Common Market Law Review 50: 1546, 2013. 2013 Kluwer Law International. Printed in the United Kingdom.

SKY-HIGH CONTROVERSY AND HIGH-FLYING CLAIMS? THE STURGEON CASE LAW IN LIGHT OF JUDICIAL ACTIVISM, EUROSCEPTICISM AND EUROLEGALISM
SACHA GARBEN*

1.

Introduction

City hopping across the European continent to catch the carnival in Venice, to grab a concert in Vienna or to go on a pub-crawl in Prague is no longer the exclusive domain of the jetsetters. The competitive prices and no-frills procedures of European low cost airlines such as Ryanair, Easyjet and Wizzair have made air travel an accessible means of transportation. In addition, the low-budget air carriers have opened up new airports at places outside the main metropolitan areas and established new pan-European connections, sometimes even to the most outlying places in Europe.1 These developments have not only made intra-European mobility more feasible, facilitating the already mobile European elite, they have also brought Europe closer to the broader public, fostering a fundamental transformation in the way common citizens perceive distances and, as such, Europe.2 All this could be projected to deepen and promote European integration; it is therefore not surprising that, at least initially, the low cost carriers and the EU had a loving relationship.3 After all, it was the EU that enabled the price-fighting airlines to operate competitively in the first place. Up until 1987, air transport was highly regulated with closed national markets dominated by national airlines. In the wake of the Single European Act, the EU embarked on a 10-year process to deregulate the air transport sector. Directive 87/601/EEC on air fares was adopted as a first step and in the following decade the EU successfully liberalized the sector by means of various reform packages, allowing all air
* Academic Fellow at the London School of Economics and Political Science, Department of Law. The author wishes to thank B. de Witte, J. Bomhoff, A.P. van der Mei, S. van Alphen and K. Engel for their valuable comments on a previous draft. The usual disclaimer applies. 1. Mau and Bttner, Transnationality, in Immerfall and Therborn (Eds.), Handbook of European Societies, Social Transformations in the 21st Century (Springer), p. 542. 2. See Charlton, Low cost airlines lend citizens a European identity, Caf Babel, 17 Aug. 2009, available at: <www.cafebabel.co.uk/article/31040/low-cost-airline-traveleuropean-identity-ryanair.html>. 3. See: Low-cost founding fathers How cheap air flights are bringing Europeans together, The Economist, 27 Jan. 2005. Available at: <www.economist.com/node/3598896>.

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carriers to operate EU air services under a common licence system and to freely determine their tariffs. The regime is now consolidated in Regulation 1008/2008/EC establishing common rules for the operation of air services in the EU.4 Increasingly, however, their love affair is turning sour. For example, recent years have seen significant cracks in the relationship between Ryanair and the European Commission. The Commission has been actively investigating the potentially anti-competitive behaviour of Ryanair. In 2007, the Commission blocked its planned takeover of Aer Lingus on the grounds that the combined airline would have had a monopoly on too many routes.5 In the beginning of 2012, the Commission announced new investigations into the effect of discounts Ryanair had received at the Lbeck-Blankensee airport in Germany and the Klagenfurt regional airport in Austria.6 As retaliation, Ryanairs celebrity chief executive Michael OLeary, who not so long ago enthusiastically campaigned for the Lisbon Treaty,7 has threatened to take legal action against the European Commissions travel policy, which discourages Commission officials and guests from travelling on low-cost airlines.8 However, competition rules work both ways for airlines, and Ryanair especially has been active in seeing EU competition rules enforced against its competitors. The real bone of contention between the EU and the low cost carriers is not competition law, but the issue of passenger rights, and in this fight the low cost carriers find support with all airlines more generally. In 2004, the Parliament and the Council adopted Regulation 261/2004/EC establishing common rules on compensation and assistance to passengers in the 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 rules for 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 be incompatible with the common market and the EEA Agreement (Case COMP/M.4439-Ryanair/Aer Lingus), O.J. 2008, C 47/9. 6. European Commission, State aid: Commission opens in-depth investigations in air transport 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, New York Times, 7 March 2012, available at <www.nytimes.com/2012/03/08/business/global/at-european-commissionausterity-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. 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport, O.J. 1991, L 36/5.

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The Commission has actively communicated and promoted the Regulation, for instance by adorning airport terminals across Europe with posters informing passengers of their rights. Disgruntled travellers quickly started to make use of these opportunities and airlines have been faced with ever-increasing numbers of claims for assistance, care and compensation. The airlines, who fought this legislation from the beginning,10 have reportedly engaged in a consistent practice of completely ignoring claims, or invoking extraordinary circumstances as a ground to refuse to make payments, unless taken to court.11 The airlines discontent was aggravated by the ECJs judgment of December 2008 in Wallentin-Hermanns, which held that the concept of extraordinary circumstances, which allows airlines to derogate from their compensation duties in cases of cancellation, was generally not to include technical failure.12 When the spectacular13 judgment of the ECJ of November 2009 in the Sturgeon case established that not only passengers of cancelled flights and those who were denied boarding but also passengers who suffered long delays could qualify for compensation of up to 600 EUR, the airlines fury went sky-high.14 The airlines are, however, not alone in their discontent with the Sturgeon judgment. Many legal commentators and also national courts have either implicitly 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 Transport Association and European Low Fares Airline Association v. Department for Transport, [2006] ECR I-40 (IATA and ELFAA). 11. Brignall, Thomas Cook wont refund the cost of a taxi fare home, The Guardian, 18 Dec. 2010, Colbey, European Court rules on airline compensation, The Guardian, 21 March 2009. Consumer surveys confirm this lack of compliance by practically all airlines. See Verbraucherzentrale, Fluggastrechte-Anspruch und Wirklichkeit. Ergebnisse einer Online-Umfrage der Verbraucherzen- tralen (Potsdam, 2010), available at <www.vbz.de> and Centre Europen des Consommateurs France, Synthse du rapport sur lexercice des droits des passagers ariens en Europe: la mise lpreuve de la rglementation europenne, 7 Sept. 2010, available at: <www.europe-consommateurs.eu>. See also C. van Dam, Air passenger rights 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 Alana Sturgeon v. Condor Flugdienst GmbH (C-402/07) and Stefan Bck 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 the EU rewrites EC Regulation 261/2004, 71 Air and Space Law (2010), 7374; Leffers, The difference between cancellation and long delay under EU Regulation 261/2004, (2010) Travel Law Quarterly; Karsten, Travel law, in Twigg-Flesner, The Cambridge Companion to European 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

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in the fact that Regulation 261/2004 does not explicitly provide for compensation in relation to delays, and that by holding the opposite the ECJ has engaged in judicial legislation and, allegedly, unwarranted judicial activism. Although this is not the first time that such charges are levelled against the Court, the Sturgeon controversy is turning out to be something quite special, as large numbers of national courts, both lower and higher, from several countries and legal systems, have expressed their doubts over the legitimacy of the judgment. While some have diligently applied the judgment, others have sought to engage in dialogue with the ECJ by referring further questions under the Article 267 TFEU procedure, with yet others blatantly disregarding or openly condemning the ruling. This contribution is intended to shed light on the extent of the controversy, and to place the discussion in a broader perspective on judicial activism, Euroscepticism and so-called Eurolegalism.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 and cancellations, (2011) NYU Transnational Notes, available at <blogs.law.nyu. edu/transnational/2011/10>, 31; Mendes de Leon, De vulkaan in IJsland en de Sturgeon-zaak uit Luxemburg leiden tot uitbarstingen, (2010) NJB, 12181225; Mok, Het arrest Sturgeon; Een reactie, (2010) NJB, 1234. The judgment has been defended by Van Dam, in the article cited in note 13 supra and Naschrift, (2010) NJB, 962. See also Van Dam, op. cit. supra note 11, 259274. 16. Daniel Kelemen, Eurolegalism. The Transformation of Law and Regulation in the European Union (Harvard University Press, 2011). 17. Art. 5: 1. In case of cancellation of a flight, the passengers concerned shall: (a) be offered assistance by the operating air carrier in accordance with Article 8; and (b) be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in event of rerouting when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1)(b) and 9(1)(c); and (c) have the right to compensation by the operating air carrier in accordance with Article 7, unless: (i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or (ii) they are informed of the cancellation between two weeks 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 to reach their final destination less than four hours after the scheduled time of arrival; or (iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival. 2. When passengers are informed of the cancellation, an explanation shall be given concerning possible alternative transport. 3. An operating air carrier shall not be obliged to pay

