Posts Tagged Compensation

Air transport. The CJEU in Adriano Guaitoli v Easyjet. The not always clear delineation between the jurisdictional rules of the Brussels and Montreal regimes.

C-213/18 Adriano Guaitoli et al v Easyjet concerns the clearly complex relationship between the Brussels Ia jurisdictional regime, the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air, and the EU’s flight compensation Regulation 261/2004.

Montreal Article 33 determines which court has jurisdiction to hear an action for damages against an air carrier falling within the scope of that instrument. The reference has been made in the context of a cross-border dispute between an airline and a number of passengers, in relation to sums claimed by those passengers both by way of standardised compensation under Regulation 261/2004 and by way of individualised compensation for damage caused to them by the cancellation of an outward and a return flight, both operated by that airline.

Saugmandsgaard ØE had advised that the two instruments should be applied distributively, according to the nature of the relevant head of claim. The Court has followed: the court of a Member State hearing an action seeking to obtain both compliance with the flat-rate and standardised rights provided for in Regulation No 261/2004, and compensation for further damage falling within the scope of the Montreal Convention, must assess its jurisdiction, on the first head of claim, in the light of Article 7(1) BIa and, on the second head of claim, having regard to Article 33 Montreal.

This is also the result of Articles 67 and Article 71(1) BIa which allow the application of rules of jurisdiction relating to specific matters which are contained respectively in Union acts or in conventions to which the Member States are parties. Since air transport is such a specific matter, the rules of jurisdiction provided for by the Montreal Convention must be applicable within the regulatory framework laid down by it.

Note that per Article 17(3) BIa the consumer section ‘shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation’ (see also C‑464/18 Ryanair). The rule of special jurisdiction for the supply of services, A7(1)(b) BIa, designates as the court having jurisdiction to deal with a claim for compensation based on air transport contract of persons, at the applicant’s choice, that court which has territorial jurisdiction over the place of departure or place of arrival of the aircraft, as those places are agreed in that transport contract; see also C-88/17 Zurich Insurance.

The Court further held that Article 33 Montreal, like A7BIa, leads to the direct appointment of the territorially competent court within a Montreal State: it does not just just identify a State with jurisdiction as such.

The combined application of these rules inevitable means that unless claimants are happy to sue in Mozaik fashion, consolidation of the case will most likely take place in the domicile of the airline. In the Venn diagram of options, that is in most cases the only likely overlap.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2, Heading 2.2.11.1.

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Habitat Directive: ECJ rejects ‘mitigation measures’ in Briels and forces infrastructure works into the compensation procedure.

The widening of the A2 motorway towards Eindhoven, impacted on the Natura 2000 site Vlijmens Ven, Moerputten & Bossche Broek (‘the Natura 2000 site’). That site was designated by the Netherlands authorities as an SAC for, in particular, the natural habitat type molinia meadows, which is a non-priority habitat type.  The Minister provided for a certain number of measures aimed at lessening the environmental impact of the A2 motorway project.

Assessment concluded that the A2 motorway project would have negative implications for the existing area comprising the habitat type molinia meadows. The assessment also stated that sustainable conservation and development of the molinia meadows be achieved if the hydrological system was completed.  In that regard the A2 motorway project provides for improvements to the hydrological situation in Vlijmens Ven, which will allow the molinia meadows to expand on the site. The Minister states that this will allow for the development of a larger area of molinia meadows of higher quality, thereby ensuring that the conservation objectives for this habitat type are maintained through the creation of new molinia meadows.

Briels and Others brought an action against the two ministerial orders before the referring court. They take the view that the Minister could not lawfully adopt the orders for the A2 motorway project, given the negative implications of the widening of the A2 motorway for the Natura 2000 site in question. They argue that the development of new molinia meadows on the site, as provided for by the ministerial orders at issue in the main proceedings, could not be taken into account in the determination of whether the site’s integrity was affected. They submit that such a measure cannot be categorised as a ‘mitigating measure’, a concept which is, moreover, absent from the Habitats Directive.

The Netherlands Raad van State suggested that the criteria for determining whether the integrity of the site concerned is affected are not to be found either in the Habitats Directive or the Court’s case-law, whence the question ‘whether the expression “will not adversely affect the integrity of the site” in Article 6(3) of [the Habitats Directive] to be interpreted in such a way that, where the project affects the area of a protected natural habitat type within [a Natura 2000 site], the integrity of the site is not adversely affected if in the framework of the project an area of that natural habitat type of equal or greater size [to the existing area] is created within that site?’ and ‘[If not], is the creation of a new area of a natural habitat type then to be regarded in that case as a “compensatory measure” within the meaning of Article 6(4) of the [Habitats Directive]?

The Court held (at 28) that the application of the precautionary principle in the context of the implementation of Article 6(3) of the Habitats Directive requires the competent national authority to assess the implications of the project for the Natura 2000 site concerned in view of the site’s conservation objectives and taking into account the protective measures forming part of that project aimed at avoiding or reducing any direct adverse effects for the site, in order to ensure that it does not adversely affect the integrity of the site.

! However (at 29), protective measures provided for in a project which are aimed at compensating for the negative effects of the project on a Natura 2000 site cannot be taken into account in the assessment of the implications of the project provided for in Article 6(3).

(As a supporting argument (at 32), the Court suggested that as a rule, any positive effects of a future creation of a new habitat which is aimed at compensating for the loss of area and quality of that same habitat type on a protected site, even where the new area will be bigger and of higher quality, are highly difficult to forecast with any degree of certainty and, in any event, will be visible only several years into the future. Consequently, they cannot be taken into account at the procedural stage provided for in Article 6(3) of the Habitats Directive).

Authorisation for the project therefore needs to be given in accordance with the procedure for compensation measures, provided for in Article 6(4). (Which does not make the project impossible. It just makes the outcome less certain and at the least more lengthy).

Many developers (and authorities with them) had hoped that a different answer of the ECJ would have had the potential to reduce the amount of negative appropriate assessments.  Quod non.

Geert.

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Compensation, nature conservation and New York Law – The USSC in Koontz

In Koontz, the United States Supreme Court further specified the limitations applicable to agencies when they  impose limitations to the use of private property. In Koontz, under the New York State Environmental Quality Review Act (SEQRA), the owner of the land was denied wetland related permits. The relevant agency had demanded that Koontz either reduce the scope of the project and accept limiting conditions of use over the remainder, or finance conservation-related improvements to publicly held land some distance away.

The Supreme Court had earlier held in Nolan per the regulatory taking doctrine, that there must be an “essential nexus” between a “legitimate state interest” and the condition that the reviewing agency seeks to impose. In Koontz, it applies this limitation not just to the restrictions which the owner of the land has to accept vis-a-vis his own property, but also to any other government measure which imposed a financial burden on said owner. The lower courts had argued that the Nolan criteria do not apply to demands for money. The Supreme Court held that they do.

The finer details may escape me (see for excellent analysis Daniel Richmond and in Jeremy Kozin in the New York Law Journal) however it would seem that there is excellent comparative analysis to be made re the laws on regulatory takings and compensation measures in nature conservation.

Geert (thank you to Ludo Veuchelen for alerting me to the judgment).

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