engage in judiciallaw-making by re-drafting legislation in a way that can contradict the

71. De Visser, A Cautionary Tale. Some Insights Regarding Judicial Activism from theNational Experience, paper presented at the Conference “Judicial activism at the Court ofJustice”, organized by Maastricht University, 10–11 Oct. 2011.


legislature’s intentions”,72 as Sturgeon illustrates perfectly. But one couldargue that in choosing between the two evils of either annulling the Regulationor interpreting it in conformity with the equal treatment principle by extendingthe right to compensation to the unduly excluded group, the ECJ actuallychose the option that was closest to the legislature’s intention. For the piece oflegislation was adopted in the interest of consumer protection, and it can hencebe assumed that it would be closer to the legislature’s intention – itself ofcourse a difficult fiction – to extend that notion of protection to an extra groupthan to do away with that protection altogether by annulment of the relevantprovisions.

And indeed, although as in most cases of judicial activism there certainly isa self-empowering element in the judgment, one could also choose a lesscynical perspective and say that the Court acted out of a genuine concern forconsumer protection. In any case, regardless of the Court’s motive, thejudgment is a victory for consumer protection. What would have been theconsequence had the ECJ invalidated the relevant provisions of the Regulationas proposed by the Advocate General? The airline companies would have hada field day. They would for the time being not have been required to paycompensation to anyone, neither the passengers of delayed flights nor those ofcancelled flights. The European legislature would most likely have sought toaddress the issue, but this would have left a significant time-gap in which thetravelling European citizen would have had to pay the price. It is true that onthe basis of Article 264(2) TFEU, the ECJ could have decided to maintain theeffects of the Regulation for a brief period to be fixed in such a way as to allowthe Council to remedy the infringements. That way, passengers of cancelledflights would have retained their right to compensation during that period.Nevertheless, the outcome of new negotiations would have been unsure.Airlines would most certainly have seized this opportunity to try to turn thelegislation in their favour by major lobby-investments, and it is not at allcertain that a new compensation regime would have been put in place. Theachieved result could just as well have been to remedy the unequal treatmentby levelling-down, doing away with compensation for all passengers. It couldbe argued that as long as there is a certain degree of capture of the Europeanlegislative process by pro-business lobbyists73 accompanied by a neo-liberal

72. Ibid.73. This is what Follesdal and Hix have called a variant of the fifth main claim of the

standard version of the democratic deficit. They formulate this critique as follows: “since aclassic representative chamber, such as the European Parliament, is not the dominant institutionin EU governance, private interest groups do not have to compete with democratic party politicsin the EU policy-making process. Concentrated interests such as business interests andmultinational firms have a greater incentive to organize at the European level than diffuseinterests, such as consumer groups or trade unions, and the EU policy process is pluralist rather


bias in that same process,74 the Court is right to counterbalance some of thesedefects.75

Indeed, Sturgeon demonstrates that the Court is willing to oppose the freemarket. Many legal scholars have addressed the tension between the extensiveinterpretation of market freedoms with social values, interests and rights.76 Ofcourse, the project of European integration has seen a certain amount ofderegulation and political policies that some would call neo-liberal. And theECJ has been one of the key actors77 in that process and the creation of itscentral pillar, the internal market, by actively engaging in negative integration,i.e. striking down national barriers to trade. It is the ECJ that hasconstitutionalized market freedoms, that has engaged actively in negativeintegration with its deregulatory consequences, that has created the risk of arace to the bottom through the principle of mutual recognition, that applies theproportionality test with insatiable rigour, and that has developed theprohibition of discrimination on grounds of nationality into a market accesstest. As Maduro recognizes, “the case-law of the European Court of Justice onthe market integration rules of the EC Treaty (mainly free movement andcompetition rules) has, at times, appeared to subscribe a neo-liberal, ‘laissezfaire’, conception of the European Economic Constitution and promotedde-regulatory consequences at national level with negative effects on socialrights”.78

But of course, the Court of Justice has to work with the materials it has beengiven, these being the Treaty and secondary legislation, and as such does not

than corporatist. These features skew EU policy outcomes more towards the interests of theowners of capital than is the case for policy compromises at the domestic level in Europe”. SeeFollesdal and Hix, “Why there is a democratic deficit in the EU: A response to Majone andMoravcsik”, 44 JCMS (2006), 537. On this point Follesdal and Hix refer to Streeck andSchmitter, “From National corporatism to transnational pluralism: Organized interests in theSingle European Market”, 19 Politics and Society (1991), 133–64.

