Saturday, 9 September 2017

"We gave you an inch, please don't ask for a mile" - CJEU on the notion of 'distance' in Regulation 261/2004

With more than 20 preliminary references submitted and resolved to date one would think that the most contentious issues concerning the interpretation of Regulation No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights have already been addressed. Nothing could be more wrong, apparently. Last Thursday the CJEU delivered another interesting judgment on that matter - this time in case C-559/16 Bossen and Others. The case pertained to the calculation of a distance, which determines the amount of compensation due to passengers whose flights were delayed. 

Facts of the case

Factual circumstances of the case were pretty straightforward and involved a passenger booking a trip from Rome to Hamburg via Brussels. The flight was delayed by almost 4 hours meaning that the applicant was entitled to demand compensation analogous to the one which can be claimed by passengers of cancelled flights, in line with the earlier, pro-consumer case law of the CJEU (see cases Sturgeon and Nelson). The demand itself was not questioned by the air carrier - the bone of contention was rather the amount of the compensation due. This depended on the distance covered by the flight, which, pursuant to Article 7(4), should be calculated using the so-called great circle route method. What remained uncertain was whether, in the application of that method, account should be taken of the distance between the first point of departure and the final destination or whether the distance of each connecting flight should rather be considered.

Against this background, the national court decided to stay the proceedings and ask the CJEU whether the concept of ‘distance’ referred to in Article 7(1) of the regulation relates, in the case of air routes with connecting flights, only to the distance calculated between the first point of departure and the final destination on the basis of the ‘great circle’ method, regardless of the distance actually flown.

CJEU judgment

The Court of Justice decided to side with the air carriers this time and ruled that it is the distance between the first point of departure and the final destination that counts. Specific passenger itinerary, in particular the existence and the choice of particular connecting flights, should be irrelevant.

The ruling was supported by a rather concise reasoning. Further insights cannot also be drawn from the Advocate-General's opinion as the CJEU decided to proceed without one. According to the Court, in case of passengers whose flights were cancelled or delayed the damage which Regulation 261/2004 aims to remedy consists in depriving them of the opportunity to reorganise their travel arrangements freely. As a result "if, for one reason or another, they are absolutely required to reach their final destination at a particular time, they cannot avoid the loss of time inherent in the new situation, having no leeway in that regard" (para. 27). Understood in this way, the extent of the inconvenience suffered by a passenger concerned does not depend on the fact whether his final destination is reached by means of a direct flight or by a journey with connecting flights. Speaking more generally, the ruling appears to strike the right balance between the rights of passengers and interests of air carriers. The reasoning, however, begs the question why the distance covered by the flight is considered in the regulation at all. 

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