Interpretation favours air passengers - CJEU in Cymdek (C-20/24)

In Cymdek case (C-20/24) Polish court asked the CJEU to further interpret provisions of Regulation 261/2004 on air passenger rights regarding proof of travel (reservation) and the concept of traveling 'free of charge'. The case was decided on March 6 and the CJEU interpreted relevant provisions of the Regulation in a passenger-friendly manner. 

Facts and legal questions

In this case, a company CCC financed package tours for a group of passengers. CCC booked this package tour with a tour operator BBB. It included a flight between Spain and Poland, which was delayed by over 22 hours (operating carrier: AAA). Two questions raised in the dispute followed from passengers not being involved with making the reservation nor paying for it. Article 3 of the Regulation 261/2004 defines the scope of its application and requires that passengers 'have a confirmed reservation on the flight concerned'. This requires passengers to have a ticket or 'other proof' that the air carrier or tour operator accepted and registered the reservation, pursuant to Article 2(g). Further, Article 3(3) excludes from the scope of application such passengers who travel free of charge or at a reduced fare. As proof of their reservation passengers were presenting their boarding passes and the first question answered by the CJEU asked whether this was sufficient as 'other proof'. Second question addressed the issue of passengers traveling 'free of charge' if they did not pay for their flight, but the tour operator and the air carrier were remunerated nonetheless.

Boarding pass as proof of a reservation

The CJEU considers a boarding pass as proof of a reservation, as it includes ticket or reservation number and confers on passengers 'entitlement to transport', authorising them to take the flight (paras 23-24). It also relies on the fact that as the operating air carrier admitted these passengers on board via check-in and allowed them to take the flight, they had to have had a confirmed reservation for that flight (para 29). The boarding pass can then prove the existence of a reservation, even if it does not contain all information normally expected from it, e.g. arrival time (para 25). 

Free of charge air travel only if made free by the operating air carrier

The most common interpretation of the exclusion from Article 3(3) Regulation 261/2004 involved air carriers offering free (or at a reduced fare not available to the public) flights to passengers, outside the frequent flyer programme benefits (paras 40-41). The CJEU confirms in this judgment that it is only the operating air carrier's decision to facilitate free (or at a reduced fare) travel to passengers that would prevent passengers from claiming protection from Regulation 261/2004 (para 44). The fact that the tour operator in this case remunerated the operating air carrier according to market conditions further signifies that the flight was not 'free of charge' (para 48). It is also irrelevant whether passengers paid themselves to the tour operator, or whether, as in this case, the package tour was paid by a third party (para 49). The burden of proof that a passenger travelled free of charge rests on the air carrier, as they will need to prove their case is excluded from the applicability of Regulation 261/2004 (para 51).

The importance of this judgment is twofold. First, it clarifies the language of the previous case Azurair and Others (C-146/20, C-188/20, C-196/20 and C-270/20), which implied that a proof of a reservation is only perceived as such if it contains a lot of flight-related information. This specific interpretation would have made it relatively easy for the airlines to avoid providing passengers with a 'confirmed reservation' by not providing some of this information in written form to passengers, or providing it in various documents. It is also good to have a confirmation of the notion 'free of charge' and its narrow applicability. We may have expected that it was irrelevant whether passengers paid for their flight themselves, as they also did not require a contractual relationship with the operating air carrier. However, it is good to read that passengers will not lose their protection if they travel on a discounted rate basis due to arrangements e.g. between their employers and tour operators, provided it is not the operating air carrier that offers this (not publicly available) deal.

Passenger rights when flights are cancelled - CJEU in flightright (C-642/23) and Qatar Airways (C-516/23)

On January 16 the CJEU issued two judgments further interpreting Regulation 261/2004 on air passenger rights, in the cases flightright (C-642/23) and Qatar Airways (C-516/23). 

flightright (C-642/23)

A passenger booked via a tour operator a flight operated by Etihad Airways from Düsseldorf (Germany) to Brisbane (Australia), via Abu Dhabi (UAE) with an open return ticket. The flight from Düsseldorf to Abu Dhabi was cancelled and the tour operator declared insolvency before reimbursing the cost of the ticket. The passenger's father contacted the air carrier on their behalf and agreed to a change of the reservation, as well as a few steps of compensation, consisting of redeemable miles for EA flights to the value of the payment made, additional miles of ca 380 Euro, and further 5.000 Etihad Guest Miles. The passenger was required to set up a loyalty account with EA to obtain compensation, which they did. Unfortunately, the credit of the miles did not take place.

The legal question in this case was whether the passenger validly accepted the offer of the air carrier, to be compensated in redeemable miles/flight vouchers, considering that they have not provided their 'signed agreement' as is required by Art. 7(3) Regulation 261/2004. Could the action of setting up a loyalty account with the air carrier, to which the miles would have been transferred, be equivalent to a handwritten signature? (para 18) The question is highly relevant, considering that the Regulation 261/2004 priorities monetary compensation for passengers, while in practice air carriers often attempt to provide compensation via vouchers. The requirement of a signature can prevent passengers from unknowingly or erroneously agreeing to give up their right to monetary compensation, demanding their free and informed consent (para 22). Previously, the CJEU recognised that also other forms of providing express, definitive and unequivocal acceptance of reimbursement in vouchers are acceptable, e.g., a consumer filling in a form on air carrier's website and choosing in it compensation in vouchers (para 23). A handwritten signature is, therefore, not required (para 25). However, setting up a loyalty account with an air carrier does not need to amount to this form of acceptance, as a passenger may have had other intention when taking this action (para 27).

Qatar Airways (C-516/23)

Passengers in this case reserved return flights with Qatar Airways from Frankfurt am Main (Germany) to Denpasar (Indonesia), with a stopover in Doha (Qatar). They benefitted from a promotional campaign for health professionals, which allowed them to make a reservation by only paying for taxes and charges related to the booking. QA cancelled reserved flights. Further, no flights were operated to Denpasar by this carrier during the following period of 1.5 years. When the flight route was renewed the passenger demanded re-routing of their previously cancelled flights. As the carrier did not comply, passengers reserved the new flights themselves, paying partially with their frequent flyer programme's benefits for the new flights.

