26 February 2013: CJEU judgment in the case Folkerts (C-11/11)
The past few judgments of the CJEU made it pretty clear that passengers of flights that get delayed by more than 3 hours may claim compensation from the airlines on the basis of Regulation No 261/2004 (Sturgeon and Others, Nelson and Others). New issues keep on arising though, with airlines trying to creatively protect themselves from having to pay out any money. The recent issue was what happens when a flight is delayed by less than 3 hours, however, a passenger misses his connection due to that delay (which of course left according to the schedule), and ultimately arrives at his final destination with a delay of more than 3 hours.
This has happened to Mrs Folkerts who was traveling from Bremen to Asunción - with connecting flights in Paris and São Paulo. The flight from Bremen was delayed by ca 2,5 hours, which meant Mrs Folkerts missed her connecting flight in Paris. As a result she arrived at her final destination only 11 hours after the originally scheduled arrival time.The airline (Air France) refused to pay her compensation for a delayed flight, claiming that the flight from Bremen to Paris was delayed for less than 3 hours and the following flights were not delayed at all.
The CJEU again underlined that a flight's delay causes passengers to suffer irreversible loss of time and inconvenience comparable to when a flight is cancelled (Par. 32). This inconvenience materialises only on arrival at the final destination, and, therefore, the delay should be calculated in relation to the scheduled arrival time at the destination. (Par. 33) The Regulation defines 'final destination' in Art. 2(h) as:
"destination on the ticket presented at the
check-in counter or, in the case of directly connecting flights, the
destination of the last flight"
This all means that when airlines have to calculate whether to pay out compensation of Art. 7 of the Regulation to the consumers they should only look at the delay beyond the scheduled time of arrival at the final destination - the destination of the last flight taken by the passenger. (Par. 35) The airlines will not be obliged to pay this compensation if the delay was caused by extraordinary circumstances. (Par. 43)