74. See Scharpf, Crisis and Choice in European Social Democracy (Cornell UniversityPress, 1999). For a critical response see Moravcsik, “In defence of the ‘demoratic deficit’:Reassessing legitimacy in the European Union”, 40 JCMS (2002), 603–624.

75. See on this point Kaupa, What if the ECJ is NOT an activist court, but still has aneoliberal bias? Paper presented at the Conference “Judicial activism at the Court of Justice”,organized by Maastricht University, 10–11 Oct. 2011.

76. For a selection, see Maduro, “Striking the elusive balance between economic freedomand social rights in the European Union”, in Alston, Cassese, Lalumière and Leuprecht (Eds.),An EU Human Rights Agenda for the New Millennium (Hart Publishing, 1999), pp. 449–472;Weatherill, “Recent case law concerning the free movement of goods: Mapping the frontiers ofmarket deregulation”, 36 CML Rev. (1999), 51; Shaw (Ed.), Social Law and Policy in anEvolving European Union (Hart Publishing, 2000); De Búrca (Ed.), EU Law and the WelfareState, In Search of Solidarity (Collected Courses of the Academy of European Law, 2005).

77. See Harlow, “Global administrative law: The quest for principles and values”, 17 EJIL(2006), 196, quoting Gray,False dawn,TheDelusions ofGlobalCapitalism (Granta, 1998), p. 9.

78. Maduro, op. cit. supra note 76.


act as an independent institution in a vacuum. That is certainly important toremember when setting out on a quest to establish whether a certainpolitical/economic philosophy can be seen to permeate its judgments. AsKaupa has pointed out, if Fritz Scharpf’s well-known thesis that the Europeanlegal structure has a neoliberal bias inscribed into it is true, this would meanthat should the case law be found supportive of a neo-liberal approach tomarkets and societies, the ECJ would be merely doing what it was designed todo.79 Nevertheless, the autonomous influence of the ECJ is substantial and ithas a reputation for straying from the narrow path of textual interpretation ofthe Treaty into the deep and dense forest of context and teleology. When itdoes, it adds something of its own, and this is the salient part.This independentcontribution cannot, in this author’s opinion, be found unequivocallysupportive of a neo-liberal approach to markets and societies.80

In the area of citizenship, for example, the Court has traditionally beenconsidered very activist, and in numerous controversial cases it has extendedwelfare rights to non-nationals.81 Here, the ECJ has acted as a very sociallyactivist court. In order to come to a balanced view of the ECJ’s case law, it istherefore necessary to extend the analysis beyond the internal market and lookat areas such as citizenship, environment and consumer protection. If the ECJis found to be equally activist in these domains, accusations of a neo-liberalbias largely lose their force. Regulation 261/2004 is a strong piece ofconsumer protection, and its expansive interpretation by Sturgeon is indeedsuch an example of activism that leads to a result against free market thinking.For it supports the notion that there are certain rights that airlines have toguarantee to their customers no matter how low the price of their product;certain things that consumers cannot opt-out of voluntarily. It opposes the ideathat the mechanisms of the market will make sure that everyone involved getwhat they want. Although it is by itself not enough to dispel allegations of a

79. Kaupa, op. cit. supra note 75. See Scharpf, “The asymmetry of European integration, orwhy the EU cannot be a ‘social market economy’”, 8 Socio-Economic Review (2010), 211 –250and Scharpf, “The European social model: Coping with the challenges of diversity”, 40 JCMS(2002), 645–670.