As per Article 3(3) Regulation 261/2004 its provisions do not apply to passengers travelling 'free of charge or at a reduced fare not available directly or indirectly to the public', the first question was as to the applicability of passenger protection rules to this situation. The CJEU decided that Regulation 261/2004 remains applicable here. The main arguments are based on the literal and contextual interpretation. First, the phrase 'free of charge' is normally interpreted in a way, which precludes passengers who pay taxes and other charges from being included in its scope (para 25). Second, other rules regulating air travel (Art. 23 of Regulation No 1008/2008) consider taxes and charges as elements of the total price of the plane ticket (para 26). Third, reduced fare is available to the public, even if it is not available to all members of the public, but e.g. only to health professionals (paras 34-36, 38). 

Finally, Article 8(1)(c) Regulation 261/2004 allows passengers to ask for re-routing of their flights at a later date, at the passenger's convenience. Could this occur years later though? The Court highlights that the decisive factors here are: passenger's convenience and wish to be re-routed at a specific date, limited only by seat availability (para 54). There does not seem to be a temporal link required then between the date of the cancellation and when re-routing is to occur (para 55). This interpretation cannot be invalidated by airlines stating that following it may demand from them payment of unreasonable operating costs. The CJEU recalls that passenger protection may justify even substantial negative economic consequences for certain economic operators (para 59).

Both these cases provide a useful clarification of provisions that were previously less challenged but contain terms ripe for various interpretation.

Hidden plane defects and cancelled flights - CJEU in C-385/23 (Finnair) and C-411/23 (D.)

This June the CJEU issued two judgments analysing the scope of the application of the 'extraordinary circumstances' exception to airlines' scope of liability for cancelled flights, where cancellation was a consequence of a hidden plane defect.  

In Finnair (C-385/23) a relatively new plane (5 months old) had a failure of a fuel gauge, which became evident during refuelling shortly before take-off. Due to flight safety concerns the flight was cancelled and passengers only flew the next day, arriving at their destination ca 20 hours late. Investigation of the defect showed that even though this plane was the first one to experience this defect, all other aircrafts of the same type suffered from this defect.

In D. (C-411/23) the carrier has received a notification of a hidden design defect in the engine from its manufacturer together with a list of restrictions on the future use of an aircraft. A few months later, the defect manifested and the engine had to be sent out for a repair. Due to a global engine shortage, engine replacement was not possible for almost a week in that plane. This meant that the passenger's flight was delayed by more than 3 hours, as an alternative aircraft had to be used to operate the flight.

Manufacturer reveals design defect after the technical failure occurred

Finnair's case is a relatively straightforward one. The CJEU confirms that the 'extraordinary circumstances' defence from Article 5(3) Regulation 261/2004 on air passenger rights applies also when the manufacturer of a plane discovers the existence of a hidden defect after that defect manifested and caused harm. The time of recognising a defect as a hidden one is irrelevant, thus this recognition does not have to precede the occurrence of a technical failure. While dealing with consequences of technical failures could normally be seen as falling within the normal exercise of airlines activity and within their control, the CJEU has previously recognised an exception for hidden manufacturing defects of planes (paras 30, 33-35).

Carrier's knowledge of the design defect before the technical failure occurred

Similarly, in D. the CJEU recalls previous case law on when technical failures may amount to 'extraordinary circumstances', i.e., when hidden design defects manifest themselves, as these are not inherent in airlines' normal activity and remain beyond their actual control (paras 34, 36-38). It then also stresses the irrelevance of the timeframe in which the manufacturer reveals the existence of a hidden defect to air carriers "since that defect existed at the time of the cancellation or long delay of the flight and the carrier had no means of control to correct it" (para 40).

This is an interesting conclusion, as we could have anticipated that if air carriers are informed about one of their aircrafts belonging to a class of planes with a hidden design defect, they would then have (some) control on the follow-up steps: repair or replacement. Taking remedial measures would also remain consistent with the objective of assuring a high level of flight safety (para 41). 

This brings us to the second part of Article 5(3) Regulation 261/2004 which only releases air carriers from their liability if they took 'reasonable measures' when extraordinary circumstances occurred, i.e. "conditions which are technically and economically viable for that carrier" (para 44). The CJEU leaves it to the national court to determine whether all reasonable measures have been taken by the carrier, both after the notification of a hidden defect and after this defect manifested itself (para 48). This could have included the airlines' capability (financial and technical) to have this engine repaired while replacing the grounded aircraft with a chartered one or by fitting a replacement engine in it (para 50). Alternatively, if this was viable, the airline could have arranged for a back-up fleet or aircraft and crew on standby (para 51). What the CJEU does not consider a reasonable measure is the airline resizing its operations just in case of a hypothetical occurrence of a defect (para 52).

Delays in luggage loading a possible extraordinary circumstance - CJEU in Touristic Aviation Services (C-405/23)

On May 16, the CJEU issued a new judgment on air passenger rights when there is a long flight delay and an airline claims extraordinary circumstances, in the case Touristic Aviation Services (C-405/23).

In a given case, the flight was delayed by 3hrs and 49 min between Germany and Greece. The delay was a result of a perfect storm of various contributing circumstances: shortages of staff in both boarding the previous flight on this route as well as in loading the baggage on the plane, but also weather conditions worsening after the plane was ready for departure. At a glance, we could then say that at least some of these circumstances (weather) could qualify as extraordinary circumstances. The main issue in this case was whether the shortage of staff provided by the operator of the airport, rather than the airline, to load the luggage on the plane, could amount to an extraordinary circumstance. If yes, this would likely lead to a delay for which the airline was  not responsible, i.e.,  not exceeding 3 hours (not long enough for compensation under Regulation 261/2004). 

The CJEU's answer is not straightforward, unfortunately. There are two conditions that need to be met: the event not falling within the normal exercise of the airlines' activity and it remaining outside the airlines actual control (para 21). It refers to its previous case law on defects in refuelling systems at the airport as amounting to an extraordinary circumstance if the defect "is the result of a general failure", in that case in the refuelling system managed by the airport (para 23 - reference to case C-308/21, SATA International - Azores Airlines). The CJEU then advises the national court to check whether the shortage of staff for the baggage loading could amount to a general failure of baggage loading operations (para 24). What is missing here is an advice as to more precise parameters that would allow to lead to the demarcation of a general failure. Regarding the second requirement, whether the airline had control over the baggage loading operations could depend, per CJEU, on whether the airline could "exercise effective control over the operator of that airport" (para 27). Could this requirement potentially create a distinction between bigger and smaller airlines, as well as airlines who have their hubs at a given airport? Finally, the national court needs to examine whether the airline could have avoided this delay by taking all reasonable measures, which can e.g. mean using services of another baggage loading service provider (para 29). This again may depend on airlines' resources, leading to a further distinction between various airlines in avoiding having to pay compensation under Regulation 261/2004.

