On 21 December 2021, the European Court of Justice (ECJ) delivered a new judgment on EU Regulation No. 261/2004 in:
Following several requests for preliminary ruling forwarded by the regional court in Düsseldorf and the regional court in Korneuburg, the ECJ had to rule whether passengers, whose flights had been brought forward by one hour or more, were entitled to financial compensation. The ECJ was also asked whether the information about the changed schedule should be seen as an offer of alternative transport, with the respective reduction in compensation, as provided for in article 7(2) of EU Regulation No. 261/2004.
The ECJ was asked to interpret the following provisions of EU Regulation No. 261/2004:
- article 5(1)(c);
- article 7(1); and
- article 8(1)(a) and (b).
Additionally, it was asked to interpret the terms "confirmed booking/reservation" and "other proof" in article 2 and article 3. All of these cases involved a third party making the booking, and the operating carrier did not confirm preliminary flight times with the booking travel agency or the passengers.
The claimants all claimed compensation from the respective air carrier for a change of their flight times by one hour or more. The details of the three German cases are set out below.
The three claimants booked a travel package via a tour operator with the carrier from Düsseldorf, Germany to Antalya, Turkey. The carrier brought the flight time forward by one hour and 40 minutes and informed the agency, which did not inform the passengers. They missed the flight and claimed for compensation. The local court dismissed the claim and ruled that a change in flight time by one hour and 40 minutes is minor and cannot be seen as cancellation. The claimants appealed and the court of appeal suspended the proceedings to ask the ECJ whether a change in flight times has to be seen as a cancellation and whether the change can be classified as an offer of alternative transport.
In this case, the claimant booked a travel package via a tour operator with a return flight from Düsseldorf, Germany to Side, Turkey. The tour operator issued tickets with a preliminary flight plan and a notice to confirm the final flight times before travelling. The passenger took the flights, which in the end were scheduled with different flight times. The outbound flight was scheduled 14 hours later than originally planned, while the inbound flight was scheduled more than two hours earlier than originally planned. The final flight plan was confirmed to the tour operator almost six months in advance. The local court ruled that the issued document with the preliminary flight times was not a confirmed booking as per article 2 lit f of EU Regulation No. 261/2004 and dismissed any claim for compensation.
The claimants appealed the decision and the Düsseldorf Court of Appeal suspended proceedings to ask whether the preliminary flight times issued by the tour operator could be seen as a confirmed booking, even if no seat had been booked for the passenger by the tour operator, and therefore whether compensation had to be paid. Further, the Court asked whether a flight that is brought forward by more than two hours has to be classified as cancelled. As in the case C-146/20, the Court further asked about the classification of the changed schedule as an offer of alternative transport and whether the compensation had to be reduced as in article 7(2) of EU Regulation No. 621/2004 in this case.
This case concerned a flight that was booked as part of a tour package from Hamburg, Germany to Palma de Mallorca, Spain. Again, the tour operator issued a document named "travel registration" with preliminary flight times that had not been confirmed by the operating carrier. In the end, the flight was scheduled 11 hours later. The claim was assigned to a claim farm and granted. The court ruled that the issued document had to be seen as a confirmed booking and therefore compensation had to be paid. The defendant appealed the case and the court of appeal suspended the proceedings to ask the ECJ whether the issued document, based on a preliminary flight plan without confirmation by the carrier, could be seen as a confirmed booking.
Similarities between the cases
The joined cases all had in common that a travel agency had provided them with a document confirming their booking with "preliminary" flight times, which were finally set to different times (both earlier and later) by the respective operating carriers. The affected passengers claimed either the payment of a lump sum corresponding to cancelled flights for the flights brought forward, or compensation for delayed flights as established in Sturgeon.(6)
On the local court level, the claims were, with one exception,(7) dismissed, ruling that either the document issued by the travel agency could not be seen as a confirmed booking, or that the change made in the scheduled hours did not constitute a cancellation, as there was no delay on arrival. However, in case C-196/20, the local court of Düsseldorf ruled that the tour operator confirmation was sufficient and granted compensation for the delayed flight according to Sturgeon.(8) The courts of appeal suspended the proceedings, after the claimants or defendant appealed the first-instance decision, to ask the ECJ for preliminary ruling. The claimants have in common that they all argued that a (preliminary) confirmation for a flight by a tour operator is sufficient to constitute a "confirmed booking" and has to be seen as "other proof" of confirmed reservation for the flight concerned. This confirmation can be given not only by the operating carrier, but also by the travel agency, as happened here.
