Regulation 261/2004: Past, Present and Future

20th November 2020 by Kathryn Ward

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Kathryn Ward, Henry Morris and Jonathan Lin

In this article, the authors examine current and forthcoming caselaw on Regulation 261/2004 and also provide a comprehensive review of past ECJ decisions on the Regulation.

Travel Insurance

In 2020, the Court of Justice of the European Union (ECJ) addressed several cases on the interpretation of Regulation 261/2004 (EC261/2004) most notably on the rights of passengers in the event of cancellation or long delay.

These cases, which dealt with, amongst other issues, questions on jurisdiction, entitlement to double compensation, and the suitability of accommodation provided as part of care and assistance obligations, provide airlines with greater certainty in deciding whether and how to defend claims.

Whilst the ECJ has generally maintained a consumer-friendly approach, several cases such as OI v Air Nostrum Lineas Aereas del Mediterraneo SA (Case C-191/19) have demonstrated that the ECJ is willing to limit the scope of EC261/2004 compensation where passengers have suffered no material delay or inconvenience.

One of the most important cases decided this year was LE v Transport Aéreos Portugueses SA (Case C 74/19). Airlines seeking to rely on the Article 5(3) extraordinary circumstances defence must demonstrate that such circumstances could not have been avoided even if all reasonable measures were taken.

Specifically on the issue of re-booking passengers on the next available flight which departs a day later than the original scheduled departure day, the ECJ held that the reasonable measures defence must be satisfied where (1) there was no possibility of a direct/indirect re-route on the carrier or another carrier due to arrive before the alternative flight (due to either flight schedules or lack of available seats); or (2) the proposed re-routing would amount to an intolerable sacrifice in light of the carrier’s capacity. This case may prevent claimants from seeking to use creative re-routing options involving several connections which nevertheless arrive before the re-booked alternative flight.

Approaching the end of 2020, another important case is the Supreme Court appeal of Bott & Co Solicitors Ltd v Ryanair DAC. Originally due to be heard in October before being adjourned, this case is of particular relevance to airlines with terms in their conditions of carriage requiring passengers to submit compensation claims directly to them in the first instance. In February 2019, the Court of Appeal held that such terms were not unreasonable and that, where a law firm does no more than send a letter before action, it has no interest in any settlement sum.

Going into 2021, the EU (Withdrawal Agreement) Act 2018 will retain all existing EU case law into English law. Additionally, the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019 directly transposes EC261/2004 into English law. However, following 31 December 2020, the UK will no longer be bound by any subsequent EU case law and there is uncertainty on whether English courts will continue to make similar interpretations as their European counterparts.

More details on the above cases, other EC261/2004 cases in 2020, and also important EC261/2004 case law since 2008 is available in the Key Caselaw Timeline which can be seen below.

Kathryn Ward, is Of Counsel with DLA Piper
She can be contacted at: kathryn.ward@dlapiper.com
Henry Morris is a Trainee Solicitor with DLA Piper
He can be contacted at: henry.morris@dlapiper.com
Jonathan Lin is a Trainee Solicitor with DLA Piper
He can be contacted at: jonathan.lin@dlapiper.com

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CASELAW TIMELINE

2008


Shenkel v Emirates (C-173/07) – 10 July 2008

“the concept of “flight” within the meaning of Regulation No 261/2004 must be interpreted as consisting essentially in an air transport operation, being as it were a “unit” of such transport, performed by an air carrier which fixes its itinerary.”

Wallentin Hermann v Alitalia (C-549/07) – 22 December 2008

Technical faults would not constitute extraordinary circumstances unless the “problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its control.”

2009

Rehder v Air Baltic Corporation (Case C-204/08) [2009] I.L.Pr. 44 – 9 July 2009

The Court held that a passenger claiming compensation under Regulation 261/2004 could do so before a court in the jurisdiction of the Member State of the departure or arrival of the aircraft.

Sturgeon v Condor Flugdienst GmbH (C402/07) and Bock and Lepuschitz v Air France (C-432/07) – 19 November 2009 (See Nelson – October 2012)

2011

Sanghvi v Cathay Pacific Airways [2012] 1 Lloyd’s Rep 46 – 10 May 2011

“Para [37] of Schenkel makes it tolerably clear, to my mind, that article 3 connects the liability of an air carrier to either (a) a flight departing from the territory of a member state where denial of boarding will have taken place on the soil of that member state or (b) the grant of a carrier’s operating licence by a member state when the flight’s destination is a member state. Both (a) and (b) provide a logical territorial basis for the application of the regulation to the denial of boarding by a carrier.”