Overall, this judgment does not introduce more legal clarity by stating that a shortage of staff in luggage loading operations could constitute an extraordinary circumstance, but not being very directive on when this could occur.

May airlines use T&Cs to prohibit passengers from assigning their rights to claim damages? - CJEU in Air Europa Lineas Aéreas (C-173/23)

In today's Air Europa Lineas Aéreas judgment (C-173/23) the CJEU looked into the application of the Unfair Contract Terms Directive (UCTD) to contracts concluded between air passengers and air carriers. Specifically, the passenger in case suffered damages as a result of a delay in receiving his checked-in baggage. He assigned his claim for damages against the air carrier (Air Europa) to a third party (Eventmedia). The air carrier disputes the transfer of rights to Eventmedia, claiming that assignment of passenger rights is prohibited by a clause in its general conditions of carriage (para 12). The referring court had sufficient evidence to declare this clause unfair ex officio but had doubts whether it could do so procedurally. First, the consumer was not part of the judicial proceedings, as he was represented by the assignee of his rights (whose standing was contested). Second, if the court declared the clause unfair the consumer, still remaining outside the judicial procedure, would not have received a chance to object to the application of this finding. 

Ex officio unfairness testing after consumers assigned their claims

First, the CJEU reminds that it has already previously declared (in the DelayFix case - C-519/19) that the UCTD's application is based on the capacity of the parties when they were concluding a contract (B2C) rather than the identity of parties entering into a dispute (paras 17-18). Therefore, the UCTD applies to more cases than just the ones, in which a dispute is between B2C contractual parties (para 25).

The CJEU reminds further that the ex officio judicial mechanism aims to compensate for the imbalance between consumers and professional parties (para 29). Other procedural issues remain in the discretion of the Member States, provided that they comply with the principles of equivalence and effectiveness (para 31).

To comply with the principle of equivalence here, the national court needs to determine whether national law allows it to ex officio assess whether a contractual term is contrary to national rules of public policy. If the answer is affirmative, the unfairness assessment also needs to take place ex officio (paras 34-35). This conclusion is not impacted by the consumer's presence in the judicial procedure, as if conditions for the applicability of the UCTD have been fulfilled (e.g., contract concluded B2C) its provisions benefit from having been assigned an equivalent status to domestic rules of public policy.

The assessment differs regarding the observance of the principle of effectiveness, as this considers the specifics of each procedure and the role that the contested legal provision plays in it. Specifically, " (...) whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, and, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of proceedings (...)." (para 37). Here then the fact that the procedure occurs between two professional parties weakens the need to provide as much protection against unfair terms, as if a consumer was one of the parties in the dispute, as there should be more balance between parties in the dispute (para 38). The principle of effectiveness does not require then the national court to test unfairness ex officio (para 39), unless the professional assignee of the consumer's claim had no real chance to rely on the unfairness in the procedure (para 40).

Consequences of unfairness in light of audi alterem partem when consumers are not part of the judicial process

When national courts find a term unfair ex officio, they follow the rules of audi alterem partem, of a fair hearing, by apprising parties in the dispute of court's findings and giving them an opportunity to debate these and to be heard (para 44). This applies also in case the dispute is between the assignee of the consumer rights and it is this assignee that needs to be informed of the unfairness finding, alongside the trader (para 46). As the consumer is not a party to the dispute, they do not need to be informed of the court's finding of unfairness and do not need to address it (para 49). It is the assignee of their rights that may object to it instead (para 47), although, obviously, they are unlikely to do so as they would then lose standing in the procedure (para 48).

***

The first part of the judgment has enormous practical relevance, as air passengers commonly assign their rights for compensation to third parties. It is, therefore, important for the effectiveness of passenger protection framework that air carriers could not block this process by prohibiting the transfer of rights in their general terms and conditions. This judgment will help assure this further, following the previous judgment in the DelayFix case (see our comment here), as professional assignees of consumers' claims will be able to raise unfairness of the prohibition of transfer of rights themselves. If this is prohibited or hindered, they could then rely on the breach of the principle of effectiveness and expect national courts to test unfairness ex officio (pursuant to para 40). This way assures more legal certainty than relying on the ex officio unfairness testing due to the principle of equivalence, as it could differ between the Member States whether ex officio testing of measures of public policy was allowed.

Vouchers, an acceptable reimbursement? - CJEU in C-76/23 (Cobult)

On March 21, the CJEU published the most recent judgment interpreting provisions of Regulation 261/2004 on air passenger rights in the case Cobult (C-76/23) concerning the possibility of reimbursing passenger's ticket cost through a voucher.

By Lu Lettering from Pixabay  

Many of our readers may have experienced a flight cancellation over the past couple of years, not limited to Covid-19-related causes. In case of a cancellation passengers may choose to have their cancelled flight rescheduled (re-routing) or have their ticket costs reimbursed, pursuant to Article 8 of the Regulation 261/2004. Reimbursement could happen via various means, including via a voucher but the latter only upon passenger's "signed agreement", pursuant to Article 7(3). Thus the reimbursement by a travel voucher "is presented as a subsidiary means of reimbursement" (para 20). 

In this case, TAP Air Portugal invited passengers to fill an online form to claim reimbursement of ticket costs, which would lead to them being immediately compensated in travel vouchers. The online form included conditions of acceptance, with text clarifying that acceptance of a travel voucher precluded further reimbursement claims in other forms. An alternative way of reimbursement was available, if passengers contacted their customer service department and allowed them to examine case facts (paras 8-9). 

The CJEU does not exclude a possibility that passengers could have provided a 'signed agreement' in an online reimbursement form. A 'signed' agreement does not need to include the consumer's signature on an online form they are submitting to the air carrier for reimbursement (para 34). However, certain conditions would need to be met. First, passengers need to be able to give their free and informed consent to reimbursement via a travel voucher (para 22). This will require air carriers to provide passengers with "clear and full information on the various means of reimbursement" of ticket costs (para 30). This condition will not be fulfilled if e.g., air carrier (para 32):

• leaves any ambiguity on its website, 
• presents partial information, 
• writes information in a language that passengers may not be proficient in (e.g. information in this case was given only in English - would this be seen as compliant if many passengers were Portuguese-speaking?), or 
• if the procedure for claiming monetary payment is unfair if compared to the procedure of claiming travel vouchers e.g. because it contains additional steps.

