Sarah Joanna Haas December 15 2021 C 253/21: does diversion equal cancellation? Arnecke Sibeth Dabelstein | Aviation - Germany Sarah Joanna Haas Aviation FactsDecisionCommentOn 6 October 2021, in FI and RE v Tuifly GmbH,(1) the European Court of Justice (ECJ) delivered a new order on EU Regulation No. 261/2004 following a request for a preliminary ruling forwarded by the Hamburg Court of Appeal. The ECJ had to rule on whether passengers who had been transported on a flight that was later rerouted to another airport and who had reached their final destination by bus with less than a three-hour delay were entitled to financial compensation. Therefore, the ECJ was asked to interpret article 5(1)(c) and article 7(1) of EU Regulation No. 261/2004.FactsThe plaintiffs claimed compensation from the air carrier TUIfly for a cancellation because their slightly delayed flight from Gran Canaria, Spain, to Hamburg, Germany, had been diverted to Hanover, Germany, as Hamburg airport had been closed due to a curfew. The affected passengers had been brought to their final destination by bus and had reached Hamburg with a delay of less than three hours.The local court of Hamburg admitted the claim, ruling that the change in the flight plan (the diversion) was equal to a cancellation, despite the fact that the ECJ had previously ruled that:a diverted flight landing at an airport which is not that for which the booking was made but which serves the same town, city or region is not capable of conferring on the passenger a right to compensation for cancellation of a flight.(2)The defendant appealed the decision, arguing that the flight had not been cancelled and that the delay at the final destination had been less than three hours and, as such, did not reach the threshold established in the Sturgeon ruling.(3)The Hamburg Court of Appeal therefore suspended the proceedings and asked the ECJ whether the diversion and subsequent transport by bus had to be seen as a cancellation under the premise that the (minor) delay had not been due to extraordinary circumstances and that the airport of Hanover was not within the same town or region.(4)DecisionIn accordance with its earlier decisions, the ECJ ruled that for a flight to be considered to have been operated, the aircraft not only must have departed from its planned point of origin, but must also reach the scheduled destination that appeared in the itinerary.(5) As a consequence, the ECJ confirmed its previous case law: a flight that lands at a different airport, and thus does not comply with the itinerary, has to be considered to be cancelled,(6) unless it is rerouted to an airport situated in the same town, city or region.(7) However, passengers can still be entitled to compensation for a delay if they reach their final destination more than three hours after the scheduled arrival time.(8) The ECJ nevertheless accepted the premise of the Hamburg Court of Appeal – namely, that Hanover airport was not situated in the same city, metropolitan area or region – to decide that the flight in question had effectively been cancelled.(9)CommentThis order, as is unfortunately habitual in decisions concerning EU Regulation No. 261/2004, is strikingly in favour of the passengers. The mere fact that the ECJ agreed that Hanover is not situated in the same geographical area as Hamburg is escapist: the facts that the distance between the two airports is only 150km and that the passengers had reached their final destination with less than a three-hour delay should have led to a different solution.Consumer protection is once again the number one priority. The reasoning of the ECJ disregarded the efforts made by the airline to transport the passengers to their final destination as soon as possible, in compliance with its obligations. The consequences of this decision could even be contrary to the interests of the passengers. If an airline knows that a minor delay due to non-extraordinary circumstances will result in a diversion that will be qualified as a cancellation, it can decide to cancel the flight directly, even if it could have brought the passengers to their final destination with less than a three-hour delay. This order further opens more questions than it provides answers – most notably, concerning the crucial issue of why transport to the final destination with a minor delay should not be more important than financial compensation.This decision is yet another demonstration of the ECJ's pro-consumer approach. Committed only to awarding a lump sum payment to passengers without considering the potential consequences of its decisions for both passengers and airlines, the ECJ appears to be increasingly disconnected from reality.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.Endnotes(1) ECJ, Order, 6 October 2021, TUIfly, Case C-253/21, ECLI:EU:C:2021:840.(2) ECJ, 22 April 2021, WZ v Austrian Airlines AG, Case C-826/19, ECLI:EU:C:2021:318.(3) ECJ, 19 November 2009, Sturgeon, Cases C-402/07 and C-432/07, ECLI:EU:C:2009:716.(4) As stated in article 8(3) of EU Regulation No. 261/2004.(5) As in ECJ, 13 October 2011, Sousa Rodríguez u a, Case C‑83/10, EU:C:2011:652.(6) TUIfly, paragraph 22.(7) WZ, paragraph 44.(8) Id.(9) TUIfly, paragraphs 25 and 26.