“It seems to me, therefore, that the judge below was right to say that the regulation is only concerned with the individual flight components of any journey so that the flight to which the claimant says he was denied boarding, CX111, did not depart from the UK but from Hong Kong…”

Eglitis v Latvijas Republikas Ekonomikas Ministrija/Air Baltic (Intervener) (C-294/10) – 12 May 2011

“In view of the foregoing, the answer to the questions is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that an air carrier, since it is obliged to implement all reasonable measures to avoid extraordinary circumstances, must reasonably, at the stage of organising the flight, take account of the risk of delay connected to the possible occurrence of such circumstances. It must, consequently, provide for a certain reserve time to allow it, if possible, to operate the flight in its entirety once the extraordinary circumstances have come to an end. However, that provision cannot be interpreted as requiring, as a “reasonable measure”, provision to be made, generally and without distinction, for a minimum reserve time applicable in the same way to all air carriers in all situations when extraordinary circumstances arise. The assessment of the ability of the air carrier to operate the programmed flight in its entirety in the new conditions resulting from the occurrence of those circumstances must be carried out in such a way as to ensure that the length of the required reserve time does not result in the air carrier being led to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time. Article 6(1) of that regulation is not applicable in the context of such an assessment.”

Rodriguez and Others v Air France SA (Case C-83/10) – 13 October 2011

“‘cancellation’, as defined in Article 2(1) of Regulation No 261/2004, must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, it does not refer only to the situation in which the aeroplane in question fails to take off at all, but also covers the case in which that aeroplane took off but, for whatever reason, was subsequently forced to return to the airport of departure where the passengers of that aeroplane were transferred onto other flights.”

“the meaning of ‘further compensation’, used in Article 12 of Regulation No 261/2004, allows the national court to award compensation, under the conditions provided for by the Montreal Convention or national law, for damage, including non-material damage, arising from breach of a contract of carriage by air. On the other hand, that meaning of ‘further compensation’ may not be the legal basis for the national court to order an air carrier to reimburse to passengers whose flight has been delayed or cancelled the expenses the latter have had to incur because of the failure of that carrier to fulfil its obligations to assist and provide care under Article 8 and Article 9 of Regulation No 261/2004.”

2012

Nelson v Lufthansa C-581/10 and Tui, BA, EasyJet and IATA v CAA (C-629/10) – 23 October 2012

“Articles 5 to 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed are entitled to compensation under that regulation where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.”

Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.”

“[T]he loss of time inherent in a flight delay, which constitutes an inconvenience within the meaning of Regulation No 261/2004 and cannot be categorised as ‘damage occasioned by delay’ within the meaning of Article 19 of the Montreal Convention, cannot come within the scope of Article 29 of that convention Consequently, the obligation under Regulation No 261/2004 intended to compensate passengers whose flights are subject to a long delay is compatible with Article 29 of the Montreal Convention.”

Finnair Oyj v Lassooy (Case C-22/11) – 4 October 2012

“the concept of ‘denied boarding’, within the meaning of Articles 2(j) and 4 of Regulation No 261/2004, must be interpreted as relating not only to cases where boarding is denied because of overbooking but also to those where boarding is denied on other grounds, such as operational reasons.”

“Articles 2(j) and 4(3) of Regulation No 261/2004 must be interpreted as meaning that the occurrence of ‘extraordinary circumstances’ resulting in an air carrier rescheduling flights after those circumstances arose cannot give grounds for denying boarding on those later flights or for exempting that carrier from its obligation, under Article 4(3) of that regulation, to compensate a passenger to whom it denies boarding on such a flight.”

Rodriguez Cachafeiro v Iberia, Lineas Aereas de Espana SA (Case C-321/11) – 4 October 2012

“Article 2(j) of Regulation No 261/2004, read in conjunction with Article 3(2) of that regulation, must be interpreted as meaning that the concept of ‘denied boarding’ includes a situation where, in the context of a single contract of carriage involving a number of reservations on immediately connecting flights and a single check-in, an air carrier denies boarding to some passengers on the ground that the first flight included in their reservation has been subject to a delay attributable to that carrier and the latter mistakenly expected those passengers not to arrive in time to board the second flight.”

Cuadrench More v Koniinklijke Luchvaart Maatschappij N.V. (C-139/11) – 22 November 2012

The time limit for bringing a claim under EC261/2004 was a matter for national law, because the provisions for compensation contained in EC261/2004 fall outside the terms of the Convention.