80. For an interesting explanation of the ECJ’s activism as non-political“perfection-seeking” judicial interpretation, see Bomhoff, “Perfectionism in European Law”,14 CYELS (2012), 75–100.

81. E.g. Cases C-85/96, Maria Martinez Sala v. Freistaat Bayern, [1998] ECR I-2691;C-456/02, Trojani v. CPAS, [2004] ECR I-7573; C-184/99, Rudy Grzelczyk v. CPAS, [2001]ECR I-6193; Case C-209/03, R on the application of Danny Bidar v. London Borough of Ealing,Secretary of State for Education and Skills, [2005] ECR I-2119; Cases C-22 & 23/08,Vatsourasand Koupatantze v. Arbeitsgemeinschaft (ARGE) Nurnberg 900, [2009] ECR I-4585;C-192/05, Tas-Hagen v. RaadskamerWUBO van de Pensioen- en Uitkeringsraad, [2006] ECRI-10451; and C-499/06, Nerkowska v. Zaklad Ubezpieczen Spolecznych Oddzial w Koszalinie,[2008] ECR I-3993.


neo-liberal bias in the ECJ’s output, Sturgeon and the passenger-oriented caselaw that preceded it certainly serve as a counterexample.

So, Sturgeon is not a case of the ECJ trampling on social values to benefitthe (internal) market as it allegedly did in Viking and Laval – if anything, itwould be the other way around. Often-heard concerns about nationalregulatory autonomy, as for example in the education cases Commission v.Belgium,Commission v.Austria, Bidar andMorgan and Bucher,82 also do notreally come into play here. Of course, the ECJ now requires national legalsystems to provide for damages in cases of delays, but this is simply anextension of the damages in cases of cancellations, and the regulation of the airsector has been harmonized anyway. If one had to categorize the activism inSturgeon it would probably be most comparable to Mangold, where the ECJheld that the prohibition of discrimination on grounds of age was a generalprinciple of EU law, binding the Member States when implementing EU law,even though Directive 2000/78 on age discrimination lacked direct effect asthe implementation deadline had not yet passed and the dispute involved twoprivate parties.83 Many commentators reacted that the ECJ had illegitimatelyused a general principle and a piece of secondary legislation to expand theduties on private parties against the will of the legislature. Although the casesare factually and legally very different, the Sturgeon judgment does feature acomparable magic potion of a piece of secondary legislation and a generalprinciple of EU law that will make the rights and duties of private parties ascreated by the legislature grow to unintended proportions.

It should be noted that the general principle of equality is a slippery conceptin this respect. There is an inherent tension here with practical reality, whichentails that decision-making will often have to distinguish between groups. Toparaphrase an American judgment, the principle of equality must “co-existwith the practical necessity that the law classifies”.84 For exactly this reason,the only question the German Constitutional Court will ask in reviewingstatutes under equality law is whether the comparator is arbitrarily chosen,reasoning that the separation of powers requires the legislature, not the Court,to decide who is comparable and in what regard.85 That the ECJ takes aninterventionist approach when the ground of distinction is suspicious (race,sexual orientation, age etc.) is merited, but does the same apply to more

82. Case C-147/03, Commission v. Austria, [2005] ECR I-5969; Case C-209/03, Bidar,[2005] ECR I-2119; Joined Cases C-11/06 & C-12/06, Morgan v. Bezirksregierung Köln;Bucher v. Landrat des Kreises Düren, [2007] ECR I-9161; C-65/03, Commission v. Belgium,[2004] ECR I-6427.