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and two phone calls under Article 9,19 and c) compensation for up to 600 EUR under Article 7.20 Where flights are delayed for more than two hours for distances under 1500 km, three hours for distances between 1500 and 3500 or 4 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 by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. 4. The burden of proof concerning the questions as to whether and when the passenger has been informed of the cancellation of the flight shall rest with the operating air carrier. 18. Art. 8: 1. Where reference is made to this Article, passengers shall be offered the choice between: (a)-reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passengers original travel plan, together with, when relevant,-a return flight to the first point of departure, at the earliest opportunity; (b) re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; or (c) re-routing, under comparable transport conditions, to their final destination at a later date at the passengers convenience, subject to availability of seats. 2. Paragraph 1(a) shall also apply to passengers whose flights form part of a package, except for the right to reimbursement where such right arises under Directive 90/314/EEC. 3. When, in the case where a town, city or region is served by several airports, an operating air carrier offers a passenger a flight to an airport alternative to that for which the booking was made, the operating air carrier shall bear the cost of transferring the passenger from that alternative airport either to that for which the booking was made, or to another close-by destination agreed with the passenger. 19. Art. 9: 1. Where reference is made to this Article, passengers shall be offered free of charge: (a) meals and refreshments in a reasonable relation to the waiting time; (b) hotel accommodation in cases-where a stay of one or more nights becomes necessary, or-where a stay additional to that intended by the passenger becomes necessary; (c) transport between the airport and place of accommodation (hotel or other). 2. In addition, passengers shall be offered free 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 reduced mobility and any persons accompanying them, as well as to the needs of unaccompanied children. 20. Art. 7: 1. Where reference is made to this Article, passengers shall receive compensation amounting to: (a) EUR 250 for all flights of 1 500 kilometres or less; (b) EUR 400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres; (c) EUR 600 for all flights not falling under (a) or (b). In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passengers arrival after the scheduled time. 2. When passengers are offered re-routing to their final destination on an alternative flight pursuant to Article 8, the arrival 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, in respect of all intra-Community flights of more than 1 500 kilometres and for all other flights between 1 500 and 3 500 kilometres; or (c) by four hours, in respect of all flights not falling under (a) or (b), the operating air carrier may reduce the compensation provided for in paragraph 1 by 50 %. 3. The compensation referred to in paragraph 1 shall be paid in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services. 4. The distances given in paragraphs 1 and 2 shall be measured by the great circle route method.

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and phone calls.21 If the delay is over five hours, passengers have the same rights to reimbursement or re-routing under Article 8 as passengers of cancelled flights. Compensation is however not provided for in the case of delays. The set of rights enjoyed by passengers under the Regulation is extensive and it was therefore not surprising that almost immediately after its adoption, the International Air Transport Association (IATA) and the European Low Fares Airline Association (ELFAA) challenged the validity of the Regulation in judicial review proceedings before the High Court in London.22 In the preliminary reference procedure before the ECJ, the claimants argued that the Regulation was inconsistent with the Montreal Convention,23 breached the legal certainty principle and the general principle of equal treatment. The ECJ however was not convinced, and upheld the Regulation. Soon after, the first compensation claims started to come before the national courts in the Member States, requiring further interpretation of the Regulation. As Correia notes, the Court has generally adopted a passenger-oriented approach in most of these cases, interpreting the Regulation and the rights it provides purposively and expansively.24 Yet this was nothing compared to what followed in the Sturgeon case.25 The Sturgeon family incurred a delay of 25 hours with Condor Flugdienst and took the view that 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 delayed beyond its scheduled time of departure: (a) for two hours or more in the case of flights of 1 500 kilometres or less; or (b) for three hours or more in the case of all intra-Community flights of more 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 be offered 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 departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and (iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a). 2. In any event, the assistance shall be offered within the time limits set out above with respect to each distance bracket. 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, Emirates Airlines, [2008] ECR I-5237; Case C-549/07, Friederike Wallentin-Hermann v. Alitalia-Linee Aeree Italiane SpA, [2008] tis and Edvards Ratnieks v. Latvijas Republikas ECR I-11061; Case C-294/10, Andrejs Egli Ekonomikas ministrija, judgment of 12 May 2012, nyr; Case C-22/11, Finnair Oyj v. Timy Lassooy, judgment of 4 Oct. 2012, nyr; and Case C 321/11, Germn Rodrguez Cachafeiro, Mara de los Reyes Martnez-Reboredo Varela-Villamor v. Iberia, Lneas Areas de Espaa SA, judgment of 4 Oct. 2012, nyr. 25. Sturgeon and Bck, 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. supra note 11, 262.

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claim compensation under the Regulation. The Bundesgerichtshof referred two preliminary questions to the ECJ inquiring whether some measure or type of delay could be regarded as cancellation for the purposes of the Regulation. The arguments of the parties as well as the preliminary questions clearly show that everyone involved was under the assumption that compensation was excluded in the case of delay. Indeed, this is not only clear from the structure and wording of the Regulation, it is also confirmed in the Commissions explanatory memorandum to its original proposal for the Regulation, where it was noted that: cancellation by an operator . . . represents a refusal to supply the service for which it has contracted, except in exceptional circumstances beyond its responsibility. For the passenger, cancellation in ordinary circumstances, for commercial reasons, causes unacceptable trouble and delay, particularly when not warned in advance. Although passengers suffer similar inconvenience and frustration from delays as from denied boarding or cancellation there is a difference in that an operator is responsible for denied boarding and cancellation (unless for reasons beyond its responsibility) but not always for delays. Other common causes are air traffic management systems and limits to airport capacity. [Therefore] the Commission considers that in present circumstances operators should not be obliged to compensate delayed passengers.26 The discussion therefore focused on whether certain delays could be qualified as de facto cancellations, for example because of their long duration. The ECJ resolutely rejected that possibility, holding that cancelled flights and delayed flights are two quite distinct categories of flights. But then, the ECJ took everyone by surprise by holding that although it did not expressly follow from the wording of the Regulation that passengers of delayed flights had a right to compensation, these passengers are to be treated for the purposes of the application of the right to compensation, as passengers whose flights are cancelled; they may thus rely on the right to compensation laid down in Article 7 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.27 The Court based this ground-breaking decision on numerous considerations, some more persuasive than others. Firstly, it considered that although the possibility of relying on extraordinary circumstances releasing
26. European Commission, Proposal for a regulation of the European Parliament and of the Council establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights, COM(2001)784 final. 27. Para 61 of the judgment in Sturgeon and Bck, cited supra note 14.

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airlines from having to pay compensation under Article 7 was provided for only in Article 5(3) concerning flight cancellation, recital 15 in the Regulations preamble nevertheless stated that that ground could also be relied on where an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay [or] an overnight delay. The Court posited the tenuous claim that as the notion of long delay is mentioned in the context of extraordinary circumstances, it must be held that the legislature also linked that notion to the right to compensation. It is an inventive argument, but not very convincing. First of all, this reasoning attaches too much weight to the preamble, to justify a conclusion that is contrary to the actual provisions of the Regulation. In the aforementioned IATA and ELFAA case, the ECJ had specifically stated that while a preamble may explain the latters content, it cannot be relied upon as a ground for derogating from the actual provisions of the measure in question. Secondly, in that same case, the ECJ had held that even though there were some inconsistencies between the preamble and actual provisions of the Regulation, this did not affect its legality as Articles 5 and 6 were themselves entirely unambiguous. Now, it came to a completely different reading of these supposedly unambiguous Articles,28 while it is quite clear from the Regulations preamble, operative part, explanatory memorandum and broader political context that any ambiguity here is not an expression of the will of the legislature to provide compensation also for delays. Had the legislature desired to do so, it can be safely assumed that it would have simply provided for it in Article 6.29 The Courts second line of reasoning is based on the general principle of equal treatment, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified, and it is far more cogent than the first. Comparing the situation of passengers whose flights are delayed with that of passengers whose flights are cancelled, the Court considered that the damage redressed by compensation is that of a loss of time, which is equally suffered by both types of passengers. Hence, it would amount to an unjustifiable difference in treatment to deny compensation to passengers of delayed flights, especially since the aim sought by the Regulation is to increase protection 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 and TUI, discussed further below. The Commission, however, seems to have changed its view and now supports the interpretation given by the ECJ. See C. van Dam, Sturgeons Fate. Part 1: The Hearing, 23 March 2012, available at: <airpassengerrights.blogspot.com>.