"(...) the addition of such supplementary steps is liable to render reimbursement by a sum of money more difficult to obtain, and thus to upset the relationship between the two means of reimbursement" (para 33) - this is an interesting conclusion by the CJEU, which follows recent developments in other areas of EU consumer law. For example, when assessing fairness of cancellation process of online subscriptions, we would also check whether there were additional steps included, which made the process more complex than when subscription was concluded.

Passengers acting to avoid flight delay = no compensation

In two judgments issued on 25 January, the CJEU addressed questions related to the passengers’ right to claim compensation for a long flight delay. The unusual aspect of both cases is that in neither of them passengers actually experienced the delay, having decided to forego the delayed flight. Unsurprisingly, the CJEU decided in both cases that they could not then claim compensation from Regulation 261/2004.

C-474/22 - Laudamotion 

In this case, a passenger in expectation of the delay, which would have led him to not make the business meeting he was to travel for, decided to stay home rather than go to the airport. His flight arrived at the final destination with a delay of 3 hours 22 minutes.

The CJEU emphasised that the loss of time that the compensation aims to alleviate is „not damage arising out of delay” but an inconvenience (para 27). All passengers experience it the same way, which allowed to standardise the compensatory measure. Contrary, however, to cancelled flights in case of a flight delay to be eligible for claiming compensation passengers need to present to check-in at the airport (para 30). In this case, the passenger was then not eligible for compensation as he did not present himself for check-in. However, the Court reminded that the passenger could claim further compensation pursuant to Art. 12 Regulation 261/2004 for individual damage, e.g., arising due to having missed the business meeting (paras 32-33).

C-54/23 - Laudamotion and Ryanair 

Here, the passenger avoided the flight delay of 6 hours by booking themselves on an alternative flight, which arrived at the final destination with a delay of fewer than 3 hours.

The CJEU focuses on the fact that the passenger did not experience the inconvenience of a long delay, the loss of time, and therefore is also not eligible for the compensation (para 22). The Court notes that the passenger could have experienced an inconvenience as they had to find an alternative means of transport themselves, but that is not a serious inconvenience pursuant to the Court (para 23). It should be mentioned that also in this case the passenger received some form of redress as they could claim reimbursement for the flight ticket pursuant to national law. 

Both cases then limit the application of the Regulation 261/2004 but in a way consistent with the objective of high level of passenger protection. Passengers are not left without a recourse for claiming compensation for individual damages.

Revision of EU travel rules

By Alex Azabache on Unsplash

Last week, on November 29th, the European Commission announced the forthcoming (long-awaited) revision of EU travel rules (Improved rights and better information for travellers). This concerns a few legislative measures: 

1. Revision of Regulation 261/2004 on Passenger Rights through a newly proposed Regulation as regards enforcement of passenger rights in the Union

• new rules for passengers who booked flights via an intermediary
• an intermediary being defined as any ticket vendor, organiser or retailer other than a carrier
• new Article 8a adds a reimbursement right 
• passengers will need to be clearly informed by the intermediary and air carrier about the reimbursement process
• free of charge
• if reimbursement occurs through intermediaries: Air carriers shall reimburse intermediaries within 7 days, with intermediaries reimbursing passengers within further 7 days
• if passengers do not receive reimbursement within 14 days of choosing for this remedy, the air carrier contacts passengers to receive payment details and reimburses them within further 7 days
• new Article 14a adds rules on the transfer of passenger information, its safeguarding and when to delete it
• this will facilitate intermediaries sharing passenger information with air carriers, so that air carriers can be in contact with passengers about their flights
• strengthening enforcement mechanisms (similar mechanisms have been proposed to be added also to Regulation 1107/2006, Regulation 1177/2010, Regulation 181/2011, and Regulation 2021/782)
• new Article 15a requires air carriers to establish 'service quality standards' (Annex II contains a minimum list thereof) and implement 'a quality management system'
• new Article 16a specifies that the Commission will adopt a common form for reimbursement and compensation requests under Articles 7 and 8 Regulation 261/2004
• passengers will retain the right to submit their refund requests by other means
• passengers shall be free to provide information in any of the EU languages
• new Article 16b specifies that national enforcement bodies should adopt a risk-based approach to monitoring compliance with passenger rights
• this should allow detection and correction of 'recurrent non-compliance'
• new Article 16bb determines that carriers shall share information with national enforcement bodies within 1 month from the request (max 3 months in complex cases)
• new Article 16bc requires informing consumers about ADR

2. Revision of Regulation 1107/2006 on Rights of Disabled Persons and Persons with Reduced Mobility when Travelling by Air through a newly proposed Regulation as regards enforcement of passenger rights in the Union

• special right to assistance for persons with reduced mobility 
• including right for free of charge travel for a companion (if necessary to comply with safety procedures) - in Article 4(2)

3. New proposal for a Regulation on passenger rights in the context of multimodal journey

• multimodal journey is defined as a 'journey of a passenger between a point of departure and a final destination covering at least two transport services and at least two modes of transport' (Art 3(1))
• whilst the new provisions will apply to various types of multimodal journeys (single contract, combined contract, separate tickets) the unifying link between them (and limitation to scope) is that all transport contracts need to be offered by a carrier or intermediary
• whether payment takes place together for all services or separate is irrelevant though
• still, this means that the Regulation will not apply when it is the traveller who seeks out various connection between travel modes on their own
• Art. 4 - establishes the right to non-discriminatory contract conditions and tariffs
• discrimination is not allowed on the basis of passenger's nationality or the place of establishment of the carrier or intermediary
• Art. 5 - better information for passengers combining different travel modes (air, rail, road) in one trip
• e.g. on minimum connecting times between different transport modes, time schedules and conditions for the fastest trip, highlighting the lowest fares, disruptions and delays, complaint procedures
• intermediary transfers passenger data to all carriers involved to facilitate direct communication between them
• caveat: SMEs are exempted from having to provide real-time information
• right to assistance in case of missed connections
• Art. 7 - right to reimbursement and re-routing
• re-routing with the same (or another commissioned) carrier should not bring with it additional costs to passengers
• reasonable efforts should be made to ensure short delays in total travel time and to avoid additional connections
• reimbursement should be paid within 14 days (and may include vouchers, provided passengers agree to this)
• Art. 8 - reimbursement through intermediaries
• provided carriers agree, travellers could request reimbursement from intermediaries
• carriers then reimburse intermediaries within 7 days, and intermediaries have further 7 days to reimburse passengers
• if passengers do not receive reimbursement within 14 days of choosing for this remedy, the carrier contacts passengers to receive payment details and reimburses them within 14 days
• Art. 9 - right to assistance
• free of charge
• means and refreshments - reasonable to waiting time
• accommodation (and transport to it) - up to 3 nights
• Art. 10 - liability for combined multimodal tickets (with a single point of payment for all services) in case of missed connections
• carrier/intermediary liable to reimburse total amount paid for combined multimodal ticket + compensation (75% of the total ticket price) 
• unless clear information that the combined multimodal ticket consists of separate transport contracts
• Art. 11 - common form for reimbursement and compensation requests
• Chapter IV - contains rights for passengers with reduced mobility
• Chapter V - contains provisions on assuring quality of services
• Chapter VI - information and enforcement provisions