83. See Mangold, cited supra note 38.84. Romer v. Evans, 517 U.S. 620, 631 (1996).85. Baer, “Equality: The jurisprudence of the German Constitutional Court”, 5 CJEL

(1998–1999), 256.


general distinctions such as between passengers of delayed and cancelledflights?The ECJ’s expansive interpretation of the general principle of equalityreflects a strong conviction that law and policy must be reasonable, rationaland consistent. The high value attached to this idea can also be detected in theECJ’s application of the proportionality test when applying the rule of reasonin the context of the internal market. Very often, national legislation is held inbreach of EU law not because there is no legitimate interest at stake, butbecause the ECJ opines that the interest is served in an inadequate orinconsistent way. Admittedly, the problem with this view is that itunderestimates the intricacies of the legislative process, in whichcompromises have to be made, leading to sometimes slightly inconsistentoutcomes. However, this mostly argues against annulment of legislation, whileit is not incompatible with consistent interpretation. In constructivecooperation, the legislature can draft the piece of regulation to the best of itsability while the Court in turn remedies any unjustified inequalities.

All the foregoing leads us to consider that the ECJ’s judgment in Sturgeonwas activist, but that this activism could well be considered warranted in thebroader institutional framework. In light of its signature expansionistapproach in the area of the four freedoms, one could deem the ECJ’s forcefulassertion of consumer rights in this area appropriate and justified. Severalother cases, such as Viking and Laval, seem in fact more problematic; thisraises the question whether there are additional factors at play that can explainthe particularly intense controversy surrounding Sturgeon.

4.2. The facilitator: Knock-on effect of Eurosceptic judgments

It might be interesting to consider briefly how the judgments of the Germanand Dutch courts taking issue with Sturgeon fit in the broader relationshipbetween the European Court and its national colleagues. Defiant nationaljudgments are nothing new, as stand-offs between the ECJ and national highcourts have occurred from the very beginning of European integration. TheSemoules andCohn-Bendit judgments of the Conseil d’Etat, the Solange I andMaastricht rulings of the Bundesverfassungsgericht, theFrontini judgment bythe Italian Constitutional Court, and the Danish Constitutional Court’sjudgment in the Carlsen case are all well-known examples of national courts’refusal to accept the ECJ’s case law, especially its claims to supremacy andultimate authority.86 Much has been said and written on the issue since, giving

86. See Slaughter et al. (Eds.), The European Court and National Courts – Doctrine andJurisprudence: Legal Change in its Social Context (Northwestern University Press, 1998) andClaes, The National Court’s Mandate in the European Constitution (Hart, 2006).


birth to interesting theories of constitutional pluralism87 and judicialdialogue,88 describing and explaining the dynamics between the ECJ andnational courts in what is generally a conciliatory tone. Perhaps Sturgeon isjust one of those episodes where the European and national judiciariestemporarily clash, without this being of too much consequence for the processof European integration.

Still, the extent of the Sturgeon fallout is extraordinary, involving as it doesseveral courts from various jurisdictions. Certainly, the large number ofSturgeon-related references should be seen in light of the airlines’ strategy toboycott the judgment en masse, deliberately letting matters be played outbefore the courts. Since the potential cost of having to pay compensation issubstantially higher than any legal costs incurred in these court proceedings, itis worthwhile for the airlines to invest in the best legal aid available and try toprevent or at least stall the awards of claims by any available means.Nonetheless, their arguments have not fallen on deaf ears, as most referenceswould not have been made if the national courts had not found any fault withthe Sturgeon judgment. Moreover, the Sturgeon fallout does not “simply”concern a single obstinate national high court, but courts placed on the lowerechelons of the national judicial hierarchy. This is all the more crucial,considering that lower courts have generally been well-disposed to the ECJ.After all, EU law creates opportunities for lower courts to circumvent theirjudicial hierarchy through principles of supremacy and direct effect, and thepreliminary reference procedure.89 Furthermore, unlike supreme courts,lower courts are used to the existence of a higher authority that might overturntheir judgments and therefore feel less threatened by the ECJ. In addition, asDe Witte has argued, national constitutional courts are more prone tochallenge the ECJ than lower courts because of their specific duty to protectthe national constitution.90

So what then is causing these unprecedented strong reactions from lowercourts? Some might explain it by a knock-on effect of Eurosceptic judgmentsfrom higher courts. Recent years have seen an increasingly forceful resistance

87. See recently Avbelj and Komarek, Constitutional Pluralism in the European Union andBeyond (Hart, 2012).

88. See recently Fontanelli, Shaping the Rule of LawThrough Dialogue: International andSupranational Experiences (Global Law Books, 2010).