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Regulation, but to interpret it expansively. Advocate General Sharpston also regarded the exclusion of delays irreconcilable with the principle of equal treatment, but she concluded that it would not be possible to solve this incompatibility by interpreting the Regulation so as to provide compensation also in the case of delays and that instead this violation affected the validity of the Regulation.30 Advocate General Sharpston felt that the underlying problem could not be fixed by interpretation, however constructive,31 opining that it was impossible for the Court to provide a particular time limit after which passengers of delayed flights qualified for compensation: Any numerical threshold for qualification for a right delineates two groups the fortunate and the unfortunate and in establishing that threshold the legislator must be careful not to infringe the principle of equal treatment. The legislator has the right to pick a figure and then defend it, to the extent that its choice is challenged as infringing that principle, as objectively justifiable. The actual selection of the magic figure is a legislative prerogative. To the extent that any figure is to some extent arbitrary, its arbitrariness is covered by that prerogative (the margin of legislative discretion). Thus, the Community legislator can select a particular 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 Regulation something it plainly does not contain and would be a judicial usurpation of the legislative prerogative.32 It is probably in an attempt to sidestep this fundamental objection that the Court construed the elaborate first argument on the basis of the preamble that the legislature in fact had somehow intended to provide for compensation in cases of delay. In the words of Lenaerts and Gutirrez-Fons, the ECJ deployed the recital 15 argument to counter the separation of powers objection.33 3. 3.1. The reception of the Sturgeon judgment 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 Bck, cited supra note 14. 31. Para 97 of the Opinion, ibid. 32. Paras. 93 and 94 of the Opinion, ibid. 33. Lenaerts and Gutirrez-Fons, The constitutional allocation of powers and general principles of EU law, 47 CML Rev. (2010), 1637.

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the Sturgeon judgment has triggered a considerable amount of controversy. Indeed, as Sturgeon is one of the most interesting recent judgments exploring the boundaries of the ECJs function vis--vis the political process34 it has a significant importance beyond the realms of travel and consumer protection law. Recent years have seen a clear rise of concerns among national authorities and judiciaries, and within European civil society, about the Courts judicial activism.35 Also EU legal academics have become increasingly critical of the ECJs approach. Although the debate on the ECJs alleged activism is effectively an old one,36 it seems to be gaining momentum. A large part of the criticism is directed at instances when the market freedoms are (perceived as) being applied to the detriment of social values, as for example in Viking and Laval.37 But also the application of general principles of EU law (perhaps even furthering social rights), reaching outcomes that seem to be circumventing the will of the European legislature, has given rise to widespread criticism, such as in the much-discussed Mangold case.38 The criticism of activist judgments
34. Baeten, Judging the European Court of Justice: The jurisprudence of Aharon Barak through a European lens, 18 CJEL (2011), 148. 35. Dawson, Presentation at the Conference Judicial activism at the Court of Justice, organized by Maastricht University, 1011 Oct. 2011. See Herzog and Gerken, Stoppt den Europaischen Gerichtshof , Frankfurter Allgemeine Zeitung, 2008, p. 8 and De Waele, Rechterlijk Activisme en het Europees Hof van Justitie (Boom Juridische Uitgevers, 2009). For the purposes of this paper, activism will be defined as the Court engaging in broad and teleological 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 Study in 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., 199210. For a defence of the ECJs approach, see Arnull, The European Court and judicial objectivity: A reply to Professor Hartley, (1996) LQR, 411423 and Albors-Llorens, The European Court of Justice, more than a teleological court, (1999) CYELS, 373398. 37. Case C-438/05, The International Transport Workers Federation and The Finnish Seamens Union (Viking), [2007] ECR I-10779 and Case C-341/05, Laval un Partneri, [2007] ECR I-11767. See Craig and De Brca, EU Law. Text, Cases and Materials (OUP, 2011), p. 804; Joerges, A new alliance of de-legalisation and legal formalism? Reflections on responses to the social 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 emergence of transnational political conflict, 48 JCMS (2010), 1307; Belavusau, The case of Laval in the context 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 Cases before the ECJ, 9 German Law Journal (2008), 159; Kilpatrick, Lavals regulatory conundrum: Collective standard-setting and the Courts new approach to posted workers, 34 EL Rev. (2009), 844. 38. Case C-144/04, Mangold [2005] ECR I-9981. See for interesting discussions of the judgment: Beyer-Katzenberger, Judicial activism and judicial restraint at the Bundesverfassungsgericht: Was the Mangold judgment of the European Court of Justice an ultra vires act?, Editorial, 11 ERA Forum (2011), 517523 and Dougan, In defence of Mangold?, in Arnull et al. (Eds.), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Hart Publishing, 2011), pp. 219244.

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often stems either from a general (horizontal) separation of powers objection that entails that the unelected judiciary should respect the prerogatives of the democratically accountable legislature, or from a federal (vertical) division of powers objection that when the ECJ issues activist judgments, this tends to advance the reach of EU law to the detriment of national powers. A third often-raised objection is directed at the quality of legal reasoning, which tends to be poor in these cases. Especially the first and the third objections play an important role in the Sturgeon controversy. Indeed, the Courts reasoning in Sturgeon is rather thin and not based on firm methodological ground.39 As pointed out above, the trouble lies not so much 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 clear that secondary law can be required to comply with it. Rather, it lies in the choice not to invalidate the relevant provisions of the Regulation, but upholding it and effectively writing in a new provision. The Court, scrambling to find arguments to justify this bold move, came up with the feeble argument that the legislature itself had linked compensation to long delays, because recital 15 of the preamble mentioned that extraordinary circumstances were also deemed to exist where an air traffic management decision in relation to a particular aircraft on a particular day gives rise to a long delay [or] an overnight delay. Judicial activism and weak legal reasoning go hand in hand here. The Courts approach is in stark contrast to Advocate General Sharpstons Opinion, which rigorously and convincingly sets out the reasons why the exclusion of compensation for passengers of delayed flights is indeed illegitimate, but also why the Court cannot fix this by constructive interpretation without crossing the borders of the judicial function and trespassing on the legislatures prerogative. Reactions from commentators have varied. On the one hand, Lenaerts and Gutirrez-Fons have defended the approach of the ECJ and do not seem to feel there is any tension with the separation of powers objection, as they are convinced by the Courts reasoning: the ECJ did not encroach upon the prerogatives of the EU legislature but simply limited itself to clarifying a legislative choice already contained in Regulation No. 261/2004, namely the distinction between delay (inferior to three hours) and long delay (equal to or in excess of three hours).40 Van Dam has also supported the judgment, arguing that it was within the Courts discretion to give preference to the principle of equal treatment after balancing it against the legal certainty principle, 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 Example of the Sturgeon-Case, 6 European Review of Contract Law (2010), 384. 40. Lenaerts and Gutirrez-Fons, op. cit. supra note 33, 1637.

