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.