Study Of The Issues On The Application Of Liability Rules In Delay Under The EU Regulation 261/2004

The promulgation of the EU Regulation No.261/2004 replaced the EU Regulation No.295/91.The main purpose of EU Regulation No.261/2004 is to ensure a “high level” and “more comprehensive” protection for passengers in the event of denied boarding and cancellation or long delay of flight.However,the EU Regulation No.261/2004 has been subject to theoretical and practical disputes since its promulgation,and the judicial application effect is not satisfactory.The theoretical disputes mainly come from the problems of the Regulation itself.On one hand,the scope of application of the Regulation has an “extraterritorial” effect,and under certain circumstances,carrier or passenger of Third State would be subject to the Regulation.On the other hand,in terms of flight delay liability rules,the provisions of the Regulation and Montreal Convention 1999 have serious conflicts,which are mainly manifested in the following aspects: First,the definition of “flight delays” is vague and consistent with the standard of “delay at arrival” in Montreal Convention 1999 which is based on a long time judicial practice.Second,the carrier liability of flight delay in the Regulation is consistent with "damages caused by delay" in Article 19 of Montreal Convention 1999,the limit liability in Article 22 and the exclusive application of liability for delays delay compensation liability in Article 29.However,in the process of applying the Regulation,the CJEU has not only failed to resolve the flaws and disputes of the Regulation,but ignored the specific provisions of the Regulation and Montreal Convention 1999.What’s more,the controversy of the Regulation is more and more sharpen because of one after another typical cases sentenced by the CJEU.First of all,on the issue of the "extraterritoriality" of the scope of application of the Regulation,the U.S.District Court of Illinois finally adopted a conservative attitude and ruled out the application of the Regulations outside EU member states.However,the CJEU was radical.Through Emirates,Folkerts and Wegener,the scope of application of the Regulation is gradually expanded to the situation of "overseas transit" and "non-community carrier".Secondly,on the issue of the relationship between the Regulation and Montreal Convention 1999,the judicial practice of the CJEU is also not convincing.In Sturgeon,the liability for damages under the Regulation was forcibly applied to flight delays.Besides,the CJEU created a "three hours" delay compensation standard in the Nelson and proposed "two different kinds of damage theory" denies the conflict between the Regulation and Montreal Convention 1999.The CJEU’s approach seriously violated Montreal Convention 1999,which aroused widespread criticism from academia and dissatisfaction and opposition from a large number of carriers in practice.In our country,there are still many problems in legislation,such as unsystematic,unclear and poor operability in the protection of passenger rights.Although the Regulation are controversial,it is undeniable that the relevant legislation of the European Union still has a certain reference and reminder significance for our country in terms of the protection of passenger rights.In addition,in practice,Chinese carriers should respond to risks in response to the Regulation,take the take responsibility in the event of flight delays initially,advocate the application of Montreal Convention 1999 actively,and use “extraordinary circumstances” to defend themselves to minimize their own economic losses.At the same time,Chinese passengers can also use the Regulation to obtain a high level of protection.In the process of rights protection,passengers can take the method of selling the right to claim to a claim agency or make reasonable use of European small-amount litigation procedures to increase the success rate of claims.