89. Alter, “Explaining national courts’ acceptance of European Court jurisprudence: Acritical evaluation of theories of legal integration”, in Slaughter et al. op. cit. supra note 86, p.232. Weiler, “The transformation of Europe”, (1991) Yale Law Journal, 2403–2483. See alsoDyevre, Judicial Non-Compliance in a Multi-Level, Non-Hierarchical Legal Order: IsolatedIncident or Omen of Judicial Armageddon?, Paper presented at London School of Economicson 11 Oct. 2012, p. 6.

90. De Witte, “Direct effect, supremacy and the nature of the legal order”, in Craig and DeBúrca, The Evolution of EU Law (OUP, 2011), pp. 177–213.


by national high courts like the German Bundesverfassungsgericht and thePolish Constitutional Court, epitomized by the judgment of the CzechConstitutional Court of 14 February 2012, declaring the ECJ’s ruling in theLandtovà case91 an ultra vires act.92 Dyevre has argued that stand-offsbetween domestic high courts and the ECJ can be seen as a complex gamebeing played over the rivalrous good of jurisdiction. 93 He points out that boththe ECJ and national high courts have an incentive to claim authority, but alsothat none of them has an interest in generating the constitutional crisis thatwould follow from an escalated conflict. Given that a constitutional crisis is aworse outcome than a jurisdictional loss, the best response for a domestic highcourt to an activist/assertive ECJ is judicial restraint.94 This however operatesfrom the assumption that the cost of constitutional crisis is prohibitive for anational high court. As Dyevre points out, non-compliance may attractproblems to domestic judges because a ruling that is regarded as detrimental tothe country’s interests and EU membership may trigger adverse politicalreactions.95 In countries where EU membership is still supported by a majorityof the population, judges can ill afford to issue judgments that would imperiltheir country’s full membership. Recently, however, the cost of constitutionalcrisis may be decreasing, through increasingly Eurosceptic sentiments in theEuropean populations.96 Furthermore, Eurosceptic judgments of nationalhigh courts might themselves have the effect of lowering the cost ofconstitutional crisis, emboldening other national courts – both high and low –to take a more assertive stance towards the ECJ.

The Sturgeon controversy predates the Czech Landtovà ruling, but it mighthave tapped into an emerging Euroscepticism nonetheless. Although it isdifficult to establish with any certainty whether the Eurosceptic environmenthas influenced the national rulings in question, and while we should not attachto much weight to these rather speculative observations, it is not unlikely thatthe national judges in question felt on somewhat safer ground opposing theECJ now that support for EU integration among the general population isproving contested. But like the allegations of judicial activism, that in itself isnot enough to explain the Sturgeon saga in its full extent. If we were really pasta phase of judicial dialogue and had moved into an era of judicial warfare, we

91. Case C-399/09, Landtova v. CSSA, judgment of 22 June 2011, nyr.92. Judgment of 14 Feb. 2012, Slovak Pensions XVII. See Komarek, “Playing with matches:

The Czech Constitutional Court declares a judgment of the European Court of Justice of the EUultra vires: judgment of 31 January 2012, Pl. ÚS 5/12, Slovak Pensions XVII”, 8 EuConst(2012), 323–337.

93. Dyevre, op. cit. supra note 89, p. 2.94. Ibid., p. 18.95. Ibid.96. Ibid, p. 43.


should have seen many more Eurosceptic judgments from lower nationalcourts joining the fray. The question therefore remains why this specific ECJjudgment has triggered the retorts that it did, and why it is still quite singularin causing these reactions. It is submitted that the judicial activism displayedin Sturgeon acted as a trigger, that the increasingly Eurosceptic environmentoperated as a facilitator, and that we still need to look for a deeper cause.

