18.8.2012

Official Journal of the European Union

C 250/8

(Case C-227/12)

2012/C 250/14

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicants: Koninklijke Luchtvaart Maatschappij N.V., TUI Airlines Nederland B.V., handelend onder de naam ArkeFly

Defendants: Staatssecretaris van Infrastructuur en Milieu

Questions referred

1.Should Articles 7 and 16 of the Regulation, together with the principle of Union loyalty, be interpreted in such a way that those Articles (in conjunction with national law) create for an administrative authority like the defendant the competence or the obligation to take enforcement action in respect of air carriers where they have failed to pay passengers compensation for delays, even where those passengers themselves have recourse to the courts in that regard, as laid down in Article 33 of the Montreal Convention?

2.If the previous question is answered in the affirmative, does the imposition of administrative orders for periodic penalty payments such as those at issue here also form part of the possibility of enforcement?

3.Does it make any difference in that regard whether:

(a)the air carriers have drawn passengers’ attention to those rights?

(b)in the case of an alleged lack of compliance with Article 14 of the Regulation, an order for periodic penalty payments imposed on the air carriers was preceded by the imposition of a sanction due to non compliance with that Article?

(c)the passengers concerned have made known to the air carriers whether or not they wish to receive that compensation?

(d)the defendant has not chosen the instrument of an order for coercive administrative action (where, in the case of the air carriers’ non compliance with the order, the defendant himself pays the passengers out at the air carriers’ expense), but rather, the instrument of an order for periodic penalty payments (where, in the case of non compliance with the order, the air carriers are liable to the defendant for an amount equal to the total compensation payable, which amount accrues to public funds)?

(1) Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

(2) The Convention concluded on 28 May 1999 in Montreal for the unification of certain rules for international carriage by air, signed by the European Community on 9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38).