European briefing | The ECJ's contradictory stance on cancelled and delayed flights

'Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers.' So reads the second recital to Regulation 261/2004. The regulation goes on to give EU air passengers various rights if their flights are cancelled or delayed. The rights appear to be different ?depending on whether a flight is cancelled or delayed. Where it is cancelled, there is a right to compensation (articles 5 and 7). Where it is delayed, there is a right to assistance (articals 6 and 9). In cases of very long delay, the passenger may be entitled to a refund if the delay means that the journey is abandoned because it is no longer worth making (article 8). There is no express right to compensation, however, where flights are delayed.

This seems neat and tidy. But how, in practice, does one distinguish between 'cancellation' and 'delay'? You arrive at the airport. You are told that there is a problem, flight ZZ1 cannot depart today. The usual thrill of buses, vouchers, airport hotels ensues. Next day, flight ZZ1 departs. But is this delayed flight ZZ1, or is it a replacement for cancelled flight ZZ1? ?How does one decide, of something as abstract as a 'flight' whether a particular aircraft movement is that flight (later) or another flight?

Sting in the tail

In Joined Cases C-402/07 and C-432/07 Sturgeon [2009] ECR I-10923 the ECJ said that the answer to this question depended on the facts. If the later flight had been independently planned (for instance, if passengers from Monday's ZZ1 are put on Tuesday's scheduled ZZ1, along with the passengers who were booked on that flight) then there is a cancellation. If, however, the flight on which passengers depart is the 'revised version' of the originally planned flight then, however long the delay may have been, there is no cancellation.

This should have been pretty satisfactory for the airlines. But Sturgeon had a sting in its tail. For having defined 'cancellation', the ECJ made the definition largely irrelevant, by holding that even delayed passengers are entitled to compensation. From the passenger's point of view, what difference does it make whether, having spent Monday night in a hotel at the airport, I depart the next day on a different flight or on the 'original' flight? I arrive no earlier. I experience no more and no less inconvenience.
To treat passengers who suffer a long delay (but eventually leave on the 'same flight') differently from those who suffer the same delay (but eventually leave on a 'different flight') would, the ECJ thought, have infringed the principle of 'equal treatment'. Guided by this, it detected in the regulation a right to compensation where flights are delayed by three hours or more.

This was a very bold and controversial move, not just because of its financial consequences for airlines, but because of difficulties with its juristic logic.
It was not an implication that went with the grain of the legislation. Quite the contrary. The legislation seemed to distinguish rather carefully between delay and cancellation. It could easily have provided a right to comp-ensation for long delay. But it had not done so. It seemed highly questionable whether the equal treatment principle could legitimately be used to rewrite the legislation in order to confer a right that fairly clearly had not in fact been intended.

Montreal challenge

So, in Joined Cases C-581/10 and C-629/10 Nelson (Grand Chamber, 23 October 2012) the airlines tried to persuade the ECJ that Sturgeon was wrong. But the ECJ was having none of it. The Sturgeon reasoning was repeated and and confirmed. As a matter of what is described as interpretation, regulation 261/2004 confers a right to compensation to passengers whose arrival is delayed by three hours or more.

The airlines were ready for this, and responded with a counter-attack. If that was the meaning of the regulation, they said, then the relevant provisions were invalid, because they were contrary to the Montreal Convention, disproportionate, and infringed the principle of legal certainty (since they conjured an obligation to pay compensation out of provisions which did not make that right clear by an unpredictable form of 'interpretation').

All these complaints were rejected. The rejection of the proportionality and legal certainty challenges was predictable. It was hardly likely that, if the ECJ was willing to endorse its Sturgeon as an exercise in legitimate interpretation, it was then going to hold the result unlawful. The Montreal Convention challenge was a closer call. The Convention deals with delay. It contains rules for the circumstances in which a passenger can be compensated for 'damage occasioned by delay'. Those rules include the rule that 'non-compensatory damages' is not available.
The fixed compensation laid down by the regulation is arguably non-compensatory damages. But the ECJ found virtue in this alleged vice. Precisely because, it said, the legislation did not seek to compensate for damages occasioned by delay, but for the inconvenience of the delay itself, it fell outside the Convention's rules altogether.

Any air traveller will view the decision with mixed feelings. It might seem a victory for consumers. But the legal logic of the decision is tortured and questionable, and the practical effect of the decision is to make air carriers provide compulsory travel insurance at a price which, one may assume, will be reflected in the fare. Although the law is now quite clear, it is doubtful whether it is really satisfactory.