Thursday, 31 May 2018

Bad news for airlines - CJEU in Wegener (C-537/17)

CJEU tackled today a controversial topic of whether the Regulation 261/2004 on air passenger rights should protect passengers during connected flights where the transfer occurs outside the territory of the EU and the disruption impacts that second leg of the journey. Short answer, which will not satisfy the air carriers: yes, it should. 

In the Wegener judgment (C-537/17) the passenger flew with Royal Air Maroc from Berlin to Agadir (Morocco) with a transfer in Casablanca. Passenger made one reservation for a journey between Berlin and Agadir, and followed the air carrier’s offer to fly with a stopover in Casablanca. The flight from Berlin was delayed, which resulted in the passenger being denied boarding in Casablanca, as his seat was already given away, and subsequently having to take a later flight, which led to a delay of four hours.

It is clear that the air carrier may not justify denying boarding to passengers by claiming his belief that they won’t make the connection due to an earlier delay (see previous case C-321/11 German Rodriguez) nor is it contested that a delay of more than three hours in reaching the final destination entitles passengers to compensation from art 7 Reg 261/2004, even if the first of the connected flights didn’t have such a delay (see case C-11/11 Folkerts) (para 16-18).

The difference between the current case and that of Folkerts is that in Folkerts the stopover was in the EU whilst in this case it took place outside it. Pursuant to art 3 Reg 261/2004 it encompasses within its scope flights departing from an airport in the EU to a third country, regardless whether the air carrier is an EU air carrier. So far the airlines kept arguing that in case of connected flights, where the transfer occurs outside the EU, the second flight as a separate flight does not fall within the scope of application of Reg 261/2004 (para 15).

Does the CJEU take that into account? Not at all. There is none consideration given to the fact where the stopove occurs. The only importance was awarded by the CJEU to the fact that the flights were connected and booked as a single unit. 

The CJEU could have at least made mention of the need for a high level of air passenger protection, as it does so in many other judgments in this area, and further could have highlighted that without such an interpretation passengers flying from Berlin to Agadir could be treated differently if their transfer occurred either in Casablanca or in Rome. The latter could introduce unequal treatment for comparable situations and possibly negatively impact the market, as some connections would be more favourable than others (no longer only economically but also legally).

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