3. Revision of Package Travel Directive (2015/2302)

• Package organisers granted a right to a refund from service providers in case of cancellation or non-provision of a service within 7 days (Art. 22)
• to facilitate reimbursement of travellers within 14 days
• Downpayments for packages limited (new Article 5a)
• to max 25% of the package price, unless higher downpayment is justified by package organisers having to pay upfront for service provision
• total payment should not be requested until 28 days before the start of the package
• this is to protect consumers against risk of bankruptcy of organisers
• Revised Art. 12 clarifies termination rights in case of extraordinary circumstances (such as Covid-19)
• e.g. the need to consider official warnings against travel, but also serious restrictions that would have applied to travellers' travel at destination or upon return from travel at home country - when looking for justified termination
• New Art. 12a clarified vouchers policies 
• travellers transparently informed on the right to insist on a refund and voucher characteristics (validity period)
• voucher's amount should at least equal the amount of the refund right
• vouchers shall be valid min 12 months from the day travellers' accept them (with an option to extend by 12 months - once)
• refunded automatically (within 14 days) if not used before the end of the validity period
• vouchers shall be transferable to another traveller without any additional cost
• vouchers and refund rights covered by insolvency protection

Additional proposals have been adopted that aim to facilitate better provision of information to travellers on available travel modes, incl. combining different types of travel (revision of Delegated Regulation 2017/1926 on the provision of EU-wide multimodial travel information services). This new service intends to provide real-time information and updates, also on delays and cancellations, as well as specific information, e.g. on possibilities of taking bikes on a train (see more here).

Impact of pre-emptive denied boarding on passenger rights - CJEU in LATAM (C-238/22)

Last Thursday, on October 26, the CJEU issued a new judgment on rights of passengers who have been denied boarding, interpreting Regulation No 261/2004. In the LATAM Airlines Group case (C-238/22), the passenger booked return flights with Latam between Frankfurt am Main and Madrid for 22-12-2017 and 7-1-2018. When the passenger could not check in online on Dec 21, they contacted Latam and heard that the airline changed their flight date unilaterally to Dec 20. They just did not inform the passenger about this (which is a bit of a problem, you must agree). Oh, and since the passenger did not take the re-booked flight (they did not know about they were missing), they also lost the right to take the return flight on Jan 7. The airline's policy was that the outward flight had to be taken for the return flight reservation to remain valid. Latam still refunded the ticket the passenger did not use. They refused, however, to either pay compensation pursuant to Regulation 261/2004 or to compensate the passenger for the new reservation they made with a new carrier. 

Pre-emptive denied boarding

The CJEU clarifies that when the airline denies boarding to passengers in advance, against their will - here by informing the passenger that they lost the right to the return flight - the passenger is not expected to still present themselves for boarding to maintain their passenger rights (para 38). This is an important clarification as the literal wording of Article 2(j) of the Regulation 261/2004 qualifies 'denied boarding' as a refusal to carry passengers on a flight, although they have presented themselves for boarding (para 23). This in turns means, pursuant to Article 3(2), passengers being present for check-in (para 24). The CJEU confirms that the concept of 'denied boarding' should be interpreted broadly to offer a wide scope of passenger protection and covers also situations of pre-emptively denied boarding, that is boarding denied in advance (paras 28-29). Still, passengers may claim their compensation despite not presenting themselves for boarding as CJEU perceives their situation as not distinguishable from that of passengers whose reservation was transferred to another flight by the airline, who fall within the scope of Regulation 261/2004 pursuant to its Article 3(2)(b) (para 32). Further argument stems from the historical objective of the Regulation 261/2004 - to prevent passengers' hardship caused by overbooking of flights. As such, drafters did not anticipate pre-emptive denied boarding explicitly in the text of the provisions (para 34).

Right to compensation

Further question pertained to the application of Article 5(1)(c)(i) of Regulation 261/2004, which excludes passengers' right to claim compensation for a cancelled flight, if they were informed about the cancellation at least 2 weeks before the scheduled departure time (para 42). As this provision introduces an exception to passenger rights, it need to be interpreted strictly (para 44), and as such, it does not apply to denied boarding but only to cancelled flights (para 45).

Costs of repatriation flights during Covid-19 not covered by Regulation 261/2004 - CJEU in Austrian Airlines (C-49/22)

On Thursday, June 8th, the CJEU issued a judgment in the Austrian Airlines case (C-49/22). The national court asked for help with interpreting Articles 5 and 8 of Regulation 261/2004 on air passenger rights regarding assistance that operating airlines need to offer passengers of cancelled flights, as well as passengers' rights to reimbursement and re-routing. 

Facts

Image by Stephen Cruickshank from Pixabay     

Passengers in this case were stuck on a beautiful island of Mauritius, when Covid-19 led to cancellation of their return flight. The airline did not inform them directly thereof, despite having their contact details. When they heard about the cancellation from their travel agent (a day later), they managed to arrange for a return flight home via the Austrian consulate. Ironically, the repatriated flight was with Austrian Airlines as well, and took place at the time their original return flight was scheduled. As the passengers were asked to contribute to the cost of the repatriation flight, they are trying to claim this amount back from Austrian Airlines. The claim is that the airline failed to organise re-routing of passengers, which they had to arrange and pay for themselves. 

Repatriation flight not a re-routed flight

The CJEU first considered whether the repatriation flight could be considered a re-routed flight, for which organisation and cost Austrian Airlines would need to take responsibility. The short answer is: Repatriation flight does not qualify as a re-routed flight. Despite Regulation 261/2004 not defining a re-routed flight (para 25), and everyday language suggesting that this notion would be broadly interpreted (para 26), the CJEU highlights the need for the 'commercial nature' of a re-routed flight (para 29). This need stems both from the legal basis for the adoption of Regulation 261/2004 and some of its provisions referring to concluded contracts and fee-paying passengers (Art. 2(b) and 3(3)). Sensibly, the CJEU stresses that as the repatriation flight is not commercial in nature, it may differ from commercial flights in terms of available services and conditions on board, and would not be in the discretion of the operating air carriers to offer to passengers (paras 31-32).

