In McDonagh v Ryanair (C-12/11) the European Court of Justice concluded that Ryanair were not entitled to treat the Icelandic Ash Cloud as a situation of ‘super-extraordinary circumstances’, thereby entitling them not to provide any care and assistance at all to their passengers under Article 9 of EC Regulation 261/2004.
However, before the Court was able even to consider the substantive argument about extraordinary circumstances, it had to deal with the Council of Europe’s contention that the claim made by Ms McDonagh was ‘inadmissible’. By this, it meant that the Claimant could not bring a claim, before her national courts, to recover the cost of the expenses that she had incurred in providing the care, assistance and accommodation that Ryanair should have provided her in the first place. In effect, the argument was that a breach of the Regulations is not actionable.
The Court was not persuaded by this argument. It is worth reproducing its reasoning on the point, in full:
20. The Court has already had occasion to explain that, when an air carrier fails to fulfil its obligations under Article 9 of Regulation No 261/2004, an air passenger is justified in claiming a right to compensation on the basis of the factors set out in those provisions (see, to that effect, Case C‑83/10 Sousa Rodríguez and Others  ECR I‑0000, paragraph 44) and that such a claim cannot be understood as seeking damages, by way of redress on an individual basis, for the harm resulting from the cancellation of the flight concerned in the conditions laid down, inter alia, in Article 22 of the Montreal Convention (see, to that effect, Sousa Rodríguez and Others, paragraph 38).
21 A claim such as that at issue in the main proceedings seeks to obtain, from the air carrier, equivalent compliance with its obligation to provide care arising from Articles 5(1)(b) and 9 of Regulation No 261/2004, an obligation which, it should be recalled, operates at an earlier stage than the system laid down by the Montreal Convention (see Case C‑549/07 Wallentin-Hermann  ECR I‑11061, paragraph 32, and Joined Cases C‑581/10 and C‑629/10 Nelson and Others  ECR I‑0000, paragraph 57).
22 The fact, noted in this connection by the Council, that each Member State designates a body responsible for the enforcement of Regulation No 261/2004 which, where appropriate, takes the measures necessary to ensure that the rights of passengers are respected and which each passenger may complain to about an alleged infringement of that regulation, in accordance with Article 16 of the regulation, is not such as to affect the right of a passenger to such reimbursement.
23 Article 16 cannot be interpreted as allowing only national bodies responsible for the enforcement of Regulation No 261/2004 to sanction the failure of air carriers to comply with their obligation laid down in Articles 5(1)(b) and 9 of that regulation to provide care.
Contrast Graham v Thomas Cook Airlines (2012) EWCA Civ 1355, in which the Claimant sought to bring a claim for damages for a breach of Article 8 of the EC Regulations (the Defendant having failed to provide her with a choice between reimbursement and rerouting). Lord Justice Toulson held that the regulation “does not confer a right to compensation for breach of article 8”, relying upon the fact that Civil Aviation Regulations (which provide for criminal enforcement mechanisms through the CAA in respect of a breach of the EC Regulations) “do not purport to impose on a carrier a statutory duty for breach of which an action for damages may be brought”. Somewhat more cryptically, however, he went on to state that “Insofar as there is a breach of article 8, the remedies for that breach are those set out in Article 8”.
It seems to me, therefore that the position is now as follows:
1. A passenger who is denied their rights under the Regulations (be it the right to fixed compensation, or care and assistance) can bring a claim in the County Courts to enforce the Regulations and compel the carrier to comply with them. Where the passenger has incurred individual expenses because of the failure of the carrier to provide care and assistance, the passenger’s remedy is an award of compensation equivalent to the reasonable cost of those expenses. Such an award is not, however, characterized as ‘damages’ (and so is not incompatible with the Montreal Convention). Instead, as Advocate General Geelhoed put it in the IATA case: “Such a claim evidently is aimed at forcing air carriers to comply with their obligations, irrespective of whether a passenger has suffered damages as a result of this non-compliance. In other words, the object of the action and the obligations of a carrier is identical’
2. However, a passenger cannot use the Regulations as a spring board for claiming damages for consequential loss which go beyond the obligations (in terms of care, assistance etc) that the carrier was required to provide under the Regulations. For example, a passenger whose flight is delayed and who suffers individual loss of earnings will be forced to bring a claim under the Montreal Convention, or at common law, as the case may be.