Tribunal de Justicia de la Unión Europea
In Case C-344/04 ORDER OF THE PRESIDENT OF THE COURT24 September 2004 (1)
Fecha: 24-Sep-2004
- 1 This reference for a preliminary ruling concerns the validity of Articles 5, 6 and 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p.1, ‘the regulation’), and on the interpretation of the second paragraph of Article 234 EC.
- 2 The reference was made in the course of two sets of proceedings for judicial review concerning the regulation, brought against the Department of Transport by International Air Transport Association, in the first case, and European Low Fares Airline Association and Hapag-Lloyd Express GmbH, in the second. The provisions of the regulation at issue are Articles 5 and 6, which define passengers’ rights to compensation, reimbursement, re-routing or assistance if their flight is cancelled or delayed, and Article 7, which defines more specifically the right to compensation. In accordance with Article 19, the regulation is to enter into force on 17 February 2005.
- 3 By separate document also lodged at the Court Registry on 12 August 2004, the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court), requested the Court to apply an accelerated procedure to this reference for a preliminary ruling.
- 4 It follows from the first paragraph of Article 104a of the Rules of Procedure that, at the national court’s request, the President of the Court may exceptionally decide, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to apply an accelerated procedure derogating from the provisions of the Rules of Procedure to a reference for a preliminary ruling, where the circumstances referred to establish that a ruling on the question put to the Court is a matter of exceptional urgency.
- 5 In this instance, the referring court first of all describes the serious risk run by the air carriers of incurring major damage as a result of the regulation’s entering into force. Having regard to the narrow profit margins achieved by the air carriers represented by the European Low Fares Airline Association, there is a real and significant danger, if those carriers should incur liability under the provisions of the regulation, of their having to bear costs which would not only wipe out any profit on the flight giving rise to indemnification but would also have the effect of rendering all the flights, or a large number of them, operated by that operator unprofitable in order that the operator may meet the claim for indemnification.
- 6 Furthermore, the national court observes that the continued viability of air carriers serving a large number of consumers, which it judges to constitute a public interest for the Community, is a factor upon which weight is to be placed.
- 7 Next, the national court states that the draft statutory instrument that is to transpose the regulation into domestic law lays down criminal penalties for air carriers failing to observe the provisions of the regulation. On this point, the Court stresses the principle that if there is a real doubt as to the validity of a provision providing for a criminal penalty the issue of validity should be determined before any criminal proceedings are initiated.
- 8 Finally, it points out that in the absence of an accelerated procedure the air carriers will be obliged to undertake substantial rearrangements of their internal management and to take steps so as to put themselves in a position to organise their affairs properly in the face of the risk of such claims for compensation.
- 9 On this point, it must be stated that the interest in determining the validity of Articles 5, 6 and 7 of the regulation before 17 February 2005 and the economic sensitivity of the present case are not such as to demonstrate exceptional urgency for the purposes of the first paragraph of Article 104a of the Rules of Procedure (see, to that effect, the order of the President of the Court of 7 May 2004 in Cases C-154/04 and C-155/04 Alliance for Natural Health and Others and National Association of Health Stores and Others, not published in the ECR, paragraph 8).
- 10 Furthermore, with regard to the argument based on the risk that certain air carriers might incur serious damage as a result of the regulation’s entering into force, it must be pointed out that if those carriers are faced with a new legal situation, that is no more than the normal consequence of the entry into force of a regulation, the preparatory works for which have moreover appeared in the Official Journal of the European Communities. It would therefore appear that the risk run by the carriers, however genuine and substantial it may be, cannot demonstrate that a ruling on the questions referred is a matter of exceptional urgency.
- 11 The request for application of an accelerated procedure to Case C-344/04 must therefore be dismissed.
ORDER OF THE PRESIDENT OF THE COURT
24 September 2004 (1)
(Accelerated procedure)
In Case C-344/04,
Reference for a preliminary ruling under Article 234 EC,
from the High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom), by decision of 14 July 2004, received at the Court on 12 August 2004, in the proceedings
The Queen, on the application of:
International Air Transport Association,
European Low Fares Airline Association,
Hapag-Lloyd Express GmbH,
v
Department of Transport,
THE PRESIDENT OF THE COURT,
having regard to the proposal from J. Malenovský, Judge Rapporteur,having heard the
Advocate General, L. A. Geelhoed,
makes the following
Order
On those grounds,
THE PRESIDENT OF THE COURT
hereby orders:
The request for application of the accelerated procedure provided for by the first paragraph of Article 104a of the Rules of Procedure to Case C-344/04 is dismissed.
Signatures.
- 1 –
- Language of the case: English.