2013

McDonagh v Ryanair Ltd (Case C-12/11) – 31 January 2013

“Article 5 of Regulation No 261/2004 must be interpreted as meaning that circumstances such as the closure of part of European airspace as a result of the eruption of the Eyjafjallajökull volcano constitute ‘extraordinary circumstances’ within the meaning of that regulation which do not release air carriers from their obligation laid down in Articles 5(1)(b) and 9 of the regulation to provide care.”

“Articles 5(1)(b) and 9 of Regulation No 261/2004 must be interpreted as meaning that, in the event of cancellation of a flight due to ‘extraordinary circumstances’ of a duration such as that in the main proceedings, the obligation to provide care to air passengers laid down in those provisions must be complied with, and the validity of those provisions is not affected. However, an air passenger may only obtain, by way of compensation for the failure of the air carrier to comply with its obligation referred to in Articles 5(1)(b) and 9 of Regulation No 261/2004 to provide care, reimbursement of the amounts which, in the light of the specific circumstances of each case, proved necessary, appropriate and reasonable to make up for the shortcomings of the air carrier in the provision of care to that passenger, a matter which is for the national court to assess.”

Folkerts v Air France (C-11/11) – 23 February 2013

“Article 7 of Regulation No 261/2004 must be interpreted as meaning that compensation is payable, on the basis of that article, to a passenger on directly connecting flights who has been delayed at departure for a period below the limits specified in Article 6 of that regulation, but has arrived at his final destination at least three hours later than the scheduled arrival time, given that the compensation in question is not conditional upon there having been a delay at departure and, thus, upon the conditions set out in Article 6 having been met.”

“The opposite approach would constitute an unjustified difference in treatment, inasmuch as it would effectively treat passengers of flights arriving at their final destination three hours or more after the scheduled arrival time differently depending on whether their flights were delayed beyond the scheduled departure time by more than the limits set out in Article 6 of Regulation No 261/2004, even though their inconvenience linked to an irreversible loss of time is identical.”
“[T]he amount of compensation, fixed at EUR 250, 400 and 600 depending on the distance of the flights concerned, may still be reduced by 50% in accordance with Article 7(2)(c) of Regulation No 261/2004, where the delay is – in the case of a flight not falling under subparagraphs (a) or (b) of Article 7(2) – less than four hours.”

2014

Huzar v Jet2.com [2014] EWCA Civ 791 – 11 June 2014

“Difficult technical problems arise as a matter of course in the ordinary operation of the carrier’s activity. Some may be foreseeable and some not but all are, in my view, properly described as inherent in the normal exercise of the carrier’s activity. They have their nature and origin in that activity; they are part of the wear and tear.”

Dawson v Thomson Airways [2015] 1 WLR 883 – 19 June 2014

Obligations under 261/2004 fall outside the scope of the Montreal Convention 1999 and the Convention has no application to the claim including the two year time limit for bringing a claim

Germanwings GmbH v Ronny Henning (Case C-452/13) – 4 September 2014

“the concept of ‘arrival time’, which is used to determine the length of the delay to which passengers on a flight have been subject, corresponds to the time at which at least one of the doors of the aircraft is opened, the assumption being that, at that moment, the passengers are permitted to leave the aircraft.”

Siewert and Other v Condor Fulgienst (Case C-394/14) – 14 November 2014

“Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a situation where, as in in the case before the referring court, an airport’s set of mobile boarding stairs collides with an aircraft cannot be categorised as ‘extraordinary circumstances’ exempting the air carrier from its obligation to pay the passengers compensation in the event of a long delay to a flight operated by that aircraft.”

2015

Van der Lans v Koniinklijke Luchvaart Maatschappij N.V. (C-257/14) – 17 September 2015

Even in the event of a flight cancellation on account of unforeseen technical problems, air carriers are required to compensate passengers.

However, certain technical problems resulting, in particular, from hidden manufacturing defects affecting the safety of flights or acts of sabotage or terrorism may exempt air carriers from their obligation to pay compensation.

2016

Ruijssenaars and Others v Staatssecretaris van Infrastructuur en Milieu (Case C-145/15) – 17 March 2016

“Article 16 of Regulation No 261/2004 must be interpreted as meaning that, where an individual complaint has been made by a passenger to the body designated by each Member State pursuant to Article 16(1) of the regulation following the refusal by an air carrier to pay to the passenger the compensation provided for Article 7(1) of the regulation, that body is not required to take enforcement action against the carrier with a view to compelling it to pay the compensation.”

