Recent developments in European Consumer Law: The long arm of Regulation 261/2004
On October 6 also AG Saugmandsgaard Øe issued his opinion in another case pertaining to the interpretation of the provisions of Regulation 261/2004 on air passenger rights – Airhelp (C-451/20). We have previously commented on other cases concerning connecting flights, covered by one reservation, as often a question arises of the applicability of Regulation 261/2004 to these flights. The previous judgments concerned however connected flights were at least one of them took place outside the EU. Here, the passenger booked a flight with Austrian Airlines from Moldavia to their final destination in Thailand via Vienna. Thus, the operating air carrier was a Community carrier and each of the two flights within the reservation either arrived at or departed from a European airport. The original port of departure and the final destination were, however, outside the EU. Should Regulation 261/2004 apply?
AG Saugmandsgaard Øe believes – yes. He uses the literal interpretation of Article 3(1) Regulation 261/2004 to note that there is no limitation in the wording of this provision, which would demand looking for a European connection only with the first point of departure and final point of destination if connected flights were involved (para 30). Importantly, he also indicates that a different method of interpretation would expose some passengers to unequal different, as whether they would be entitled to the protection of Regulation 261/2004 could depend on whether their flight was a single flight or bought together with other flights (para 34). AG Saugmandsgaard Øe looks into the past case law, as well, drawing a paralell to the need to assure a high level of air passengers’ protection, which requires a broad interpretation of the provisions of Regulation 261/2004. Thus if in the previous cases the Regulation was found to be applicable even if one of the connecting flights would, on its own, not be covered by it, it should then also apply if the connecting flights, separately, would have been covered by it, but if they were assessed as a one unit, the Regulation would not be applied (para 51).
Generally, this reasoning is appealing as it indeed satisfies the purpose that the Regulation 261/2004 aims to achieve and again looks to protecting passengers against different treatment in comparable conditions (which seems to be the ratio behind many judgments in this area). It does further extend the obligations of the operating air carriers, however.
The second question posed is less controversial, as it asked whether operating air carriers are liable pursuant to Regulation 261/2004 to pay out compensation for a delay of a flight that was arranged as an alternative travel arrangement, to relief them from that compensatory duty – pursuant to Article 5(1)(c)(iii) Regulation 261/2004. As that provision requires that the alternative flight reaches the final destination within 2 hours from the originally planned arrival time, a delay in meeting this timeframe leads to the air carrier not complying with this whole provision – and therefore, the need to pay compensation to the inconvenienced air passengers (para 70).