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legislative history of the Regulation.41 Stuyck finds it remarkable that the ECJ reaches a contra legem interpretation of the Regulation on the basis of its preamble, and finds that the judgment stands in contrast to the Courts more reserved attitude in other areas of consumer protection, but does not explicitly condemn the ruling.42 Many others, however, are of the opinion that the judgment is problematic from a constitutional perspective, and that the ECJ would have done better to follow the Opinion of the Advocate General. Such commentators as Arnold and Mendes de Leon, Haak, Leffers, Mok and Staudinger all tend to agree that the Court has crossed the boundaries of its judicial function by extending the Regulation beyond its original meaning and wording, illegitimately undoing the deliberate compromise reached in the legislative process to make a distinction between the responsibilities of airlines in the situation of cancelled flights and delayed flights, which moreover was clearly explained in the explanatory memorandum of the European Commission.43 An additional criticism levelled against the judgment is that it conflicts with the Montreal Convention.44 The Convention arranges, arguably in an exclusive fashion, the right to compensation in cases of delay. Article 29 provides: In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or other- wise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non- compensatory damages shall not be recoverable. This provision limits the compensation of damages to the actual damage suffered (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 retards en Europe, 7 La Semaine Juridique, Edition Gnrale (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, 100101; Haak, De rol van het Europees Hof van Justitie in het passagiersvervoer door de lucht, (2010) Tijdschrift voor Privaatrecht, 493520; Mok, op. cit. supra note 15; Staudinger, Das Urtel des BGH in den Rechtssachen Sturgeon und Bck, 1 Reise Recht Aktuell (2010), 12. For an overview see: M. van Dam, De bus komt zo, toch? Een onderzoek naar de rechten van passagiers bij vertraging en annulering in het Nederlandse stads- en streekvervoer in verhouding tot de Europese verordeningen voor passagiersrechten, Erasmus University Rotterdam, 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.

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damages such as standardized non-compensatory damages. Some authors have argued that the Regulation is at odds with this provision, and they have been critical of the Court for not sufficiently recognizing the fact that the EU and its Member States are bound by international law, and that the Regulation should therefore comply with the Montreal Convention.45 Van Dam, on the other hand, opines that the Regulation and Sturgeon are not incompatible with Montreals exclusivity, pointing out that the ECJ throughout its case law has emphasized that compensation for delay is compensatory, namely for loss of time.46 This damage is identical yet real for all passengers concerned, and Sturgeon compensation is therefore clearly compensatory and neither punitive 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 compensation claims denied by the stubborn airlines, have also shown their discomfort with the Sturgeon judgment by referring a stream of preliminary questions to the ECJ. Formally they are asking for clarification of the judgment, but it is quite clear that this is their way of entering into dialogue with the ECJ, in reality expressing their concerns and asking the Court to revisit its case law. Since the Wnsche judgment, it has been settled case law that the authority of a preliminary ruling does not preclude the national court to which it is addressed from properly taking the view that it is necessary to make a further reference to the Court of Justice, for instance when the national court encounters difficulties in understanding or applying the judgment, when it refers a fresh question of law to the Court, or again when it submits new considerations which might lead the Court to give a different answer.47 However, in Wnsche the Court also expressly held that it is not permissible to use the right to refer further questions to the Court as a means of contesting the validity of the judgment delivered previously, as this would call in question the allocation of jurisdiction as between national courts and the Court of Justice.48 Since some of the references could be considered contrary to the Wnsche doctrine, it will be very interesting to see how the ECJ is going to respond. It should be noted that the issue seems to divide the national judiciaries, as not all courts have decided to stay proceedings to await a further ruling by the ECJ. Some courts have actually faithfully applied Sturgeon, while others have decided not to apply it at all. The result is a patchwork of legal pockets where
45. 46. 47. 48. Mendes de Leon, op. cit. supra note 15, 1223. Van Dam, op. cit. supra note 11, 270. Case 69/85, Wnsche v. Germany, [1986] ECR 947, para 15. Ibid.

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the Regulation practically has a different legal force within and amongst the Member States. Legal uncertainty reigns: some passengers will win and receive compensation whereas others from the same delayed flight might lose their claim, all depending on the choice of court before which proceedings are brought. From the viewpoint of the ECJs signature principles of uniformity and effet utile of EU law, this is very worrying. The first national court to refer a preliminary question regarding the Sturgeon judgment was the German Amtsgericht Kln, in the Nelson reference.49 The three preliminary questions focus on the relationship between Sturgeon, the Montreal Convention, and the IATA and ELFAA case. Most strikingly, the third question asks straightforwardly how the interpretative criterion underlying Sturgeon may be reconciled with the interpretative criterion that the Court of Justice applied to that Regulation in IATA and ELFAA. The Amtsgericht has clearly picked up on the inconsistency in the Courts approach to the preamble and its role in interpreting the Regulation. The judgment can be seen as a strong criticism of Sturgeon and the quality of its legal reasoning, as it does not ask for a clarification so much as a justification or revision of that judgment.50 This first reference foreshadowed a flood of cases from other German courts. In January 2011, the Bundesgerichtshof referred two preliminary questions in the Folkerts case, inquiring whether passengers have a right to compensation in the case where departure was delayed for a period below the limits specified in Article 6(1) of the Regulation, but arrival at the final destination was at least three hours later than the scheduled arrival time.51 Although the Bundesgerichtshof was the first court to apply Sturgeon, a mere three weeks after its rendering,52 and the questions are more deferential than those referred by the Ambtsgericht Kln, this reference could still be seen as a challenge to Sturgeon, albeit more implicit. Sturgeon is crystal clear on the point that passengers of delayed flights qualify for compensation where they suffer a loss of time equal to or in excess of three hours, that is to say when they reach their final destination
49. Reference for a preliminary ruling from the Amtsgericht Kln (Germany), lodged on 13 Dec. 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. Civil Aviation 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 relationship between the Montreal Convention and Sturgeon. See: Reference for a preliminary ruling from the Amtsgericht Geldern (Germany), lodged on 24 May 2011, Case C-255/11, Nadine Bsch and Bjrn Siever v. Ryanair Ltd, pending. 51. Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 11 Jan. 2011, Case C-11/11, Socit Air France S.A. v. Heinz-Gerke Folkerts and Luz-Tereza Folkerts, pending. 52. Exactly three weeks after Sturgeon: BGH 10 Dec. 2009, Xa ZR 61/09. See Van Dam, op. cit. supra note 11, 273.

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three hours or more after the arrival time originally scheduled by the air carrier.53Sturgeon is on this point an acte clair, and there is no real need for further explanation.54 Much less implicit is the Germanwings reference from the Landgericht Kln of 5 August 2011.55 This most striking of references asks: Is it compatible with the principle of the separation of powers in the European Union if, in order to remedy what would otherwise be unequal treatment, Regulation No 261/2004 is interpreted as meaning that a passenger who is affected by a mere delay of more than three hours is entitled to compensation under Article 7 of the Regulation, although the Regulation provides for this only in the case of denied boarding or cancellation of the booked flight but, in the event of delay, restricts the passengers claims to assistance under Article 9 of the Regulation and, if the 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 national courts and the ECJ, and if we do, it is usually played out at the highest level between national constitutional or supreme courts and the European Court. Here we witness a rebellion of relatively lower judges, who are traditionally well disposed and more receptive than the higher courts to the ECJ, its claims of supreme authority and its progressive case law. Importantly, this resistance is not only coming from Germany. As Prager states, also within the English jurisdiction Sturgeon gave rise to astonishment on the part of lawyers and howls of anguish on the part of airlines.56 On 24 December 2010, the High Court of Justice of England and Wales, Queens Bench Division made a preliminary reference to the ECJ in a case brought by TUI Travel, British Airways, Easyjet and IATA against the Civil Aviation Authority (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 the Bundesgerichtshof (Germany), lodged on 26 Aug. 2011, Case C-437/11, Ekkerhard Schau v. Transportes Areos Portugueses SA, pending and Reference for a preliminary ruling from the Bundesgerichtshof (Germany), lodged on 26 Aug. 2011, Case C-436/11, Sandra Schsslbauer, Martin Schsslbauer, Maximilian Schsslbauer v. Iberia Lineas Areas de Espaa SA, pending. In November 2011, the Amtsgericht Dsseldorf joined in and referred the very same question to the ECJ. Similar questions had also been referred already in March 2011 by the Portugese Tribunal de Pequena Instncia Cvel de Lisboa, lodged on 8 July 2011, Case C-365/11, Joo Nuno Esteves Coelho dos Santos v. TAP Portugal, (removed from the register on 13 Feb. 2012). 55. Reference for a preliminary ruling from the Landgericht Kln (Germany), lodged on 5 Aug. 2011, Case C-413/11, Germanwings GmbH v. Amend, pending. 56. Prager, Pioneering passengers rights: Legislation and jurisprudence, 12 ERA Forum (2011), 308.