Mennens v Emirates (Case C-255/15) – 22 June 2016

“Article 10(2), read in conjunction with Article 2(f), of Regulation No 261/2004, must be interpreted as meaning that where a passenger is downgraded on a flight, the price to be taken into account in determining the reimbursement for the passenger affected is the price of the flight on which he was downgraded unless that price is not indicated on the ticket entitling him to transport on that flight, in which case it must be based on the part of the price of the ticket corresponding to the quotient resulting from the distance of that flight and the total distance which the passenger is entitled to travel.”

“Article 10(2) of Regulation No 261/2004 must be interpreted as meaning that the price of the ticket to be taken into consideration for the purposes of determining the reimbursement owed to that passenger, where he is downgraded on a flight, is solely the price of the flight itself, to the exclusion of taxes and charges indicated on that ticket, as long as neither the requirement to pay those taxes and charges nor their amount depends on the class for which that ticket has been purchased.”

2017

Pešková and Peška v Traevl Service A.S. (C-315/15) – 4 May 2017

A collision between an aircraft and a bird is classified under the concept of “extraordinary circumstances” within the meaning of Article 5(3).

Cancellation or delay of a flight is not due to extraordinary circumstances when it is the result of the use by the carrier of an expert of its choice to carry out fresh safety checks necessitated by a collision with a bird after those checks have already been carried out by an authorised expert.
The “reasonable measures” which a carrier must take to reduce or prevent the risks of collision with a bird and thus be released from its obligation to compensate passengers include control measures preventing the presence of such birds provided that, in particular at the technical and administrative levels, such measures can actually be taken by that carrier, do not require it to make intolerable sacrifices in the light of the capacities of its undertaking and that carrier has shown that those measures were actually taken as regards the flight affected.

In the event of a delay to a flight equal to or in excess of three hours in arrival caused not only by extraordinary circumstances, which could not have been avoided by measures appropriate to the situation and which were subject to all reasonable measures by the carrier to avoid the consequences thereof, but also in other circumstances not in that category, the delay caused by the first event must be deducted from the total length of the delay in arrival of the flight concerned in order to assess whether compensation for the delay in arrival of that flight must be paid.

Krijgsman v Surinaamse Luchtvaart Maatschappij NV (C-302/16) – 11 May 2017

“the operating air carrier is required to pay the compensation specified in those provisions in the case where a flight was cancelled and that information was not communicated to the passenger at least two weeks before the scheduled time of departure, including in the case where that air carrier, at least two weeks before that time, communicated that information to the travel agent via whom the contract for carriage had been entered into with the passenger concerned and the passenger had not been informed of that cancellation by that agent within that period.”

“the discharge of obligations by the operating air carrier pursuant to Regulation No 261/2004 is without prejudice to its rights to seek compensation, under the applicable national law, from any person who caused the air carrier to fail to fulfil its obligations, including third parties.”

Bossen and others v Brussels Airlines (C-559/16) – 7 September 2017

“Article 7(1) of Regulation (EC) No 261/2004 must be interpreted as meaning that
the concept of “distance”, in the case of air routes with connecting flights, relates only to the distance calculated between the point of departure and the final destination on the basis of the “great circle” method, regardless of the distance actually flown.

“Article 7(1) of Regulation (EC) No 261/2004 must be interpreted as meaning that the concept of “distance”, in the case of air routes with connecting flights, relates only to the distance calculated between the point of departure and the final destination on the basis of the “great circle” method, regardless of the distance actually flown”.

Gahan/Buckley v Emirates [2017] EWCA Civ 1530 – 12 October 2017

“Where the carrier provides a passenger with more than one flight to enable him to arrive at his destination, the flights are taken together for the purpose of assessing whether there has been three hours’ or more delay.”

“Regulation 261 applies to flights by non-Community carriers out of EU airspace even if flight 1 or flight 2 lands outside the EU. The necessary starting point here is that there is no requirement in Regulation 261 that they should land in the EU. Regulation 261 takes effect when the carrier is present in the EU and it imposes a contingent liability on the carrier at that point. The liability may never crystallise but if it does do so, it will crystallise outside the jurisdiction.”

“The basis of jurisdiction asserted over non-Community carriers is territorial… The measure uses an activity outside the jurisdiction not to claim jurisdiction but to quantify a sanction imposed within the jurisdiction… Regulation 261 applies to a non-Community carrier because they use EU airports.

It is rational for the EU legislature to measure delay by reference to the final destination where there are two or more flights which are directly connecting as that is likely to be the best measure of the inconvenience to the passenger.”