No EU entitlement to reimburse costs of a repatriated flight

May a passenger claim repatriation costs back from the operating airline of a cancelled flight? Unsurprisingly, this would not fall within the scope of the reimbursement provided for in Article 8 Regulation 261/2004, which specifies the passengers' right to claim back costs of the ticket for the parts of the journey not made (paras 40-41). Although, Art. 12 Regulation 261/2004 allows passengers to claim 'further compensation', assessed on an individual basis, from the airlines but only provided that national or international law gives them such a claim (para 36). The CJEU stresses, however, that Article 8 by listing various rights of passengers (reimbursement or re-routing) implies that the air carrier has an information duty about these rights, which only when fulfilled would lead to passengers being able to effectively exercise their rights (paras 43-44). If the air carrier fails in this information duty, which forms part of its obligation to offer assistance to passengers, the passenger is entitled to 'reparation in kind' (para 48). This will be limited to what 'proves necessary, appropriate and reasonable to remedy the shortcomings of the operating air carrier' (para 49).

It is then unlikely that passengers could use Regulation 261/2004 for claiming costs of their repatriation back from the airlines whose flights were cancelled due to Covid-19. Even if the airlines breached their obligations under EU law (to inform about flight cancellation, about passenger rights in the even of cancellation, offer assistance, reimburse part of the travel costs), the compensation claimed would aim to compensate for damages arising from this breach rather than be related to costs of the repatriated flight.

Workload problems in the air, nothing out of ordinary - CJEU in TAP Portugal (C-156/22 to C-158/22)

In a judgment issued today the CJEU had another chance to restrictively interpret the concept of 'extraordinary circumstances' from Regulation 261/2004. If extraordinary circumstances occur, this limits the airlines' obligation to compensate passengers of cancelled or delayed flights. 

By Andrés Dallimonti on Unsplash

In TAP Portugal judgment (joined cases C-156/22 to C-158/22) an early morning flight from Stuttgart (Germany) to Lisbon (Portugal) was cancelled due to the death of a co-pilot, which occurred earlier on the same day. Unsurprisingly, the whole crew was unfit to fly and since TAP does not have a base in Stuttgart, the replacement flight with a new crew was only managed to be arranged for late afternoon that day. The referring court found disparities between the application of the concept of 'extraordinary circumstances' to situations of unexpected illness of crew members by national courts and asked CJEU for guidance. 

Previous case law interpreted the notion of 'extraordinary circumstances' restrictively as: 1) not inherent in the normal exercise of air carrier's activity AND, 2) beyond that carrier's actual control (paras 18-19, see e.g. our comment on Airhelp case). Unsurprisingly, the CJEU declares workload planning for crew members as falling within the normal exercise of the air carriers' activity (para 21). And anyone who has ever managed staff knows that this includes anticipating and resolving unexpected absences, although luckily usually resulting from less extreme circumstances (para 22). Legally speaking, as CJEU emphasises, the reason for the unexpected absence makes no difference to the fact that the air carrier should anticipate dealing with unexpected absences (para 23). It is also irrelevant whether the absent crew member recently had been cleared medically, as unexpected illness or death may happen at any time (as morbid of a remark as it is true, para 24; this reasoning is also analogous to the one on technical defects of airplanes not constituting extraordinary circumstances even if the defect occurred in plane parts that were regularly maintained and recently checked, see e.g. van der Lans case). This means that the first condition to perceive this situation as qualifying as an extraordinary circumstances is not fulfilled. 

The CJEU consistently limits then the scope of application of the 'extraordinary circumstances', ensuring wide scope of protection offered to passengers of cancelled or delayed flights. It seems unlikely that airlines could afford to keep spare crew members at different airports to anticipate unexpected illness/death. They could though, of course, consider working with a pool of freelancing crew members, rotating between different airlines, when and as needed. The alternative is to accept the need to pay compensation to passengers, which means adding this to the flight tickets prices and/or re-negotiating insurance policies.

Administrative payment orders for airlines - CJEU in LOT (C-597/20)

On 29 September the CJEU issued another judgment on the interpretation of Regulation 261/2004 in the case LOT (C-597/20). This judgment refers to a less commonly referred to provision of this Regulation, its Article 16, obliging the Member States to assure the effective enforcement of its other provisions. Whilst it is clear from this provision that the Member States need to designate a body responsible for the enforcement, the measures that are at the disposal of this body are referred to only in general terms: measures necessary to ensure that the rights of passengers are respected. 

In the case at hand, the question was whether the designated body in Hungary was authorised to order an airline to pay out compensation for a delayed flight to passengers affected by this delay who have made individual complaints to that body. Previously, in the judgment Ruijssenaars and Others (see our comment No administrative fines for misbehaving airlines... and Air passengers denied compensation should go to court) the CJEU interpreted paragraphs 2 and 3 of Article 16 Regulation 261/2004 as not requiring designated bodies to act on any individual passenger complaints and not being required to issue administrative fines for each individual infringement of the Regulation (paras 24 and 25). This aimed at protecting the bodies from becoming overwhelmed by individual complaints and ensuring they have space to conduct their general market monitoring obligations. 

In the LOT judgment the CJEU had an opportunity to clarify that pursuant to Article 16 Regulation 261/2004 the Member States have discretion what powers to award to the designated bodies. This could mean that they choose to confer enforcement powers in individual passenger complaint cases on the designated body (paras 26-27). The national solutions must, however, provide for an option for passengers to seek further compensation for their losses before a court, pursuant to Article 12 Regulation (para 29). This means that the administrative procedure may not obstruct the passenger's or the air carrier's access to an effective, judicial remedy, giving effect to Article 47 of the Charter (paras 36-37).

This judgment is a welcomed clarification, as it may embolden the Member States to confer more powers on the bodies designated to enforce air passengers protection. The tricky part - how to avoid a flood of complaints - applies to both administrative bodies and courts, and could be helped by airlines complying more with the Regulation 261/2004 in the knowledge that passengers may claim sums owned them in various ways.

Different airlines, but connecting flights - CJEU in flightright (C-436/21)

A week ago, on October 6, the CJEU issued a judgment in the case flightright (C-436/21) on the concept of 'connecting flights' in Regulation 261/2004 on air passenger rights. This concept has been used e.g. in Article 2(h) of the Regulation, where the 'final destination' has been defined as 'the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight (...)'. 