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indeed the applicable law.57 Like the German courts, by asking questions that have already been clearly answered in Sturgeon, the High Court seemed to be pressing the ECJ to either revise its case law or to provide additional justifications for its judgment. As a consequence of the reference, Sturgeon type payments are generally not being made within the English jurisdiction at present and the law has been said to be in a state of flux.58 Although the Order made by the High Court only applies to the judicial review proceedings taken against it and is not a legal general stay of unrelated proceedings in respect of compensation for delay, UK Courts were likely to suspend any claim brought in this regard until the High Court has given a ruling, incorporating the ECJs judgment which in the meantime has been handed down.59 The fact that the High Court decided to stay the proceedings and refer these 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 out compensation, while it also strengthens their cases before other courts, giving extra weight to their argument that the situation is unclear. Indeed, this can be seen with some Dutch courts that had initially faithfully followed Sturgeon. Although the Netherlands is far from the Europhile country it once used to be, the Dutch courts are usually still very dutiful and compliant when it comes to European law.60 And indeed, there is a general tendency to follow Sturgeon, but it is noteworthy that there are several courts that have expressed their doubts, either by referring further questions or by disregarding the ruling. The first court to decide on a Sturgeon-related case was the Gerechtshof Amsterdam (Amsterdam Court of Appeal), which simply applied the ruling without further ado.61 Five months later, the Haarlem district court followed the same approach in a case involving EUclaim and China Southern Airlines, dismissing the argument that Sturgeon was in
57. Reference for a preliminary ruling from High Court of Justice (England & Wales), Queens Bench Division (Administrative Court), lodged on 24 Dec. 2010, Case C-629/10, TUI Travel plc, British Airways plc, easyJet Airline Co. Ltd, International Air Transport Association, 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 complaints may 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 the Netherlands, in Walker (Ed.), Sovereignty in Transition (Hart Publishing, 2003), pp. 351366; 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. Gerechtshof Amsterdam, 16 Feb. 2010, X v. Surinaamse Luchtvaart Maatschappij N.V., 200.017.721/01, LJN BM5267.

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conflict with IATA and ELFAA.62 However, in October 2010, the district court of Breda came to a different conclusion. The Van de Ven family had incurred a 27-hour delay for which KLM refused to pay compensation, arguing that the Regulation was contrary to Article 29 of the Montreal Convention. The Breda district court considered that the judgments of the Amsterdam Court of Appeal and the Haarlem District Court had not clarified this question, nor had it been discussed in the IATA and ELFAA case. Considering the fact that this concerned a question on the validity of the Regulation, the court saw itself obliged following Foto-Frost to make a preliminary reference.63 Since this question had not been addressed before, the district court did not deem it incompatible with the Wnsche doctrine to refer.64 Although this reference should not be seen as a case of rebellion, but a bona fide question for clarification showing a diligent national court skilfully engaging with the broad range of ECJ case law on the substantive issue as well as the procedural question about when to make a preliminary reference, this reference was not necessary. Furthermore, the reference has added to the confusion and as such has strengthened the case of the airlines in their fight against Sturgeon and the Regulation more generally. This can be seen from a subsequent judgment of the Haarlem district court,65 which had applied Sturgeon without any difficulties only a few months earlier. In this later judgment, the Haarlem district court took into account the preliminary reference of the High Court of England and Wales as well as the judgment of the Breda district court. While it still insisted that the ECJ had already implicitly ruled on Article 29 Montreal, and while it even pointed out that it considered these references by the High Court and Breda district court to be strictly speaking in violation of the Wnsche doctrine, it also referred to the legal uncertainty that had come about as a result of these divergent approaches. As such, and since the district court admitted that it did in fact see some merit in the argument that the Regulation was incompatible with Article 29 Montreal, it felt that it was desirable for the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) to rule on the issue. The district court hence signalled that it would request the Procurator General of the Supreme Court to take on the case in cassation in the interest of the uniform application of the law.
62. Rechtbank Haarlem, Sector Kanton, 15 July 2010, EUclaim BV v. China Southern Airlines Company Limited 395168 / CV EXPL 08-10281, LJN BN2126. 63. Case 314/85, Foto-Frost v. Hauptzollamt Lbeck-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 Luchtvaart Maatschappij N.V., pending. 65. Rechtbank Haarlem Sector kanton, 10 March 2011, X v. Martinair Holland N.V., 407708 / CV EXPL 08-15073, LJN BP8512.

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Further adding to the controversy, on 19 January 2012, the district court of Den Bosch issued a remarkable judgment.66 The applicant had suffered a delay of more than three hours on a flight with Ryanair from Eindhoven to Pisa, and claimed compensation under the Regulation. The court rejected the claim, however, considering that it concerned a delay and not a cancellation, for which the Regulation did not provide a right to compensation. The court stated that the Sturgeon judgment did not change anything in that respect, considering the fact that the ECJ does not constitute the European legislature and it is therefore not competent to legislate by means of its case law.67 Even though it is unlikely that this judgment will be upheld if challenged, the signal it sends is one to take notice of. Again we are surprised to find such open animosity against the European Court and its case law at a lower national court. Apparently, Sturgeon has really stirred some emotions across the judiciaries of Northern Europe. Even though several other Dutch courts remained unconvinced and continued to apply Sturgeon,68 the Hoge Raad decided to stay the proceedings in eight Sturgeon-related cases before it until the judgment in Nelson and TUI Travel.69 On 23 October 2012, the ECJ handed down its judgment in the Nelson and TUI Travel joined cases, and confirms the interpretation of EU law it gave in the Sturgeon judgment.70 The Court reiterated that the principle of equal treatment requires that passengers whose flights are delayed and those whose flights are cancelled at the very last moment must be regarded as being in comparable situations as regards the application of their right to compensation, because those passengers suffer similar inconvenience, namely, a loss of time. Since passengers whose flights are cancelled are entitled to compensation where their loss of time is equal to or in excess of three hours, the Court therefore finds that passengers whose flights are delayed 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. Rechtbank Amsterdam, 11 Aug. 2011, X v. Koninklijke Luchtvaart Maatschappij N.V., 1152144 CV EXPL 10-16769, LJN BR6267. Similarly, in December 2011, the Amsterdam Court of Appeal confirmed the EUclaim v. China Southern Airlines judgment of the Haarlem district court on appeal. Gerechtshof Amsterdam, 6 Dec. 2011, China Southern Airline Company v. Euclaim B.V., 200.077.860/01, LJN BU6840. See also Rechtbank Zwolle Sector kanton, 18 Jan. 2012, X v. Martinair Holland N.V., 522140 CV 10-14685, LJN BV1731. See also Rechtbank Zwolle Sector kanton, 22 June 2011, X v. Martinair Holland N.V., 522140 CV 10-14685, 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 Lufthansa AG and TUI Travel plc v. Civil Aviation Authority, judgment of 23 Oct. 2012, nyr.