4.3. The root cause: Eurolegalism

We propose that the root cause behind the controversy is one that is perhapsless obvious at first face value, but that is much more deeply embedded withinthe national legal cultures and hence judiciaries: a resistance against theincreasing “claim culture” or “compensation culture” in Europe. Many willhave noted that the distinctly American approach to governance that has beendubbed “adversarial legalism” is on the rise in the EU, leading to whatKelemen has called the spread of “Eurolegalism”.97 Adversarial legalism ischaracterized by 1) detailed, prescriptive rules 2) legalistic and adversarialapproaches to regulatory enforcement and dispute resolution, 3) costly legalcontestation and mega-lawyering techniques, 4) active judicial review ofadministrative decisions and practices and frequent judicial intervention and5) frequent private litigation concerning regulatory policies.98 Overall, itempowers private actors to assert their legal rights through the emphasis on theenforcement of legal norms through transparent legal rules. Could it be thatthe fierce reactions from national judiciaries against the Sturgeon case law canpartly be explained by a deeply engrained aversion to such “American”practices?

“Regulation through litigation” was for a long time alien to Europe, wheremore informal, cooperative, and opaque approaches to regulation dominated,relying much less on lawyers, courts and private actions.99 In fact, as Kelemenpoints out, Europeans take distinctive pride in the absence of adversariallegalism.100 This may be changing, and as Kelemen points out, the EU may bethe reason for it. He argues that this shift is caused by the process ofderegulation and EU re-regulation linked to the creation of the internalmarket, where economic liberalization has undermined the traditional,cooperative national regulatory approaches. The EU-level re-regulationdiffers from the national regulation it replaces, because the increased volume

97. Kelemen, op. cit. supra note 16.98. Kagan, Adversarial Legalism: The American Way of Law (Harvard University Press,

2001).99. Kelemen, op. cit. supra note 16, p. 7, referring to Viscusi (Ed.), Regulation through

Litigation (Brookings Institution Press, 2002).100. Kelemen, op. cit. supra note 16.


of – and diversity in – the market, pressure EU policy-makers to rely on a moreformal and transparent approach to regulation, backed by vigorousenforcement, often by private parties.101 Another contributing factor is thefragmented institutional structure of the EU, meaning that the re-regulationtakes place in the context of a fragmented regulatory State with a powerfuljudicial system but a weak administrative apparatus.

The saga related to Regulation 261/2004 culminating in the Sturgeonjudgment is an example par excellence of the rise of Eurolegalism.102 Theentire chain of events has shown an EU-level deregulation of the air transportsector, the adoption of consumer protection legislation providing clearlyidentifiable rights, the EU launching campaigns calling on consumers toenforce these rights, airlines forming pan-European interest groups to bringlegal challenges against EU rights, the Commission taking coercive actionagainst Member States that do not enforce consumer rights, passengersbringing floods of claims before national courts either individually or throughnewly erected firms such as Aviaclaim, EUclaim and Ticketclaim, which arewidely advertising their services on the internet, soliciting clients to bringcompensation claims against airlines.103

However, although it might be legitimate to object to the rise of adversariallegalism in our legal systems, it would be wrong therefore to side with theairlines on this issue and to resist an approach in support of consumers. For itshould be remembered that the re-regulation in the form of transparent andenforceable rights and the ensuing claims and legal proceedings are theconsequences of, and perhaps even defence mechanism against, thederegulation and liberalization connected to the internal market. To resistre-regulation would be to create an undesirable “market without rules”104

version of the internal market, in which important public interests are leftunprotected. The ECJ’s aforementioned activism is therefore not only a

101. Ibid., pp. 8–9: “… the EU is encouraging the spread of adversarial legalism as a modeof governance that can harness private litigants and national courts for the decentralizedenforcement of European law. Eurolegalism is emerging as a quite unexpected-and in manycircles unwanted-stepchild of European integration”.