The passenger in this case travelled from Germany to the US via Switzerland. Their journey required 3 flights, which were purchased together from a travel agency. American Airlines was mentioned on the single electronic ticket that the passenger received as the operating air carrier, even though the first flight was performed by Swiss International Air Lines. The whole journey had a single reservation number and the passenger received an invoice showing a single price for the return flights. In this case the last of the connecting flights, taking place within the US, was delayed by more than 4 hours. The passenger assigned their claim for compensation of 600 Euro from American Airlines to flightright.

The passenger would fall within the scope of Regulation 261/2004 only if their journey was deemed to have started in the territory of the EU (Germany). The issue was that the first flight was carried out by Swiss International Air Lines between Germany and Switzerland. American Airlines operated the second and third flight, but the second flight departed from outside the EU - from Switzerland. Swiss International Air Lines and American Airlines have no specific legal relationship and their flights have been combined for the purposes of this passenger by the travel agency. Should American Airlines then have to pay compensation under Regulation 261/2004 if their records might not have reflected that the passenger would have started their journey within the EU and therefore could be covered by Regulation 261/2004?

The CJEU says yes, referring to the previous judgment on defining 'connecting flights' as flights booked as a single unit (Wegener - see our comment Bad news for airlines...) (para 20). As the passenger's ticket seems to have confirmed that their reservation was for the entire journey, it would qualify as a single unit (para 26). The CJEU highlights further that Regulation 261/2004 does not require connecting flights to be performed by operating air carriers who are in a particular legal relationship (para 28). American Airlines seems, therefore, liable in this case for paying out the compensation to passengers. They could, however, try to seek recourse on the tour operator who has booked the journey, if they failed to fulfil their obligations (para 30).

Consequences of code-sharing agreements - CJEU in United Airlines (C-561/20)

On April 7th the CJEU issued a judgment in United Airlines (C-561/20), addressing rights of air passengers in a situation of a delayed connecting flight. We commented on the opinion in this case last December ((Not)Dashing through the snow...). AG Athanasios Rantos argued for the applicability of Regulation 261/2004 to a delay of a second connecting flight, which was operated by a non-EU air carrier (United Airlines) between two US airports, considering that passengers made their reservation with an EU air carrier (Lufthansa) and the reservation encompassed connecting flights leading passengers from Brussels (Belgium) to the US. Previous case law of the CJEU already emphasised the need to treat flights that were included in one reservation as one unit (para 29). The CJEU agrees with this interpretation, as well as with the fact that since Regulation 261/2004 places liability for delayed flights on operating air carriers, passengers have a claim in this case against a non-EU air carrier - United Airlines (paras 33 and 41-42). They operated all of the flights, under a code-sharing agreement with Lufthansa, which means they acted on behalf of a party who had a contractual obligation towards passengers (paras 39-40). 

Connection in EU insufficient for compensation of delayed flights - CJEU in Airhelp (C-451/20)

Today the CJEU issued a judgment in Airhelp case (C-451/20 - not yet in English) regarding interpretation of air passengers rights and Regulation 261/2004. You may check our previous post on the AG's opinion in this case here. The CJEU evaluated the applicability of the Regulation 261/2004 to the factual scenario presented by this case differently than the AG, which means that it found the operating air carrier not liable. 

A brief reminder: the case concerned connecting flights, with the original point of departure and the final destination in a third country. Consequently, the connecting factors to the EU and the applicability of Regulation 261/2004 were limited to: 1) Community-based operating air carrier (Austrian Airlines), and 2) connection taking place in Vienna.

AG Saugmandsgaard Øe considered the above two factors sufficient to apply Regulation 261/2004, preferring a pro-passenger, broad interpretation of the provisions of the Regulation, and warning against a possibility of different treatment for passengers on the same (delayed or cancelled) flight, depending on how their whole journey was planned. 

The CJEU interpreted provisions of Article 3 Regulation strictly finding that the place of the connection is neither the place of departure nor arrival mentioned in this provision (para 23) and that the connected flights covered by one reservation should be evaluated jointly (para 26). The CJEU highlights the need for consistent interpretation here, thus if connecting flights are treated jointly for the purposes of estimating passengers' rights to compensation, they should not be 'artificially' separated for the purposes of assessing when Regulation 261/2004 is applicable (para 28). 

Further, the CJEU considers the systematic incoherence of Article 3 Regulation 261/2004 that could follow if the interpretation preferred by AG Saugmandsgaard Øe was supported. It does not address, however, concerns as to potential unequal treatment of various passengers of the same flight, focusing instead on assuring legal certainty of these provisions.

Place of performance for multi-leg journeys - CJEU in LOT Polish Airlines (C-20/21)

Last week, on 3 February 2022, CJEU issued another judgment interpreting Article 7 Regulation 261/2004 on air passenger rights this time in combination with the interpretation of Article 7 Regulation 1215/2012 (Recast Brussels Regulation) in the case LOT Polish Airlines (C-20/21). The dispute concerned the jurisdiction of a national court over a claim for compensation of a delayed flight. 

The flight in case consisted of two legs of a journey with Lufthansa AG - Warsaw (Poland)-Frankfurt am Main (Germany)-Malé (Maldives). The first flight was operated by LOT Polish Airlines and its delay led the passengers to miss the second flight and arrive in Malé with more than 4 hours of a delay. The passengers claimed compensation for a delayed flight with a local court in Frankfurt am Main (Amtsgericht Frankfurt), which then disputed its jurisdiction as neither a place of departure or arrival listed in the contract of carriage (para 10). The referred question asked whether Frankfurt could be perceived as a place of performance pursuant to Article 7(1)(b) Regulation 1215/2012, which allows to determine domicile in contractual disputes regarding provision of services with reference to the place in which services were provided or should have been provided.

Previously, the CJEU has already confirmed the applicability of the jurisdiction rules governing contractual disputes to air passengers, regardless of the fact that their claims may be directed at operating air carriers with whom they did not conclude a contract (flightright and Others). The CJEU now reiterates the rules on determining jurisdiction for disputes where there are several places in which services were provided to looking for a place with the closest connecting factor between the contract and the court having jurisdiction (para 22). This tends to be the place where the 'main provision of services is to be carried out' (see Rehder). This should not be limited to the place of first departure and last arrival for a journey that consists of various legs (para 23). However, in the current case as the dispute arises from the delay of the first flight and the claim is raised against the air carrier operating that first flight, it seems that the place of first departure remains closely linked to the dispute and hence courts of that place should have jurisdiction (para 25). Consequently, the CJEU considers the courts of the place of arrival of the first leg of the journey not to have jurisdiction (para 27). The claim should be brought to courts of Warsaw rather than Frankfurt then, which is also considered to guarantee predictability and legal certainty for both parties (para 26).