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extraordinary circumstances in which airlines are discharged of their compensation duties altogether. The ECJ also confirmed its view that the loss of time inherent in a flight delay constitutes an inconvenience which is not governed by the Montreal Convention. It firmly rejected the arguments that the obligation to award compensation to passengers of delayed flights is contrary to the principles of legal certainty and proportionality. The judgment is clear and consistent, and deals with the preliminary questions in a serious manner, but it does not address the burning issue: that so many national courts have expressed their doubts about the legitimacy of Sturgeon. It is likely that the ECJs unequivocal answer in Nelson and TUI Travel has put a stop to most of the momentum that had been building against Sturgeon. The referring courts in question, namely the Amtsgericht Kln and the UK High Court of Justice, can be expected to follow the judgment. Also the Dutch Hoge Raad will in all likelihood proceed with the application of the Sturgeon 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 Landgericht Kln, whose Germanwings reference is still under consideration at the ECJ. 4. Reflecting on the controversy

Clearly, the Sturgeon judgment has provoked a considerable amount of controversy and disagreement. While most cases that involve high financial stakes and sharply contrasting sets of interests tend to generate media interest and strong reactions, there seems to be a little more to the criticism of Sturgeon. It is probably a combination of several factors that lies behind the intensity and extent of the controversy. It is argued here that we can distinguish between three factors: judicial activism as a trigger, an increasing Eurosceptic environment 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 the ECJ engaged in excessive judicial activism. In the previous section we have already set out the scholarly responses that indeed invoked unwarranted activism as the main objection against the judgment. We have furthermore seen that also the most outspoken national courts, in the Germanwings reference and the Den Bosch Ryanair ruling, explicitly opine that Sturgeon amounts to illegitimate judicial law-making. The Germanwings reference is

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especially interesting in this regard, because by asking whether the ECJ deems it compatible with the principle of the separation of powers to interpret the Regulation the way it did, it places the issue of the boundaries of the judicial function and the hot potato of judicial activism at the core of the preliminary question and thereby under the Courts nose. The ECJ has in the past proven itself inventive in re-phrasing preliminary references in a convenient way, but it is not immediately obvious how it can deal with this reference without in some way addressing the underlying allegation that it has overstepped its competence. On the one hand, it could seem likely that the ECJ will deal with the provocative Germanwings reference by means of an order on the basis of the Wnsche doctrine. On the other hand, the ECJ might be conscious of the risk of further antagonizing the national courts, and might therefore deal with the question more respectfully. It is unlikely, however, that the Court will backtrack and overturn Sturgeon and now also Nelson and TUI. It is true that Sturgeon is a striking example of jurisdictional self-empowerment; seeing that the Court allows itself to essentially write a detailed legal rule into a Regulation something the Advocate General had explicitly warned against. But although the Court acted as a legislator, it is not immediately clear that it did so at the cost of the legislature beyond what is normal in a system that allows for judicial review. In the EU legal order, the legislative prerogative does not encompass infringing constitutional principles and the ECJ has been specifically empowered to decide on that issue. Finding a piece of legislation in breach of a higher norm requires either annulment of the law, or consistent interpretation. Either choice sees the ECJ thwarting the will of the legislature, asserting itself and its power to control the legislature, as is inherent in the concept of judicial review. Opting for consistent interpretation rather than annulment can even be seen as choosing the lesser evil. Most national constitutional courts aim to avoid annulment and use consistent interpretation adding in or reading down legislative provisions as a common technique to avoid a stand-off with the legislature.71 An argument could therefore be made that an interpretation of the Regulation in conformity with the principle of equal treatment was more deferential and respectful of the legislative process than an annulment of the Regulation or parts of it would have been. Of course, it would be nave to paint Sturgeon as a picture of judicial restraint. Using consistent interpretation, as De Visser points out, courts can be quite active and engage in judicial law-making by re-drafting legislation in a way that can contradict the

71. De Visser, A Cautionary Tale. Some Insights Regarding Judicial Activism from the National Experience, paper presented at the Conference Judicial activism at the Court of Justice, organized by Maastricht University, 1011 Oct. 2011.

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legislatures intentions,72 as Sturgeon illustrates perfectly. But one could argue that in choosing between the two evils of either annulling the Regulation or interpreting it in conformity with the equal treatment principle by extending the right to compensation to the unduly excluded group, the ECJ actually chose the option that was closest to the legislatures intention. For the piece of legislation was adopted in the interest of consumer protection, and it can hence be assumed that it would be closer to the legislatures intention itself of course a difficult fiction to extend that notion of protection to an extra group than to do away with that protection altogether by annulment of the relevant provisions. And indeed, although as in most cases of judicial activism there certainly is a self-empowering element in the judgment, one could also choose a less cynical perspective and say that the Court acted out of a genuine concern for consumer protection. In any case, regardless of the Courts motive, the judgment is a victory for consumer protection. What would have been the consequence had the ECJ invalidated the relevant provisions of the Regulation as proposed by the Advocate General? The airline companies would have had a field day. They would for the time being not have been required to pay compensation to anyone, neither the passengers of delayed flights nor those of cancelled flights. The European legislature would most likely have sought to address the issue, but this would have left a significant time-gap in which the travelling European citizen would have had to pay the price. It is true that on the basis of Article 264(2) TFEU, the ECJ could have decided to maintain the effects of the Regulation for a brief period to be fixed in such a way as to allow the Council to remedy the infringements. That way, passengers of cancelled flights 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 the legislation in their favour by major lobby-investments, and it is not at all certain that a new compensation regime would have been put in place. The achieved result could just as well have been to remedy the unequal treatment by levelling-down, doing away with compensation for all passengers. It could be argued that as long as there is a certain degree of capture of the European legislative 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 a classic representative chamber, such as the European Parliament, is not the dominant institution in EU governance, private interest groups do not have to compete with democratic party politics in the EU policy-making process. Concentrated interests such as business interests and multinational firms have a greater incentive to organize at the European level than diffuse interests, such as consumer groups or trade unions, and the EU policy process is pluralist rather

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bias in that same process,74 the Court is right to counterbalance some of these defects.75 Indeed, Sturgeon demonstrates that the Court is willing to oppose the free market. Many legal scholars have addressed the tension between the extensive interpretation of market freedoms with social values, interests and rights.76 Of course, the project of European integration has seen a certain amount of deregulation and political policies that some would call neo-liberal. And the ECJ has been one of the key actors77 in that process and the creation of its central pillar, the internal market, by actively engaging in negative integration, i.e. striking down national barriers to trade. It is the ECJ that has constitutionalized market freedoms, that has engaged actively in negative integration with its deregulatory consequences, that has created the risk of a race to the bottom through the principle of mutual recognition, that applies the proportionality test with insatiable rigour, and that has developed the prohibition of discrimination on grounds of nationality into a market access test. As Maduro recognizes, the case-law of the European Court of Justice on the market integration rules of the EC Treaty (mainly free movement and competition rules) has, at times, appeared to subscribe a neo-liberal, laissez faire, conception of the European Economic Constitution and promoted de-regulatory consequences at national level with negative effects on social rights.78 But of course, the Court of Justice has to work with the materials it has been given, 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 the owners of capital than is the case for policy compromises at the domestic level in Europe. See Follesdal and Hix, Why there is a democratic deficit in the EU: A response to Majone and Moravcsik, 44 JCMS (2006), 537. On this point Follesdal and Hix refer to Streeck and Schmitter, From National corporatism to transnational pluralism: Organized interests in the Single European Market, 19 Politics and Society (1991), 13364. 74. See Scharpf, Crisis and Choice in European Social Democracy (Cornell University Press, 1999). For a critical response see Moravcsik, In defence of the demoratic deficit: Reassessing legitimacy in the European Union, 40 JCMS (2002), 603624. 75. See on this point Kaupa, What if the ECJ is NOT an activist court, but still has a neoliberal bias? Paper presented at the Conference Judicial activism at the Court of Justice, organized by Maastricht University, 1011 Oct. 2011. 76. For a selection, see Maduro, Striking the elusive balance between economic freedom and social rights in the European Union, in Alston, Cassese, Lalumire and Leuprecht (Eds.), An EU Human Rights Agenda for the New Millennium (Hart Publishing, 1999), pp. 449472; Weatherill, Recent case law concerning the free movement of goods: Mapping the frontiers of market deregulation, 36 CML Rev. (1999), 51; Shaw (Ed.), Social Law and Policy in an Evolving European Union (Hart Publishing, 2000); De Brca (Ed.), EU Law and the Welfare State, 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,The Delusions of Global Capitalism (Granta, 1998), p. 9. 78. Maduro, op. cit. supra note 76.