“This Court is bound by its decision in Dawson. In my judgment that case cannot be distinguished simply because it concerned Community carrier. The reasoning applies equally to non-Community carriers. In the light of Dawson, Article 27 of the Vienna Convention (see paragraph 38(iii) above) does not assist Emirates.”

“This Court in Dawson thus made it clear that the jurisprudence of the ECJ as to the meaning of Regulation 261 is binding on this Court even though it conflicts with the jurisprudence of the Supreme Court and House of Lords. It is correct that the decision in Dawson concerned a Community carrier and not a non-Community carrier but the principle was that a point of international law decided by the ECJ was binding on the national court if it was a necessary step in reaching a conclusion as to the meaning of an EU regulation. This is equally applicable to Community and non-Community carriers and thus Dawson cannot be distinguished.”

flightright GmbH v Air Nostrum Líneas Aéreas del Mediterráneo, Roland Becker v Hainan Airlines Co. Ltd, Mohamed Barkan and alii v Air Nostrum, Lineas Aereas del Mediterraneo, SA) (joined cases C-274/16, C-447/16 and C-448/16) – AG Bobeck Opinion – 19 October 2017

“Where passengers are transported on a journey which consists of two connecting flights, the place of departure of the first leg and the place of arrival of the second leg both constitute the place of performance [under Article 5(1)(b) of Regulation 44/2001], in the case where the claim is directed against the air carrier which operated the first leg on which the delay took place and which was not the contracting air carrier of the passenger.”

“the rules of jurisdiction defined in [Regulation 44/2001] do not apply to a defendant domiciled outside the EU… The international jurisdiction of the court seized must therefore be assessed under the rules applicable in the forum of the court seized. However, such national rules on international jurisdiction cannot make the enforcement of a claim based on Article 7 of Regulation No 261/2004 by a passenger practically impossible or excessively difficult.”

2018

Krusemann and Others v TUIfly GmbH (Case C-195/17) – 12 April 2018

“the spontaneous absence of a significant part of the flight crew staff (‘wildcat strikes)’, such as that at issue in the disputes in the main proceedings, which stems from the surprise announcement by an operating air carrier of a restructuring of the undertaking, following a call echoed not by the staff representatives of the company but spontaneously by the workers themselves who placed themselves on sick leave, is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision.”

Wegener v Royal Air Maroc SA (Case C-537/17) – 31 May 2018

“Article 3(1)(a) of Regulation No 261/2004 must be interpreted as meaning that the regulation applies to a passenger transport effected under a single booking and comprising, between its departure from an airport situated in the territory of a Member State and its arrival at an airport situated in the territory of a third State, a scheduled stopover outside the European Union with a change of aircraft.”

flightright GmbH v Iberia Express SA (Case C-186/17) – 6 June 2018

“A right to compensation exists under Article 7 of [Regulation 261/2004] against an ‘operating air carrier’ when a passenger fails to catch a directly connecting flight as a result of a relatively minor delay in arrival of the preceding flight, with the result that there is a delay in arrival at the final destination of three hours or more, even when the flights concerned are operated by different air carriers and the booking was made through a tour operator who carried out the booking of the entire flight journey via another (contractual) air carrier which did not operate flights on any part of the journey.”

Wolfgang Wirth and Others v Thomson Airways Ltd (Case C-532/17) – 4 July 2018

“the concept of an ‘operating air carrier’ within the meaning of Regulation No 261/2004 and, in particular, of Article 2(b) thereof must be interpreted as not covering the case of an air carrier, such as that at issue in the main proceedings, which leases to another air carrier an aircraft, including crew, under a wet lease, but does not bear the operational responsibility for the flights, even where the booking confirmation of a seat on a flight issued to passengers states that that flight is operated by the former air carrier.”

Harms and Others v Vueling Airlines SA (Case C-601/17) – 12 September 2018

“Regulation No 261/2004, and in particular Article 8(1)(a) thereof, must be interpreted as meaning that the price of the ticket to be taken into consideration for the purposes of determining the reimbursement owed by the air carrier to a passenger in the event of cancellation of a flight includes the difference between the amount paid by that passenger and the amount received by the air carrier, which corresponds to a commission collected by a person acting as an intermediary between those two parties, unless that commission was set without the knowledge of the air carrier, which it is for the referring court to ascertain.”

Moens v Ryanair Ltd (Case C-159/18) – 19 December 2018

“Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that the spillage of fuel on a runway, which caused that runway to be closed for more than two hours and gave rise to the delay of the flight concerned, falls within the scope of the notion of ‘extraordinary circumstances’ within the meaning of that provision. This event is not inherent in the normal exercise of the activity of the air carrier concerned and is beyond its actual control.”

