The ash cloud crisis is at the front of everybody’s mind and the role in it of the EU Denied Boarding Regulations (EC261) will no doubt be the subject of much discussion. The following article deals with a decision of the Court of Justice of the European Union (CJ), on EC261 following on the decision in Wallentin – Hermann v Alitalia case which has serious consequences for airlines, regardless of the ash cloud crisis.
The Sturgeons booked return tickets from Frankfurt to Toronto with Condor. They checked in for their return flight but were subsequently informed that the flight was cancelled. Eventually they were checked in at the counter of another airline and landed in Frankfurt some 25 hours later than their scheduled arrival time.
Böck and Lepuschitz booked return flights from Vienna to Mexico City via Paris with Air France. Their flight from Mexico City to Paris was cancelled due to a technical issue with the aircraft and the need for the crew to observe the proscribed rest period. Their arrival time in Vienna was some 22 hours later than their scheduled arrival time.
The Sturgeons and Böck and Lepuschitz claimed for cancellation compensation pursuant to Articles 5 and 7 of EC261. Condor and Air France rebuffed these claims on the basis that (a) that compensation under EC261 was not applicable as the flights were delayed and (b) the late arrival of the flights was due to technical faults which are covered by the “extraordinary circumstances” defence.
The case arose through references of specific questions to the CJ for a preliminary ruling from the national courts in each of the above cases.
In reaching a decision, the CJ set for itself the following questions:
Where a delay is long, must it be treated as a flight cancellation for the purposes of EC261?
Should EC261 be interpreted, for the purposes of compensation, so that passengers on delayed flights are treated as passengers whose flights have been cancelled?
Is a technical problem with an aircraft that causes a delay covered by the extraordinary circumstances defence?
The CJ decided that if a flight is completed in accordance with the pre-arranged itinerary of the carrier and the only element changed is that the actual departure time is later that the scheduled departure time, then the flight is treated as delayed for the purposes of EC261.
By contrast, where the flight in question is effectively abandoned and the affected passengers rolled on to a flight which was planned independently of the abandoned flight, it shall be considered cancelled for the purposes of EC261.
As such, the CJ concluded that a delayed flight, irrespective of the length of delay, is not a cancelled flight for the purposes of EC261 where the flight is operated in accordance with the carrier’s pre-arranged planning.
In relation to the question of compensation for delay, it was noted that EC261 does not provide for an explicit right to compensation where a passenger suffers delay but that it is necessary for the Court to consider the context in which EC261 occurred and the objectives pursued by its rules.
It was held that a high level of protection was sought for air passengers regardless of whether they were denied boarding as a result of delay or cancellation and that all Community acts must be interpreted with the principle of equal treatment in mind so that comparable situations must not be treated differently.
The CJ decided that passengers who are denied boarding as a result of cancellation or delay suffer the same loss, namely, a loss of time. A passenger whose flight is cancelled is afforded the right to compensation where they reach their final destination three or more hours after they were scheduled to arrive. On this basis the CJ ruled that a passenger who reaches their final destination three or more hours after scheduled arrival time as a result of delay is entitled to compensation pursuant to Article 7 of EC261.
It should be noted that this decision is a preliminary ruling and thus open to further challenge. Whether an interpretation that implies a right to compensation where such a right is not explicitly set out in the wording of EC261 will be upheld, is by no means certain.
The CJ dealt with the third question above fairly summarily. It concluded that a technical problem with an aircraft which leads to delay of a flight is not covered by the extraordinary circumstances defence unless the problem arises from events which are beyond the actual control of an air carrier and which are not part of the normal exercise of its activity as an air carrier.
This final interpretation reinforces the difficulty faced by airlines in successfully arguing the extraordinary circumstances defence with only apparently abstract reasons for cancellation or delay seeming to be applicable.
There is little doubt that the adage “bad cases make bad law” applies here. Both cases discussed above were extreme examples of delay such that that CJ found that the inconvenience suffered by the claimants was equivalent to that which they would have suffered if the flights had been cancelled.
There does appear to be scope to argue in future that, even if the delay was of more than three hours’ duration, the flight eventually operated as part of the carrier’s pre-arranged planning and should therefore be treated in line with the express wording of EC261 whereby compensation is only available to a passenger where their flight has been cancelled.
It is likely that further cases will come before the national courts of the EC provoking further references to the CJ. The message for airlines on the subject of compensation for delay must therefore be to “watch this space”.