(Not)Dashing through the snow - AG Athanasios Rantos on delayed flights in United Airlines (C-561/20)

On December 9, AG Athanasios Rantos issued an opinion in the case United Airlines (C-561/20), which concerned interpretation of Articles 5 and 7 of Regulation 261/2004 on air passenger rights. This is another case concerning a delayed connecting flight, through which airlines try to limit their obligation to pay out compensation, pursuant to the rules of the Regulation, to passengers affected by such a delay.

In this particular case, passengers were travelling from Brussels (Belgium) to San José International airport (the US) via Newark International (the US). One reservation was made for these flights with the Community air carrier, German Lufthansa. However, both flights were operated by United Airlines, a non-Community carrier. Due to a technical defect of a plane, the second connecting flight was delayed.

United Airlines refused to pay compensation, invoking the fact that the delay occurred during the second leg of the air travel, during a flight from an airport in the US to another airport in the US, and that they were not a Community carrier.  

Unsurprisingly, following the previous case law of the CJEU (e.g. Wegener, C-537/17, see more here, and Ceske aerolinie, C-502-18, see more here), AG Athanasios Rantos finds that passengers are due compensation, as when the delay occurs in connected flights is irrelevant, as long as one reservation has been made for the flights, which if treated as one unit fall within the scope of application of the Regulation. The slight difference in this case is that the passengers want to claim compensation from a non-Community air carrier, however, AG Athanasios Rantos does not consider this an issue, following the non-contested fact that United Airlines was an operating air carrier on these flights (para 52).

The long arm of Regulation 261/2004 - AG Saugmandsgaard Øe in Airhelp (C-451/20)

On October 6 also AG Saugmandsgaard Øe issued his opinion in another case pertaining to the interpretation of the provisions of Regulation 261/2004 on air passenger rights - Airhelp (C-451/20). We have previously commented on other cases concerning connecting flights, covered by one reservation, as often a question arises of the applicability of Regulation 261/2004 to these flights. The previous judgments concerned however connected flights were at least one of them took place outside the EU. Here, the passenger booked a flight with Austrian Airlines from Moldavia to their final destination in Thailand via Vienna. Thus, the operating air carrier was a Community carrier and each of the two flights within the reservation either arrived at or departed from a European airport. The original port of departure and the final destination were, however, outside the EU. Should Regulation 261/2004 apply?

AG Saugmandsgaard Øe believes - yes. He uses the literal interpretation of Article 3(1) Regulation 261/2004 to note that there is no limitation in the wording of this provision, which would demand looking for a European connection only with the first point of departure and final point of destination if connected flights were involved (para 30). Importantly, he also indicates that a different method of interpretation would expose some passengers to unequal treatment, as whether they would be entitled to the protection of Regulation 261/2004 could depend on whether their flight was a single flight or bought together with other flights (para 34). AG Saugmandsgaard Øe looks into the past case law, as well, drawing a paralell to the need to assure a high level of air passengers' protection, which requires a broad interpretation of the provisions of Regulation 261/2004. Thus if in the previous cases the Regulation was found to be applicable even if one of the connecting flights would, on its own, not be covered by it, it should then also apply if the connecting flights, separately, would have been covered by it, but if they were assessed as a one unit, the Regulation would not be applied (para 51).

Generally, this reasoning is appealing as it indeed satisfies the purpose that the Regulation 261/2004 aims to achieve and again looks to protecting passengers against different treatment in comparable conditions (which seems to be the ratio behind many judgments in this area). It does further extend the obligations of the operating air carriers, however.

The second question posed is less controversial, as it asked whether operating air carriers are liable pursuant to Regulation 261/2004 to pay out compensation for a delay of a flight that was arranged as an alternative travel arrangement, to relief them from that compensatory duty - pursuant to Article 5(1)(c)(iii) Regulation 261/2004. As that provision requires that the alternative flight reaches the final destination within 2 hours from the originally planned arrival time, a delay in meeting this timeframe leads to the air carrier not complying with this whole provision - and therefore, the need to pay compensation to the inconvenienced air passengers (para 70).

Strikes may spread, that's not extraordinary - CJEU in Eurowings (C-613/20)

Last week the CJEU confirmed again the strict and narrow interpretation of a 'strike' as an extraordinary circumstance that would allow airlines not to pay out compensation for cancelled or delayed flights. In the case Eurowings (C-613/12), the passenger's flight was cancelled due to a strike of the cabin crew of the operating air carrier. Eurowings tried to claim that they received a late notice about the strike pertaining also to their crews, as originally the notification mentioned only crews of Lufthansa as participating in that strike (Eurowings is a subsidiary of Lufthansa). Further, the strike was spontaneously extended and there was no reason for it, as Lufthansa gave in to the demands and announced pay rise on the day. Still, Eurowings showed they took mitigating measures and managed to arrange alternate flights for most of their traffic that day (para 10).

The CJEU first reminds that strike is inherent in the normal activity of air carriers, as this is an acceptable way for collective bargaining to manifest itself (para 20). It should also be expected that labour disputes could extend to different operating parts of a group of companies (para 23). The event was also not beyond the control of the operating air carrier, as the strike pertained to working conditions (which the air carrier may determine) and was announced (foreseeable event) (para 26). It should also be anticipated that employees of the subsidiary company may join such a strike in solidarity (para 27). The fact that the strike was unexpectedly extended is not decisive in considering whether it was within the air carrier's control (para 32). It could make such a strike unlawful, but that does not change its classification to an extraordinary event, as we found out in Krüsemann (see earlier Joint cases...).

This judgment heavily repeats previous reasoning in the case Airhelp, which we already commented on (Foreseeability...).

(No)Flight flurry - 3 opinions of AG Pikamäe on Regulation 261/2004

Yesterday, AG Priit Pikamäe issued three opinions related to the interpretation of various provisions of Regulation 261/2004 on air passenger rights: Airhelp (C-263/20), Corendon Airlines (C-395/20) and Corendon Airlines (joined cases C-146/20, C-188/20, C-196/20 and C-270/20).

 

 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).