2019

Blanche v easyJet [2019] EWCA Civ 69 – 6 February 2019

“In my view, Recital 15 could not be clearer. It states that, for the purposes of the Regulation, “extraordinary circumstances should be deemed to exist” where an ATMD has (amongst other things) caused a long delay to a particular aircraft on a particular day. The use of the expression “should be deemed to exist” is critical, because it leaves no room for doubt or argument: an ATMD which causes a long delay to a particular flight on a particular day should be deemed to be an extraordinary circumstance. That clear guidance is not qualified in any way.”
“Recital 15 does not provide the carrier with some sort of “get out of jail free” card merely because the long delay can be shown to be due to the impact of an ATMD. The carrier still has to satisfy the second limb of Recital 15, namely that all reasonable measures had been taken to avoid the delay due to the impact of the ATMD.”

Bott & Co Solicitors Ltd v Ryanair DAC [2019] EWCA Civ 143 – 12 February 2019

“I do not consider that the services provided by Bott in processing that vast majority can be said either to be “litigation services” of the kind that Lord Briggs must have had in mind; or to be required in order to promote access to justice, unless and until Ryanair disputes a claim. In addition, to recognise the existence of an equitable right would place a solicitor in a far more privileged position than a claims handler performing the same services. I cannot see any justification for that…”

“In my judgment, therefore, where Bott simply writes a letter of claim or assists a client to complete the on-line form, and the claim is paid in response to the letter or the form, it is not entitled to an interest in the compensation that equity will protect.”

“I find it difficult to see how Ryanair’s procedure could place a material obstacle in the passenger’s route to compensation. Taken in conjunction with Ryanair’s online process, it enables a passenger to claim compensation with the minimum of effort. It conforms with the advice given by regulators.”

This case has been appealed to the Supreme Court, due to be heard October 2020, but since been adjourned to a date TBC.

Germanwings GmbH v Wolfgang Pauels (Case C-501/17) – 4 April 2019

“damage to an aircraft tyre caused by a foreign object, such as loose debris, lying on an airport runway falls within the notion of ‘extraordinary circumstances’ within the meaning of that provision.

However, in order to be released from its obligation to pay passengers compensation under Article 7 of Regulation No 261/2004, an air carrier whose flight has been subject to long delay due to such ‘extraordinary circumstances’ must prove that it deployed all its resources in terms of staff or equipment and the financial means at its disposal in order to avoid the changing of a tyre damaged by a foreign object, such as loose debris, lying on the airport runway from leading to long delay of the flight in question.”

André Moens v Ryanair Ltd (Case C-159/18)- 26 June 2019

“Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, read in the light of recitals 14 and 25 thereof, must be interpreted as meaning that the presence of petrol on a runway of an airport which led to its closure and, consequently, the long delay of a flight to or from that airport, falls within the concept of ‘extraordinary circumstances’ within the meaning of that provision, when the petrol in question does not originate from an aircraft of the carrier that operated that flight.

Article 5(3) of Regulation No 261/2004, read in the light of recitals 14 and 15 thereof, must be interpreted as meaning that the presence of petrol on a runway of an airport which has led to the closure of that runway, the nature of which is established as an ‘extraordinary circumstance’, must be regarded as a circumstance which could not have been avoided even if all reasonable measures had been taken within the meaning of that provision.”

CS And Others v České aerolinie a.s. (Case C 502/18) – 11 July 2019

On the obligations of code share contractual carriers under 261/2004, in a situation where a passenger claimed compensation for delay from the contractual carrier in respect of a delay to the second flight operated by a non-EU carrier outside of the EU, it was held that:

A flight with one or more connections which is the subject of a single reservation constitutes a whole for the purpose of compensation under 261/2004.

The party liable can only be the operation carrier within the meaning under Article 2(b). There must be two cumulative conditions satisfied, namely (1) performance of the flight and (2) the existence of a contract with the passenger.

In the present case, Ceske did perform the flight under a contract with the passenger. It is therefore the operating carrier.

Flights booked under one contract must be considered as a single unit. An operating carrier operating the first flight cannot take refuge behind a claim that performance of a subsequent flight was operated by another carrier.

