1. Airhelp - information about cancellation, confusion around email addresses used
In this case the question was whether passengers received information about a cancellation of their flight (the time of the departure was moved forward by more than 6 hours which should be perceived as a cancellation - see last point mentioned in this post) more than two weeks before the flight was scheduled. This would have released the operating air carrier from an obligation to pay compensation, pursuant to Article 5(1)(c) Regulation 261/2004. The air carrier claimed to have sent the notification in good time. The passengers claimed it did not reach them as instead of using their private email addresses, the air carrier used an email address generated by the booking platform for the purposes of that reservation having been made. When is the information on cancellation then properly communicated to passengers?
AG Pikamäe stresses the importance of placing the burden of proof on having communicated the information about the flight's cancellation on the air carrier (para 26). This means that they should not be able to rely on the presumption from the E-Commerce Directive (Art 11) that electronic communication reaches the recipient when it is retrievable by them, as that would reverse the burden of proof from Regulation 261/2004 which should be seen as lex specialis (para 28). Consequently, if the CJEU agrees with the opinion, air carriers will need to confirm that the information has reached air passengers in order to claim that it was effectively communicated.
2. Corendong Airlines (C-395/20) - postponement of a flight - delay or cancellation, coin toss?
This opinion of AG Pikamäe raises questions, as he tries to differentiate between the cancellation and a delay, when an air carrier postpones the flight, i.e. changes the time of the departure of an aircraft until later, but without further changing the itinerary and with maintaining the same aircraft (para 25). The opinion is a bit confusing. First, it seems AG Pikamäe suggests to classify such a situation as a delay, as long as there is no proof of the air carrier's intention to abandon the flight, but rather that they aim at temporarily suspending it (para 25). It is a novel suggestion to look at the subjective intention of the air carrier, which could actually increase the legal uncertainty for air passengers trying to identify their rights. That uncertainty is further increased by the second suggestion of AG Pikamäe, where he mentions that it could still be a cancellation if there was a 'significant' delay in the time of departure and if other circumstances pointed towards this (para 27). Commission's suggestion to focus on more objective elements to determine whether the flight was cancelled seems more passenger-friendly. The focus then would be e.g. on whether the change in departure time followed from a direct and planned action of the air carrier to change the departure time vs whether the change was not planned and not necessarily influenced by the carrier (then it would be a delay). The change in the timetable weeks before the departure time would have then indeed pointed towards cancellation rather than delay classification, if we followed the Commission's reasoning but not necessarily the AG's advice.
3. Corendon Airlines (joined cases) - when do passengers have confirmed flight reservations?
When the travel is booked with a travel agency, it may occur that the flight times registered on the confirmation of such a reservation will not match the times of flights organised by the air carrier. One of the questions that arises is when should passengers rely on having a 'confirmed reservation', against which they could compare the actual travel times to determine any delays/cancellations occurring. AG Pikamäe considers the document stating that the travel reservation has been accepted by the travel agency (Reiseanmeldung) insufficient as a proof of a confirmed flight reservation. Only if that document would entitle the passengers to travel to a specific destination at a specific time could it be seen as a proof of a confirmed reservation and the intention of the carrier to be bound by the promises made in it. Informational documents, such as the acceptance of a travel reservation, do not have such a character (para 53). Especially if they indicate to the passengers that the flight times have only been estimated and require further confirmation (para 56).
However, if there is another proof of the confirmed reservation than a travel ticket, that other document may indicate scheduled travel times, on which the passengers may rely (para 79). Further, the fact that the travel agency did not notify the air carrier about making travel arrangements for the passengers prior to concluding contracts with them, does not hinder the recognition of an air carrier as an operating air carrier if they subsequently agree to transport such passengers (para 68).
The next point of this opinion concerns qualification of a change in the planned time of departure to an earlier time. This has not been directly regulated in Regulation 261/2004 and AG Pikamäe differentiates it from a delay due to a different impact that such an action could have on passengers. A significant move forward of the planned time of departure should then be seen as a cancellation of a flight, due to the fact that the air carrier abandons its original travel plan (para 90). Moving the flight time forward always results from a decision of an air carrier to change the flight time (para 91) (which fits again with the Commission's point of view, as outlined above). AG gives an indication when the change should be considered as 'significant' - when a passenger who was taking proper actions to make the originally scheduled flight would not have managed to board the newly re-scheduled flight (para 99).
As moving the flight time forward does not relate to a delay, operating air carriers could not try to minimise the amount of compensation paid to passengers by claiming they minimised their delay in reaching their final destination, pursuant to Article 7(2) Regulation 261/2004 (para 112). What they could, however, achieve by moving the flight time forward is that this would be perceived as them offering the passengers a re-routing of a cancelled flight at the earliest opportunity, pursuant to Article 8(1)(b) Regulation 261/2004 (para 123).
Finally, the operating air carrier should provide passengers not only with the information on their rights as a result of a flight cancellation, but also with information on their name and address to which passengers could direct their claims, as well as the mention of any documents that they should attach to their claim (para 133).
