Sophia Iwantscheff December 6 2017 Unaffected flights cannot be used in calculation of compensation payments Arnecke Sibeth Dabelstein | Aviation - Germany Sophia Iwantscheff Aviation FactsDecisionCommentFacts A plaintiff has claimed €350 compensation pursuant to EU Regulation 261/2004 for being denied boarding on a journey from Lima to Munich via Paris. The plaintiff was transported on time from Lima to Paris, but was denied boarding for the flight from Paris to Munich.The defendant paid €250 compensation, as the distance of the flight from Paris to Munich entitled the passenger to such. However, the plaintiff argued that the whole journey should be taken into consideration, which would entitle him to €600 compensation.The case called into question the distance that must be taken into consideration when calculating compensation according to Article 7(1) of the regulation.Decision The Erding Local Court agreed with the defendant and dismissed the claim for the amount of €350. In the court's opinion the requirements for compensation by the plaintiff according to Articles 4 and 7 had been met. However, the amount of the compensation had not been determined correctly by the plaintiff.The compensation differs according to the distance of the flight in question. The court specified that only the distance of the flight on which the boarding was denied – or any other disruption that leads to a justified compensation claim occurs – should be taken into account. This interpretation is based on Article 7(1), which refers to the point of arrival but not the point of departure, stating that "[i]n determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger's arrival after the scheduled time".The court decided that in light of Article 7's wording, only the disrupted flights that had affected the overall delay of the passenger should be included in the calculation of the distance. Therefore, where a reservation consists of several flights, these are to be considered separately. In this case, the journey was divided into the flight from Lima to Paris and the subsequent flight from Paris to Munich.The court argued that this interpretation is in line with settled case law. Passengers are, for example, not entitled to compensation for flight legs with non-community carriers departing outside the European Union. According to Article 3, any irregularities on such flights lie outside the scope of the regulation.Other flights should be included in the calculation only if the delay or cancellation of the first flight affects the following one. In these cases, both flights are affected by the disruption. This justifies the calculation of the flight distance from the first departure airport to the final destination and hence a higher compensation payment.As Article 7 does not provide for a scenario in which one flight does not affect the subsequent one, the court interpreted the regulation, concluding that – even considering the high level of protection for passengers – it is not required to include the distance of an unaffected flight.When a passenger is denied boarding the inconvenience lies in the fact that they must be rerouted. However, shorter distances cause less inconvenience, as there are generally more rerouting options and therefore shorter delays.The regulation's prioritisation of shorter delays is demonstrated in Article 7(2) which allows the air carrier to pay only 50% of compensation in cases where the flight is over 3,500 kilometres and is delayed between three and four hours.CommentThe Erding Local Court accurately interpreted Article 7. While considering the interest of the passenger and following the intention of the regulation, within other articles it found a fair solution for the gaps in the regulation.Once again a jurisdiction has had to interpret the regulation as the regulators have failed to account for all possible circumstances. As the order could not be appealed, no German regional court has yet had the opportunity to issue a decision regarding this question.For further information on this topic please contact Sophia Iwantscheff atArnecke Sibeth Rechtsanwaelte by telephone (+49 69 97 98 85 0) or email ([email protected]). The Arnecke Sibethwebsite can be accessed at www.arneckesibeth.com.