“Accordingly, in a situation such as that at issue in the main proceedings, where, in the context of connecting flights consisting of two flights that were the subject of a single reservation, the second flight is performed under a code-share agreement by an operating air carrier other than the operating air carrier that entered into the contract of carriage with the passengers concerned and that performed the first flight, the latter carrier remains subject to contractual obligations to the passengers, even in relation to the performance of the second flight.” Unless given authority or the end of the to-surface and and and and an English after the and and and and and fears of an online legal position non-international flight

“In the case of connecting flights, where there are two flights that are the subject of a single reservation, departing from an airport located within the territory of a Member State and travelling to an airport located in a non-Member State via the airport of another non-Member State, a passenger who suffers a delay in reaching his or her destination of 3 hours or more, the cause of that delay arising in the second flight, operated, under a code-share agreement, by a carrier established in a non-Member State, may bring his or her action for compensation under that regulation against the Community air carrier that performed the first flight.”

Radu-Lucian Rusu, Oana-Maria Rusuv v SC Blue Air – Airline Management Solutions SRL (Case C-354/18) – 29 July 2019

On the right to 261/2004 compensation in the case of denied boarding, the ECJ held that the amount of compensation due under Article 7 has no bearing on individual loss pertaining to the passenger’s own situation. Damages to cover individual loss suffered may be awarded as further compensation under Article 12(1), the amount and entitlement to which is to be determined by the national court. The ability to deduct Article 7 compensation from further compensation awarded pursuant to Article 12(1) is left to the national court.

With regard to information to be provided to passengers under Article 4(3), in conjunction with Article 8(1), it is up to the operating air carrier to disclose detailed information concerning re-routing options to passengers; the passenger is not expected to proactively seek them.
Finally, it is the carrier’s obligation (as opposed to the passenger’s) to prove that re-route as soon as reasonably practicable was offered.

LC, MD v easyJet Airline Co Ltd (Case C-756/18) – 24 October 2019

Article 3(2)(a) must be interpreted as meaning that passengers on a flight with a delay of 3 hours or more on arrival who have a confirmed reservation on that flight cannot be denied compensation solely on the ground that, upon claiming compensation, they failed to prove that they were present for check-in for that flight, in particular by means of a boarding card, unless it can be established that those passengers were not transported on the delayed flight at issue, which is matter for the national court to determine.

GT v Air Nostrum Líneas Aéreas del Mediterráneo, S.A. (Case C-560/19) – 23 July 2019

Questions referred:

1. Can a company which provides air passenger transport and which sells the ticket but which does not actually operate the flight be considered to come within the concept of ‘operating air carrier’?

2. If the answer to the previous question is in the negative, does the right to compensation for passengers under Article 7 ( 1) exist where the flight is composed of more than one leg and, as a result of a short delay (less than three hours) on one leg, there is a long delay (more than three hours) on arrival at the final destination because of a missed connection?

3. If the answer is in the affirmative, where the different legs are operated by different carriers, is the obligation to pay compensation under Article 7 of Regulation [(EC) No] 261/2004 incumbent on the operating carrier on whose leg there was a short delay (less than three hours) which, however, caused the missed connection and, therefore, a long delay (more than three hours) on arrival at the final destination?

Case withdrawn by airline.

2020

flightright GmbH v Iberia LAE SA Operadora Unipersonal (Case C-606/19)– 13 February 2020

A passenger on a single ticket multi-connecting itinerary with more than one operating carrier has the right to bring an 261/2004 compensation claim in the jurisdiction of the departure airport regardless if the delay occurred on the final leg.

Furthermore, where the delayed flight is the final leg, a passenger can choose to bring a claim against either the first or second operating carrier, even if they do not have a direct contractual relationship with the second operating carrier.

It was held that:

“while it does not transpire … that Iberia was the contracting partner of the passengers at issue, the rule of special jurisdiction for matters relating to a contract set out in Article 7(1) of Regulation No 1215/2012 does not require the conclusion of a contract between two persons, but the existence of a legal obligation freely consented to by one person in respect of another and on which the claimant’s action is based.

In that regard, the second sentence of Article 3(5) of Regulation No 261/2004 states that where an operating air carrier, within the meaning of Article 2(b) thereof, which has no contract with the passenger performs obligations under that regulation, it is to be regarded as doing so on behalf of the person having a contract with that passenger.”

A and Others v Finnair Oy (Case C-832/18) – 12 March 2020

A passenger offered a re-routed flight as a result of a cancellation, for which they have already received 261/2004 compensation, is still entitled to further 261/2004 compensation for a delay to the re-routing flight.

It was held that:

“ … an air passenger who, having accepted the rerouting flight offered by the air carrier following the cancellation of his flight, reaches his final destination three hours or more after the arrival time originally scheduled by that air carrier for the re-routing flight, is entitled to compensation.