102. Ibid.103. Master of manipulating public opinion through media-genic controversial statements,

Ryanair has already tried to play into Europeans’ dislike of American-style claim culture, bypublicizing that it had received a claim in relation to the flight disruption caused by the eruptionof the Iceland volcano in 2010 from an Irish passenger who had paid ¤34 to travel to the CanaryIslands and was demanding ¤2,900 to cover food and accommodation. True colours shonethrough when Ryanair said that they would respond to the “claims coming from bastards whopaid ¤30 and are seeking ¤3,000 back” by taking on “10 or 20 of the most ludicrous claims astest cases”. Milmo, “Ryanair to reject ‘ludicrous’ Iceland volcano claims”, The Guardian, 1June 2010.

104. Concept borrowed from A.G. Tizzano, Opinion delivered on 25 March 2004 in CaseC-442/02, Caixabank France, [2004] ECR I-08961, para 63.


necessary part of Eurolegalism, it is also desirable, as a counterweight to thederegulatory effects of market liberalization.

Before the liberalization of air transport most of the sector operated throughnational airlines, State-owned enterprises with a legal status varying frombeing part of government to stock companies with the State as a regularshareholder, which allowed the public to influence the airlines and theirbehaviour directly. Quality standards could be imposed and adapted withouthaving to resort to the (arduous) enactment of static legislation, to be enforcedin courts. Not only has privatization meant that private parties have been ableto generate profit from what used to be a public service, banking on theguaranteed demand of transport as a necessity of (modern) life, it has alsobecome more difficult for the public to make sure that common interests andvalues are served. Of course, privatization can also be projected to bring aboutadvantages to the consumer (wider variety of choice in terms of price andquality) and the public at large (no public risk, no public costs). But it shouldbe recognized that bolstering the rights of the consumer is necessary tocounterbalance the loss of control by the citizen. This indeed means that weare increasingly turned into market citizens, who relate to each other and tosociety at large in a rational, individualistic and self-interested mind-set. If thissounds unappealing, or un-European, then the idea of market integrationthrough deregulation and liberalization should be challenged, not the idea ofstrong consumer protection through expansive interpretation of EU-levelre-regulation.

5. Conclusion

This contribution has aimed to shed some light on the intense controversy thatthe Sturgeon judgment has caused both in legal scholarship and practice. Wehave found that although the judgment can be regarded as activist, thisactivism cannot be called unwarranted. Furthermore, while the ECJ’s judicialactivism is likely to have been the main trigger of the strong reactions, it doesnot explain the full extent of the controversy. The increasingly Euroscepticenvironment has probably played a role by emboldening national courts intheir defiance. But most importantly we have postulated that the root causelies with a national resistance against an increasing claim-culture in Europe.That makes the defiant judgments more understandable, but not lessdeplorable. Let us hope that the ECJ’s unequivocal confirmation of itsSturgeon line in Nelson and TUI Travel will mark the end of the rebellion. Todrag on the dispute(s) would be damaging to legal certainty, would harm thecredibility of the ECJ and damage the reputation of the national courts


involved. We have seen that although there are good reasons to be critical ofthe ruling, especially with regard to the poor quality of legal reasoning, theoutcome of the case can be defended. The Court has rightly taken a forcefulapproach in the protection of European consumers, providing a necessarycounterbalance to the EU-induced privatization of the air travel sector.National courts have traditionally been receptive to applying European rightsto the benefit of economic actors against the State, and exactly for that reasonthey also have to be receptive of consumers claiming European rights againstcompanies.


Documents

SKY-HIGH CONTROVERSYAND HIGH-FLYING CLAIMS? THE STURGEON CASE LAW IN LIGHT OF JUDICIALACTIVISM, EUROSCEPTICISMAND EUROLEGALISM