The EU Commission confirmed it stands behind the principle upon which UK Court of Appeal dismissed two cases brought by disabled passengers against airlines.
"In the case you referred to [Tony Hook vs. British Airways], the Appellant complained that on both the outward and return flights the Respondent failed to make reasonable efforts to meet his seating needs contrary to Article 10 and Annex II of Regulation (EC) No.1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air. The Appellant is a disabled person within the meaning of Article 2(a) of the EC Regulation," Helen Kearns, spokesperson for the EU Transport Commissioner told Reduced Mobility Rights. "In its ruling, the High Court considered that there is no support for the proposition that Regulation 1107/2006 creates a private law cause of action for which damages could be sought, and upheld the exclusivity of the Montreal Convention in relation to the provision of compensation for disabled people on board an aircraft."
"The services of the Commission agree that Regulation 1107/2006 does not override the Montreal Convention. The Montreal Convention forms an integral part of the Community legal order. Community institutions and Member States are bound by international treaties concluded by the Community and, consequently those agreements have primacy over secondary Community legislation such as Regulation 1107/2006," Helen Kearns said.
Human rights campaigners voiced their frustration upon publication of the Court of Appeal's ruling, highlighting its serious implications. "This decision threatens to render anti-discrimination legislation ineffective in most in-flight incidents of discrimination by airlines," Gwendolen Morgan, a solicitor specialising in public law, human rights and equality law at Bindmans LLP said. "In short, once a boarding pass has been issued, there would be no remedy of damages for injury to feelings - although one could still seek a declaration that there had been discrimination."
The EU Commission underlines the scope of EU 1107/2006. "Regulation 1107/2006 represents an important step in favour of people with reduced mobility or disabilities when they travel by air, by providing them equality of travel on the same basis as other passengers when they use air transport and providing them with appropriate assistance, free of charge, at airports and during the flights," Kearns explained.
"The enforcement of this Regulation is an obligation on Member States with Articles 14 and 15 requiring them to put in place National Enforcement Bodies (NEBs) and dissuasive penalty. Penalties regimes are specific to each Member State concerned. The administrative enforcement regime which is operated by the Civil Aviation Authority is independent from actions that an individual passenger may bring to court. Consequently, the fact that the High Court did not identify Regulation 1107/2006 as an instrument for bringing an individual action for which damages maybe awarded does not affect the mediation role and assistance provided by NEBs to individual passengers and the efficiency of the enforcement actions which they may take against air carriers that would not comply with the Regulation," Kearns added.
However, in the UK, the Civil Aviation Authority does not have a penalty regime in place. "Unfortunately, [enforcement] powers are not very flexible or proportionate and make it difficult for us to take action," Dame Deirdre Hutton, Chair of the Civil Aviation Authority said.
The Department for Transport is responsible for providing the CAA with civil enforcement powers. Reduced Mobility Rights understands the DfT has yet to even begin such process.
“We are currently considering the judgement from the Court of Appeal in the matter of Stott vs. Thomas Cook and Hook vs British Airways. This is a complex legal area and we are carefully considering the implications of the ruling and how best to address the issues that it raises,” a DfT spokesperson said.
The DfT spokesperson declined to comment on what is the Department for Transport advice to disabled passengers seeking to file individually for breaches of EU 1107/2006 under Regulation 9.
The deafening silence and inaction of the Department for Transport are cause for concern for disabled passengers and disability campaigners, especially at a time when the UK hosts the 2012 Paralympics.