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act as an independent institution in a vacuum. That is certainly important to remember when setting out on a quest to establish whether a certain political/economic philosophy can be seen to permeate its judgments. As Kaupa has pointed out, if Fritz Scharpfs well-known thesis that the European legal structure has a neoliberal bias inscribed into it is true, this would mean that should the case law be found supportive of a neo-liberal approach to markets and societies, the ECJ would be merely doing what it was designed to do.79 Nevertheless, the autonomous influence of the ECJ is substantial and it has a reputation for straying from the narrow path of textual interpretation of the Treaty into the deep and dense forest of context and teleology. When it does, it adds something of its own, and this is the salient part. This independent contribution cannot, in this authors opinion, be found unequivocally supportive of a neo-liberal approach to markets and societies.80 In the area of citizenship, for example, the Court has traditionally been considered very activist, and in numerous controversial cases it has extended welfare rights to non-nationals.81 Here, the ECJ has acted as a very socially activist court. In order to come to a balanced view of the ECJs case law, it is therefore necessary to extend the analysis beyond the internal market and look at areas such as citizenship, environment and consumer protection. If the ECJ is found to be equally activist in these domains, accusations of a neo-liberal bias largely lose their force. Regulation 261/2004 is a strong piece of consumer protection, and its expansive interpretation by Sturgeon is indeed such 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 to guarantee to their customers no matter how low the price of their product; certain things that consumers cannot opt-out of voluntarily. It opposes the idea that the mechanisms of the market will make sure that everyone involved get what 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, or why the EU cannot be a social market economy, 8 Socio-Economic Review (2010), 211 250 and Scharpf, The European social model: Coping with the challenges of diversity, 40 JCMS (2002), 645670. 80. For an interesting explanation of the ECJs activism as non-political perfection-seeking judicial interpretation, see Bomhoff, Perfectionism in European Law, 14 CYELS (2012), 75100. 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, Vatsouras and Koupatantze v. Arbeitsgemeinschaft (ARGE) Nurnberg 900, [2009] ECR I-4585; C-192/05, Tas-Hagen v. Raadskamer WUBO van de Pensioen- en Uitkeringsraad, [2006] ECR I-10451; and C-499/06, Nerkowska v. Zaklad Ubezpieczen Spolecznych Oddzial w Koszalinie, [2008] ECR I-3993.

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neo-liberal bias in the ECJs output, Sturgeon and the passenger-oriented case law that preceded it certainly serve as a counterexample. So, Sturgeon is not a case of the ECJ trampling on social values to benefit the (internal) market as it allegedly did in Viking and Laval if anything, it would be the other way around. Often-heard concerns about national regulatory autonomy, as for example in the education cases Commission v. Belgium, Commission v. Austria, Bidar and Morgan and Bucher,82 also do not really come into play here. Of course, the ECJ now requires national legal systems to provide for damages in cases of delays, but this is simply an extension of the damages in cases of cancellations, and the regulation of the air sector has been harmonized anyway. If one had to categorize the activism in Sturgeon it would probably be most comparable to Mangold, where the ECJ held that the prohibition of discrimination on grounds of age was a general principle of EU law, binding the Member States when implementing EU law, even though Directive 2000/78 on age discrimination lacked direct effect as the implementation deadline had not yet passed and the dispute involved two private parties.83 Many commentators reacted that the ECJ had illegitimately used a general principle and a piece of secondary legislation to expand the duties on private parties against the will of the legislature. Although the cases are factually and legally very different, the Sturgeon judgment does feature a comparable magic potion of a piece of secondary legislation and a general principle of EU law that will make the rights and duties of private parties as created by the legislature grow to unintended proportions. It should be noted that the general principle of equality is a slippery concept in this respect. There is an inherent tension here with practical reality, which entails that decision-making will often have to distinguish between groups. To paraphrase an American judgment, the principle of equality must co-exist with the practical necessity that the law classifies.84 For exactly this reason, the only question the German Constitutional Court will ask in reviewing statutes 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 an interventionist 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 Kln; Bucher v. Landrat des Kreises Dren, [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 (19981999), 256.

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general distinctions such as between passengers of delayed and cancelled flights? The ECJs expansive interpretation of the general principle of equality reflects a strong conviction that law and policy must be reasonable, rational and consistent. The high value attached to this idea can also be detected in the ECJs application of the proportionality test when applying the rule of reason in the context of the internal market. Very often, national legislation is held in breach of EU law not because there is no legitimate interest at stake, but because the ECJ opines that the interest is served in an inadequate or inconsistent way. Admittedly, the problem with this view is that it underestimates the intricacies of the legislative process, in which compromises have to be made, leading to sometimes slightly inconsistent outcomes. However, this mostly argues against annulment of legislation, while it is not incompatible with consistent interpretation. In constructive cooperation, the legislature can draft the piece of regulation to the best of its ability while the Court in turn remedies any unjustified inequalities. All the foregoing leads us to consider that the ECJs judgment in Sturgeon was activist, but that this activism could well be considered warranted in the broader institutional framework. In light of its signature expansionist approach in the area of the four freedoms, one could deem the ECJs forceful assertion of consumer rights in this area appropriate and justified. Several other cases, such as Viking and Laval, seem in fact more problematic; this raises the question whether there are additional factors at play that can explain the 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 German and Dutch courts taking issue with Sturgeon fit in the broader relationship between the European Court and its national colleagues. Defiant national judgments are nothing new, as stand-offs between the ECJ and national high courts have occurred from the very beginning of European integration. The Semoules and Cohn-Bendit judgments of the Conseil dEtat, the Solange I and Maastricht rulings of the Bundesverfassungsgericht, the Frontini judgment by the Italian Constitutional Court, and the Danish Constitutional Courts judgment in the Carlsen case are all well-known examples of national courts refusal to accept the ECJs case law, especially its claims to supremacy and ultimate 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 and Jurisprudence: Legal Change in its Social Context (Northwestern University Press, 1998) and Claes, The National Courts Mandate in the European Constitution (Hart, 2006).

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birth to interesting theories of constitutional pluralism87 and judicial dialogue,88 describing and explaining the dynamics between the ECJ and national courts in what is generally a conciliatory tone. Perhaps Sturgeon is just one of those episodes where the European and national judiciaries temporarily clash, without this being of too much consequence for the process of European integration. Still, the extent of the Sturgeon fallout is extraordinary, involving as it does several courts from various jurisdictions. Certainly, the large number of Sturgeon-related references should be seen in light of the airlines strategy to boycott the judgment en masse, deliberately letting matters be played out before the courts. Since the potential cost of having to pay compensation is substantially higher than any legal costs incurred in these court proceedings, it is worthwhile for the airlines to invest in the best legal aid available and try to prevent or at least stall the awards of claims by any available means. Nonetheless, their arguments have not fallen on deaf ears, as most references would not have been made if the national courts had not found any fault with the Sturgeon judgment. Moreover, the Sturgeon fallout does not simply concern a single obstinate national high court, but courts placed on the lower echelons 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 their judicial hierarchy through principles of supremacy and direct effect, and the preliminary reference procedure.89 Furthermore, unlike supreme courts, lower courts are used to the existence of a higher authority that might overturn their judgments and therefore feel less threatened by the ECJ. In addition, as De Witte has argued, national constitutional courts are more prone to challenge the ECJ than lower courts because of their specific duty to protect the national constitution.90 So what then is causing these unprecedented strong reactions from lower courts? Some might explain it by a knock-on effect of Eurosceptic judgments from higher courts. Recent years have seen an increasingly forceful resistance
87. See recently Avbelj and Komarek, Constitutional Pluralism in the European Union and Beyond (Hart, 2012). 88. See recently Fontanelli, Shaping the Rule of Law Through Dialogue: International and Supranational Experiences (Global Law Books, 2010). 89. Alter, Explaining national courts acceptance of European Court jurisprudence: A critical 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, 24032483. See also Dyevre, Judicial Non-Compliance in a Multi-Level, Non-Hierarchical Legal Order: Isolated Incident or Omen of Judicial Armageddon?, Paper presented at London School of Economics on 11 Oct. 2012, p. 6. 90. De Witte, Direct effect, supremacy and the nature of the legal order, in Craig and De Brca, The Evolution of EU Law (OUP, 2011), pp. 177213.