Passengers who have been exposed to cancellations or long delays have suffered inconvenience both in relation to the cancellation of their initially booked flight and subsequently, as a result of the long delay of their re-routing flight. Therefore, it is in line with the objective of addressing that serious inconvenience to grant those passengers a right to compensation for each of those successive inconveniences.”

Libuše Králová v Primera Air Scandinavia A/S (Case C-215/18) – 26 March 2020

Where a passenger books their flight through a travel agency, they are entitled to bring an action for compensation for a long flight delay against the air carrier notwithstanding the absence of a contract between the passenger and carrier.

It was held that:

“[EC261/2004]…must be interpreted as meaning that a passenger on a flight which has been delayed for three hours or more may bring an action for compensation under Articles 6 and 7 of that regulation against the operating air carrier, even if that passenger and that air carrier have not entered into a contract between them and the flight in question forms part of a package tour covered by Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours.

A passenger who reserved his or her flight through a travel agency may bring an action for compensation for a long flight delay against the air carrier before the courts of the place of departure of the flight. Notwithstanding the absence of a contract between that passenger and the carrier, such an action comes within ‘matters relating to a contract’ within the meaning of the regulation on jurisdiction, with the result that it may be brought before the courts of the place of supply of the air carriage service.”

OI v Air Nostrum Lineas Aereas del Mediterraneo SA (Case C-191/19) – 30 April 2020

Where a passenger’s first reservation in a series of connecting flights is involuntarily changed such that they arrive at the connecting hub with a delay of three hours or more, but they are still able to board their second flight and reach their final destination at the arrival time originally scheduled, 261/2004 compensation is not payable.

It was held that:

“It is true, first, as is apparent from recitals 1 and 2 thereof, that Regulation No 261/2004 seeks to remedy serious trouble and inconvenience befalling passengers during air travel and, second, that a change to a flight reservation results in inconvenience for the passenger concerned. However, such inconvenience cannot be regarded as ‘serious’, within the meaning of that regulation, in the case where the passenger arrives at his or her final destination at the arrival time originally scheduled.

… Article 7 thereof, must be interpreted as meaning that compensation is not payable to a passenger who had a single reservation for connecting flights in the case where that reservation was amended against the passenger’s will, with the result that, first, the passenger did not board the first of his or her reserved flights even though that flight went ahead and, second, the passenger was given a seat on a later flight which allowed him or her to board the second of his or her reserved flights and thus to reach his or her final destination at the arrival time originally scheduled.”

D.Z. v Blue Air – Airline Management Solutions SRL (C-584/18) – 30 April 2020

In the event that a passenger is denied boarding due to allegedly inadequate travel documentation, the passenger is not automatically deprived of protection under 261/2004. If challenged by the passenger, it is for the competent authority to assess whether or not the denied boarding was reasonably justified.

LE v Transport Aéreos Portugueses SA (Case C‑74/19) – 11 June 2020

The need to change a flight schedule in order to offload an unruly passenger constitutes extraordinary circumstances under 261/2004, in the event that the unruly behaviour began after the passenger was approved for boarding and there were no warning signs which would give the airline reason to suspect that the passenger was not fit for travel.

In the event that a passenger misses their connection due to a delay or cancellation caused by extraordinary circumstances, an airline rebooking the passenger on to the next flight operated by it must constitute reasonable measures if (1) there was no possibility of a direct/indirect re-route on the same or another carrier due to arrive before the alternative flight (due to either flight schedules or lack of capacity); or (2) the proposed re-routing would amount to an intolerable sacrifice in light of the carrier’s capacity.

NM v ON (Case C-530/19) – 3 September 2020

The requirement under Article 9(1)(b) of 261/2004 for an airline to offer to a passenger hotel accommodation free of charge does not extend to any obligation for the airline to take care of the accommodation arrangements. Further, the airline is not required to compensate the passenger for damage caused by fault of the employees of said hotel.

Delfly sp. z o.o. v Smartwings Poland sp. z o. o., formerly Travel Service Polska sp. z o.o.. (C-356/19) – 3 September 2020

Passengers whose flights have been cancelled or subject to a long delay may demand payment of the compensation provided for under EU law in the national currency of their place of residence and airlines may not refuse such a claim on the basis of payment currency. The refusal to allow such a payment would be incompatible with the requirement to interpret broadly the rights of air passengers and with the principle of equal treatment of aggrieved passengers, and airlines are not obliged to pay such compensation in Euros as provided for by 261/2004

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