Further, the claimants argued that a flight which is brought forward by more than several hours should be seen as cancelled. The courts of appeal asked the question of whether a brought-forward flight can be seen as an alternative transport. In addition, if this was the conclusion, then the compensation should be reduced by 50% as per article 7(2).
The ECJ ruled that a flight that was brought forward by more than one hour in relation to the initially issued flight times is classified as cancelled. Furthermore, a document issued by a tour operator as a preliminary flight plan without reconfirmation by the carrier entitles the passengers to compensation, if the flight times are actually different later. Contrary to the prior ruling in the Wirth case,(9) where the ECJ ruled that for a compensation there must be a contract with the operating carrier, here, the preliminary flight times were only issued by the tour operators, and it was the tour operators that had a contractual relationship with the passengers. A contractual relationship between the tour operator and the operating carrier did not exist here and was – suddenly – no longer necessary for the airline's liability.
The ECJ further admitted that the wording of EU Regulation No. 261/2004 does not allow a brought-forward flight to be considered as cancelled. In addition, it admits that in prior classification of the term "cancellation", as the ECJ ruled in Sousa Rodríguez,(10) the term requires the adoption of an express decision to cancel. Contrary to that earlier decision, the ECJ ruled to consider a change in tentative scheduling as a cancellation when issued by tour operators in an "other proof" and that an explicit cancellation decision is no longer necessary.
Lastly, the ECJ stated that a flight that was brought forward in schedule by one hour or more can be seen as alternative transport. However, a reduction under paragraph 2 should not be considered in the case of an earlier transport time here. This is justified by the fact that earlier carriage – although provided for in the wording of EU Regulation No. 261/2004 – causes inconvenience and therefore a reduction in compensation is not warranted.
The main objective of EU Regulation No. 261/2004 is the high level of protection for passengers,(11) so the ECJ held that provisions conferring rights to air passengers must be interpreted broadly.(12)
This judgment, as is becoming habitual in decisions concerning EU Regulation No. 261/2004, is again in favour of the passengers and the pro-consumer approach of the ECJ.
Due to this ruling, the applicability of article 7(2)(a) is de facto nullified, as a reduction in the compensation on short-distance flights is now almost impossible. It seems like the ECJ does not want airlines to be rewarded for passenger-friendly behaviour after an incident such as a cancellation and, as in LE v Transportes Aéreos Portugueses SA,(13) eliminates a further possibility of exculpation provided for by law. Furthermore, holding the airlines liable for preliminary confirmations made by a third party shows once again the ECJ's ignorance of actual economic life, because article 13 of EU Regulation No. 261/2004 cannot correct every miscarriage of justice.
For further information on this topic please contact Sarah Joanna Haas at Arnecke Sibeth Dabelstein by telephone (+49 403 177 9756) or email ([email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
(1) AD, BE, CF v Corendon Airlines.
(2) JG, LH, MI, NJ v OP as liquidator of Azurair GmbH, intervener: alltours flugreisen GmbH.
(3) Eurowings GmbH v flightright GmbH.
(4) AG, MG, HG v Austrian Airlines AG.
(5) Airhelp Limited v Laudamotion GmbH.
(6) As ruled in ECJ, 19 November 2009, Sturgeon and others, cases C-402/07 and C-432/07, ECLI:EU:C:2009:716.
(8) ECJ, 19 November 2009, Sturgeon and others, Cases C-402/07 and C-432/07, ECLI:EU:C:2009:716.
(9) ECJ, 4 July 2018, Wirth u. a., C‑532/17, EU:C:2018:527.
(10) ECJ, 13 October 2011, Sousa Rodríguez and Others, C83/10, EU:C:2011:652.
(11) ECJ, 17 September 2015, van der Lans, C‑257/14, EU:C:2015:618, paragraph 26 and the case law cited.
(12) ECJ, 22 April 2021, Austrian Airlines, C‑826/19, EU:C:2021:318, paragraph 61 and the case law cited.