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by national high courts like the German Bundesverfassungsgericht and the Polish Constitutional Court, epitomized by the judgment of the Czech Constitutional Court of 14 February 2012, declaring the ECJs ruling in the Landtov case91 an ultra vires act.92 Dyevre has argued that stand-offs between domestic high courts and the ECJ can be seen as a complex game being played over the rivalrous good of jurisdiction. 93 He points out that both the ECJ and national high courts have an incentive to claim authority, but also that none of them has an interest in generating the constitutional crisis that would follow from an escalated conflict. Given that a constitutional crisis is a worse outcome than a jurisdictional loss, the best response for a domestic high court to an activist/assertive ECJ is judicial restraint.94 This however operates from the assumption that the cost of constitutional crisis is prohibitive for a national high court. As Dyevre points out, non-compliance may attract problems to domestic judges because a ruling that is regarded as detrimental to the countrys interests and EU membership may trigger adverse political reactions.95 In countries where EU membership is still supported by a majority of the population, judges can ill afford to issue judgments that would imperil their countrys full membership. Recently, however, the cost of constitutional crisis may be decreasing, through increasingly Eurosceptic sentiments in the European populations.96 Furthermore, Eurosceptic judgments of national high courts might themselves have the effect of lowering the cost of constitutional crisis, emboldening other national courts both high and low to take a more assertive stance towards the ECJ. The Sturgeon controversy predates the Czech Landtov ruling, but it might have tapped into an emerging Euroscepticism nonetheless. Although it is difficult to establish with any certainty whether the Eurosceptic environment has influenced the national rulings in question, and while we should not attach to much weight to these rather speculative observations, it is not unlikely that the national judges in question felt on somewhat safer ground opposing the ECJ now that support for EU integration among the general population is proving contested. But like the allegations of judicial activism, that in itself is not enough to explain the Sturgeon saga in its full extent. If we were really past a 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 EU ultra vires: judgment of 31 January 2012, Pl. S 5/12, Slovak Pensions XVII, 8 EuConst (2012), 323337. 93. Dyevre, op. cit. supra note 89, p. 2. 94. Ibid., p. 18. 95. Ibid. 96. Ibid, p. 43.

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should have seen many more Eurosceptic judgments from lower national courts joining the fray. The question therefore remains why this specific ECJ judgment has triggered the retorts that it did, and why it is still quite singular in causing these reactions. It is submitted that the judicial activism displayed in Sturgeon acted as a trigger, that the increasingly Eurosceptic environment operated 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 perhaps less obvious at first face value, but that is much more deeply embedded within the national legal cultures and hence judiciaries: a resistance against the increasing claim culture or compensation culture in Europe. Many will have noted that the distinctly American approach to governance that has been dubbed adversarial legalism is on the rise in the EU, leading to what Kelemen has called the spread of Eurolegalism.97 Adversarial legalism is characterized by 1) detailed, prescriptive rules 2) legalistic and adversarial approaches to regulatory enforcement and dispute resolution, 3) costly legal contestation and mega-lawyering techniques, 4) active judicial review of administrative decisions and practices and frequent judicial intervention and 5) frequent private litigation concerning regulatory policies.98 Overall, it empowers private actors to assert their legal rights through the emphasis on the enforcement of legal norms through transparent legal rules. Could it be that the fierce reactions from national judiciaries against the Sturgeon case law can partly be explained by a deeply engrained aversion to such American practices? Regulation through litigation was for a long time alien to Europe, where more informal, cooperative, and opaque approaches to regulation dominated, relying much less on lawyers, courts and private actions.99 In fact, as Kelemen points out, Europeans take distinctive pride in the absence of adversarial legalism.100 This may be changing, and as Kelemen points out, the EU may be the reason for it. He argues that this shift is caused by the process of deregulation and EU re-regulation linked to the creation of the internal market, where economic liberalization has undermined the traditional, cooperative national regulatory approaches. The EU-level re-regulation differs 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.

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of and diversity in the market, pressure EU policy-makers to rely on a more formal and transparent approach to regulation, backed by vigorous enforcement, often by private parties.101 Another contributing factor is the fragmented institutional structure of the EU, meaning that the re-regulation takes place in the context of a fragmented regulatory State with a powerful judicial system but a weak administrative apparatus. The saga related to Regulation 261/2004 culminating in the Sturgeon judgment is an example par excellence of the rise of Eurolegalism.102 The entire chain of events has shown an EU-level deregulation of the air transport sector, the adoption of consumer protection legislation providing clearly identifiable rights, the EU launching campaigns calling on consumers to enforce these rights, airlines forming pan-European interest groups to bring legal challenges against EU rights, the Commission taking coercive action against Member States that do not enforce consumer rights, passengers bringing floods of claims before national courts either individually or through newly erected firms such as Aviaclaim, EUclaim and Ticketclaim, which are widely advertising their services on the internet, soliciting clients to bring compensation claims against airlines.103 However, although it might be legitimate to object to the rise of adversarial legalism in our legal systems, it would be wrong therefore to side with the airlines on this issue and to resist an approach in support of consumers. For it should be remembered that the re-regulation in the form of transparent and enforceable rights and the ensuing claims and legal proceedings are the consequences of, and perhaps even defence mechanism against, the deregulation and liberalization connected to the internal market. To resist re-regulation would be to create an undesirable market without rules104 version of the internal market, in which important public interests are left unprotected. The ECJs aforementioned activism is therefore not only a
101. Ibid., pp. 89: the EU is encouraging the spread of adversarial legalism as a mode of governance that can harness private litigants and national courts for the decentralized enforcement of European law. Eurolegalism is emerging as a quite unexpected-and in many circles 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, by publicizing that it had received a claim in relation to the flight disruption caused by the eruption of the Iceland volcano in 2010 from an Irish passenger who had paid 34 to travel to the Canary Islands and was demanding 2,900 to cover food and accommodation. True colours shone through when Ryanair said that they would respond to the claims coming from bastards who paid 30 and are seeking 3,000 back by taking on 10 or 20 of the most ludicrous claims as test cases. Milmo, Ryanair to reject ludicrous Iceland volcano claims, The Guardian, 1 June 2010. 104. Concept borrowed from A.G. Tizzano, Opinion delivered on 25 March 2004 in Case C-442/02, Caixabank France, [2004] ECR I-08961, para 63.

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necessary part of Eurolegalism, it is also desirable, as a counterweight to the deregulatory effects of market liberalization. Before the liberalization of air transport most of the sector operated through national airlines, State-owned enterprises with a legal status varying from being part of government to stock companies with the State as a regular shareholder, which allowed the public to influence the airlines and their behaviour directly. Quality standards could be imposed and adapted without having to resort to the (arduous) enactment of static legislation, to be enforced in courts. Not only has privatization meant that private parties have been able to generate profit from what used to be a public service, banking on the guaranteed demand of transport as a necessity of (modern) life, it has also become more difficult for the public to make sure that common interests and values are served. Of course, privatization can also be projected to bring about advantages to the consumer (wider variety of choice in terms of price and quality) and the public at large (no public risk, no public costs). But it should be recognized that bolstering the rights of the consumer is necessary to counterbalance the loss of control by the citizen. This indeed means that we are increasingly turned into market citizens, who relate to each other and to society at large in a rational, individualistic and self-interested mind-set. If this sounds unappealing, or un-European, then the idea of market integration through deregulation and liberalization should be challenged, not the idea of strong consumer protection through expansive interpretation of EU-level re-regulation. 5. Conclusion

This contribution has aimed to shed some light on the intense controversy that the Sturgeon judgment has caused both in legal scholarship and practice. We have found that although the judgment can be regarded as activist, this activism cannot be called unwarranted. Furthermore, while the ECJs judicial activism is likely to have been the main trigger of the strong reactions, it does not explain the full extent of the controversy. The increasingly Eurosceptic environment has probably played a role by emboldening national courts in their defiance. But most importantly we have postulated that the root cause lies with a national resistance against an increasing claim-culture in Europe. That makes the defiant judgments more understandable, but not less deplorable. Let us hope that the ECJs unequivocal confirmation of its Sturgeon line in Nelson and TUI Travel will mark the end of the rebellion. To drag on the dispute(s) would be damaging to legal certainty, would harm the credibility of the ECJ and damage the reputation of the national courts

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