Between September 2013 and June 2014, six district court judges tasked with determining the enforceability of European Union Regulation (EC) No 261/2004 (“EU 261”) by United States courts unanimously agreed that EU 261, the regulation that entitles certain passengers to fixed compensation for flight cancellations and long delays, does not create a private cause of action that can be enforced in U.S. courts.1 However, this consensus did not resolve the issue of whether a passenger seeking to recover EU 261 compensation could do so in the United States by filing a complaint in a U.S. court for an airline’s “violation of EU 261.” In all six actions, plaintiffs sought a review by the U.S. Court of Appeals for the Seventh Circuit. Briefing in five of the six appeals was stayed while the Seventh Circuit decided the first-filed appeal in Volodarskiy v. Delta.2 On April 10, 2015, the Seventh Circuit issued its opinion in Volodarskiy and affirmed the district court’s decision dismissing the plaintiffs’ claim for violation of EU 261 because the text of EU 261 limits enforcement of EU 261 to the courts of the EU Member States and does not provide a private right of action outside those jurisdictions.
The Seventh Circuit based its decision on the text of EU 261, as this was the focus of both Plaintiffs’ and Delta’s arguments. Plaintiffs, emphasizing the absence of an explicit forum-limitation clause and broadly interpreting phrases such as “procedures of national law” and “competent courts or bodies,” contended that EU 261 could be enforced in any court pursuant to that country’s procedural laws. Delta focused on the regulation’s references to “EU Member States” and drew upon the EU legal principles of “subsidiarity” and “legal certainty” to argue that enforcement of EU 261 is limited to courts in the EU Member States.
The Court of Appeals agreed with Delta’s interpretation. Although acknowledging that the text of EU 261 did not expressly limit its enforcement, the Seventh Circuit found that “it also doesn’t clearly empower tribunals in nonmember countries to enforce the compensation system. And the text and structure of the regulation indicate that passenger claims for compensation due from air carriers are limited to administrative bodies and courts in EU Member States.” Moreover, the Court of Appeals found that its interpretation was reinforced by the principle of “subsidiarity,” pursuant to which EU Member States have authority to determine how EU regulations should be enforced. The court also recognized that the principle of “legal certainty,” which emphasizes the uniform enforcement of EU regulations by the EU Member States, with the European Court of Justice acting as the ultimate authority to resolve conflicts, also supported the narrower interpretation of EU 261. The Seventh Circuit was careful to note, however, that there are limits to how far the legal certainty principle should be extended and that there could be situations to which it would not apply. Nevertheless, it found that where, as here, the EU law is “fraught with uncertainty,” the application of an EU law by a U.S. court “risks offending principles of international comity.”
Finding that the text of EU 261 was sufficient to dismiss plaintiffs’ direct claim for violation of EU 261, the court declined to address Delta’s ADA preemption argument. The Seventh Circuit did, however, discuss the doctrine of forum non conveniens, which had not been raised by either party. In a passing comment, the court suggested that the doctrine of forum non conveniens also potentially could have supported a motion to dismiss the complaint. For now, the Seventh Circuit’s decision affirming the dismissal of plaintiffs’ direct EU 261 claims is enough to confirm the airlines’ consistent position that EU 261 does not provide the basis for a private right of action enforceable in U.S. courts.
1 Lozano v. Continental Airlines, Inc., No. 11 C 8258, 2013 WL 5408652 (N.D. Ill. Sept. 26, 2013) (Nordberg, S.J.); Volodarskiy v. Delta Air Lines, Inc., No. 11 C 782, 2013 WL 5645776 (N.D. Ill. Oct. 16, 2013), (Chang, J.); Giannopoulos v. Iberia, Líneas Aéreas de España, S.A., No. 11 C 775, 2014 WL 551603 (N.D. Ill. Feb. 12, 2014) (Durkin, J.); Polinovsky v. Deutsche Lufthansa, AG, No. 11 C 780, 2014 WL 958666 (N.D. Ill. Mar. 12, 2014) (Coleman, J.); Gurevich v. Compagnia Aereas Italiana, No. 11 C 1890, Opinion and Order [Dkt No. 104] (N.D. Ill. Mar. 18, 2014) (Coleman, J.); Bergman v. United Airlines, Inc., No. 12 C 7040, Order [Dkt No. 46] (N.D. Ill. June 18, 2014).
2 See No. 13-3521, Opinion [ECF No. 36] (7th Cir. decided Apr. 10, 2015).