Recent developments in European Consumer Law: Re-routing: good or bad option?
Consumer Law

Recent developments in European Consumer Law: Re-routing: good or bad option?

Recent developments in European Consumer Law: Re-routing: good or bad option?

Most of us are still pretty much grounded and flights are few and far between, but as the travel sector is starting to slowly pick up passengers again, it may be worth it to look at the newest judgment on Regulation 261/2004. On 22 April the CJEU issued a judgment in the case Austrian Airlines (C-826/19). In this Austrian case the passenger claimed compensation due to the re-routing of their flight from Berlin Tegel airport to Berlin Schönefeld airport by the air carrier. This was caused by the poor weather conditions delaying the arrival of the aircraft in Vienna, with a later take off towards Berlin than scheduled, which would lead to the plane arriving at Tegel after the airport was closed for the night already. Generally, we would expect most passengers appreciating re-routing to a nearby airport, as this should avoid flight’s cancellation or even really long delays. However, issues may arise, as we could see on the example of this case.


This case is unusual for four reasons set out below.


1) The delay in arrival at the Berlin airport (although the wrong one) was only 58 minutes from the scheduled arrival time.


The referring national court had doubts whether the flight Vienna-Berlin Tegel should be considered to be delayed or cancelled. If it was to be considered as delayed: Should the delay be calculated at the moment of landing at the alternate airport or rather when the passenger reaches the originally scheduled destination airport, or another agreed, pursuant to Article 8(3) Reg 261/2004 place?

The CJEU looks back to the judgment in the case Sousa Rodriguez (we commented on it back in 2011: More Compensation to Air Passengers…) and reminds that it is insufficient for a flight to take off according to the scheduled route, for it to be considered to be performed and not cancelled. No, the flight also needs to complete that scheduled route for this determination to be made (para 35). Consequently, if a plane is re-routed to a different airport, it cannot be considered to be performed according to the original schedule, and therefore, the original flight should generally be treated as cancelled (para 36). However, if that alternate airport is serving the same city or region, then such a determination would be contrary to the purposes of Regulation 261/2004, as it aims not only to protect passengers but also to minimise the amount of cancelled flights (paras 37-38). Therefore, air carriers should not be discouraged from re-arranging the passengers’ flights to a nearby airport, if they then also cover costs of transportation to the original destination airport, pursuant Article 8(3) Reg 261/2004 (para 40). Passengers of such flights may then not claim compensation for their flights having been cancelled. That being said, if the delay in reaching the original destination airport is longer than 3 hours, then the passenger should be entitled to compensation. The CJEU then confirms that the delay should be calculated not at the moment the passengers reach the alternate airport, but rather, when they arrive either at the airport of their original destination or at another agreed with the air carrier place – when they used the alternate means of transportation to do so (para 48).


2) Poor weather conditions are usually perceived as an extraordinary circumstance releasing the air carrier from their compensation obligations pursuant to Regulation 261/2004. 


As the poor weather conditions took place during the preceding flights of the aircraft scheduled to travel from Vienna-Berlin Tegel, the question was whether the air carrier could invoke them as an extraordinary circumstance for subsequently delayed flights of the same aircraft.

This question was previously answered by the CJEU in the TAP case (see our comment: Deja Vu: Creative interpretation…), where the Court noted that provisions of Regulation 261/2004 should allow to account for an event to constitute an extraordinary circumstance not only for the flight directly affected by it, but also for the subsequent flights, for which a given aircraft was scheduled (paras 53-54). However, it is for the national court to determine whether there was a direct causal link between the extraordinary circumstance impacting one flight, and the subsequent delay or cancellation of another flight. The schedule of the aircraft should be taken into consideration in this assessment (para 56).


3) The passenger claimed that the air carrier was obligated to offer them free means of transportation between Schönefeld and Tegel airports, although the passenger lived only 24km away form Schönefeld airport. 


Here the doubts were whether re-routing took place as described in Article 8(3) Regulation 261/2004, which provision is applicable when a city is served by several airports. Doubts arose whether this provision is applicable as technically speaking Berlin Schönefeld airport is not located within the city borders of Berlin (para 19). CJEU draws attention to the fact that the Regulation does not define the notions used in this provision, thus they should be interpreted in a harmonious manner on the EU level. Therefore, it is irrelevant that national administrative rules might have placed the two airports in different regions. As long as the location of the airports is in the close vicinity to the same city, they are both serving the same city (paras 23-24). Such an interpretation allows the fulfilment of the objectives of the Regulation (assuring a high level of protection of passengers), as well as protects the interests of air carriers, as the determination of when an airport is serving a particular city or region does not depend on national administrative regulations (paras 27-29).


Another question asked whether the passenger should have been the one to request transportation to the original destination airport or another place, or whether the air carrier should have been the one to offer such an option.

Article 8(3) of Regulation 261/2004 obliges air carriers to cover the costs of the transport of passengers to the original destination airport or to another agreed place. This provision does not place an express obligation on the air carriers to actively, of their own initiative offer transportation to such locations, however, the Court interprets it broadly and reads such an obligation from this provision, following the protective aims of the Regulation (paras 60-63). Such an interpretation is supposed to balance interests of both passengers and air carriers. Passengers will be spared inconvenience of having to arrange for alternate means of transportation to the original destination airport and the air carriers will be able to avoid having to pay compensation by ensuring that passengers reach that original destination airport with the delay shorter than 3 hours (para 65).

4) The passenger claimed compensation from Regulation 261/2004 as a result of the air carrier breaching its obligations of care and assistance from Article 8(3) Regulation.


The CJEU looks back again at the Sousa Rodriguez case, in which the Court confirmed the right of passengers of cancelled and re-routed flights to claim damages (para 69). However, such damages should compensate specific costs that the passenger had to cover as a result of the air carrier not providing them with necessary care and assistance (para 70). These costs had to have been appropriate, reasonable and necessary. Consequently, a passenger may not claim compensation from Regulation 261/2004 to cover such damages, as its amount is determined in an objective way, unrelated to specific damages of each passenger (paras 71-72).

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