Thursday, 7 June 2018

Connecting fights saga tbc - AG Tanchev in flightright (C-186/17)

Last week we have discussed the judgement of the CJEU in the case Wegener (C-537/17), in which the CJEU confirmed that it doesn't matter whether a delay upon the arrival at the final destination was caused by a delay of one of the connecting flights, as long as they were part of one booking, the passenger could claim compensation from art. 7 Regulation 261/2004. Yesterday, AG Tanchev had to address this issue again in an opinion to the case flightright (C-186/17).

The difference between the factual situation of these two cases was that the contractual air carrier differed from the operating air carriers. In this case, passenger booked his flights through a tour organiser, who had a contract with Air Berlin. The latter air carrier has, however, on the basis of code sharing agreements, allowed the contract to be performed by Iberia Express, Iberia and Avianca - three air carriers for three flights of the whole, connected journey from Berlin via Madrid (first flight) and via San Jose (Costa Rica) (second flight) to San Salvador (El Salvador) (third flight). The first flight, operated by Iberia Express, was delayed - only by about an hour, but this led to a missed connection and arrival in El Salvador with 49-hour delay. 

Surprisingly, the German court dismissed the claim against Iberia Express, claiming that they weren't the operating air carrier on all flights and that they were not involved in the planning and booking of the journey, and, therefore, could not have taken the operational risk of short connection times. This would have been an acceptable reasoning except that provisions of the Regulation 261/2004 are crystal clear in assigning the obligations towards passengers (incl. compensatory ones) to operating carriers - regardless whether they have had contractual relationships with the passenger and, therefore, whether they have planned the flights. On the basis of code sharing agreements, the operating carrier could possibly try to claim redress from other involved parties (on the basis of Art. 13 Reg 261/2004). Such division of liability facilitates high level of consumer protection - as it is easiest for passengers to turn towards the operating carrier with their claims - as well as prevents possible manipulation of flights by air carriers, trying to evade liability by splitting up flights (see para 41 of the opinion, as well).

AG Tanchev rightly then advises the CJEU to recognise the need to hold the operating air carrier liable.

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