Euopean briefing | European Commission act to clarify stance on cancelled and delayed flights

The EU regulations providing for compensation for passengers whose flights are delayed or cancelled have proved a surprisingly fertile, and controversial, source of work for the European Court of Justice (ECJ).<br/>Readers of this column may recall that the ECJ first ruled in Case C-402/07 and C-432/07 Sturgeon [2009] ECR I-10923 that Regulation 261/2004 gave passengers rights to compensation not only for cancelled flights, but for delays of more than three hours.

That decision was, to say the least, difficult to square with the wording of the regulation, and last year the ECJ was, in effect, asked to reconsider its ruling. But it rejected the criticisms, confirming its bold, consumer-oriented, interpretation in Cases C-581/10 and C-629/10 Nelson (23 October 2012).

In Case C-11/11 Air France (Grand Chamber, 26 February 2011) the ECJ has returned to the regulations. Mrs Folkerts was to fly from Bremen to Asuncin, via Paris and So Paolo. Her first flight left two and a half hours late. That meant that she missed her So Paolo connection. She was rebooked onto a later flight, but that meant a late arrival in So Paolo  and another missed connection. She finally arrived at Asuncin 11 hours late.

The difficulty that this depressingly familiar story posed was this: under Sturgeon the monetary compensation of 600 for long delay depends on whether the passenger reaches her destination more than three hours after the scheduled time. On that basis, treating Mrs Folkerts final destination as Asuncin, she had a valid claim. But was that the right way of looking at things? Or should one be looking, on a multi-stage trip, at the delay in reaching the scheduled destination of the flight that was delayed, in which case, since she arrived in Paris within three hours of the scheduled time, she had no claim? The ECJ held that the relevant destination for these purposes was, in the case of directly connecting flights, the destination of the last flight. So, in Mrs Folkerts case, the relevant delay was the delay in her arrival at Asuncin, and she was entitled to compensation.

Drawing a distinction

That raised a fresh question, however. For under article 6 of the regulation, a passenger is only entitled to assistance in the case of delay where the departure is delayed for a certain period. That period depends on the particular flight, but for very long flights it is only delays of more than four hours which trigger the obligation to provide assistance. If the relevant destination was the final destination, then since Mrs Folkerts flight had only been delayed in its departure for just over two hours, did she qualify for any compensation?

The ECJ held that this was an irrelevant question. It drew a distinction between the right to assistance provided in the case of delayed departure, under article 6, and the right to compensation that the ECJ has found is inherent in article 7, which on its face applies to cancellation, but which has been extended by the bold interpretation in Sturgeon to include also delayed arrival. Simply put, the ECJ held that these are two quite separate rights, and that the right to compensation under article 7 depends purely and simply on whether arrival at the final destination is delayed by more than three hours. Delay in departure does not matter.

That means that a passenger in Mrs Folkerts position is entitled to be compensated because the knock-on consequences of the delay in departure of the first leg of her flight meant that she arrived more than three hours late.

The European Commission presented statistical data to the ECJ in which it pointed out that this ruling might have quite serious consequences for airlines. Many people take interconnecting flights, and it is quite common for a shortish delay in one leg to produce knock-on consequences later. Is it fair for the airlines to pay for that? Might one not say that a passenger who chooses to book a ticket with tight connections takes the risk that a short delay at an early stage will cause trouble later?

So what

The ECJ was not interested in such arguments. It pointed to various mitigating factors for the airlines, including their right to avoid paying compensation if the delay is due to circumstances entirely beyond their control (a defence, however, that is rather hard to prove). But in the end, the ECJs basic response was, so what?: the importance of consumer protection may justify even substantial negative economic consequences for certain economic operators.

The current position, then, is favourable to consumers: if a delay (however short) in one leg of a journey means that arrival at the final destination is delayed by more than three hours, there is a right to compensation. This may, however, change. The commission has just published proposals for revision of the regulations. Although these would confirm the ECJs judicially-created right to compensation for delay, it would increase the period before compensation could be claimed to five hours for intra-EU and short international flights, nine hours for flights of 3,500 to 6,000 km, and 12 hours for flights of more than 6,000 km.

Basically, the commission feels that the ECJs three-hour threshold is unreasonably short, and proposes to redress the balance in favour of the airlines. If those proposals are adopted, then although the consumers rights to compensation will be confirmed, the content of those rights will be quite significantly curtailed.

Mrs Folkerts, for instance, who had embarked on a journey of nearly 11,000 km, would seemingly just fail to be entitled to compensation under the proposed revisions.