The passenger’s right to compensation in the event of flight delays operated by a non-EU carrier

Regulation CE 261/2004 applies to flights by non-Community carriers out of EU airspace even if flight 1 or 2 lands outside the EU. The necessary starting point here is that there is no requirement in Regulation CE 261/2004 that they should land in the EU. Regulation CE 261/2004 takes effect when the carrier is present in the EU and it imposes a contingent liability on the carrier at that point. The liability may never crystallise but if it does do so, it will crystallise outside the jurisdiction. It does not help Emirates to argue that the delay on flight 2 has to be caused by a delay on flight 1 within EU jurisdiction: that does not itself show that the territoriality principle has been contravened. On the compatibility between Regulation CE 261/2004 and Montreal Convention, it should be underlined that the Montreal Convention is not a pre-accession treaty to which Article 351 TFEU applies, it was ratified in by the UK in 2004, after the UK became a member of the EU. The UK entered into the Montreal Convention with the full knowledge of the EU and therefore no doubt with the intention that the UK should continue to perform certain obligations under it.

Gloria Giorgi, Il diritto del passeggero al risarcimento del danno in caso di ritardo del volo operato da un vettore non comunitario in "RIVISTA ITALIANA DI DIRITTO DEL TURISMO" 27/2019, pp 442-478, DOI: 10.3280/DT2019-027006