C-402/07 Sturgeon, Others v Condor Flugdienst GmbH; C-432/07 Böck and Lepuschitz v Air France SA (2009)
Fourth Chamber, Court of Justice of the European Union
Facts
Case C-402/07
11 The Sturgeons booked return tickets with Condor from Frankfurt am Main (Germany) to Toronto (Canada).
12 The return flight from Toronto to Frankfurt was due to depart at 16.20 on 9 July 2005. Following check-in, passengers on that flight were informed that the flight was cancelled, as was indicated on the airport departures board. Their luggage was returned to them and they were then driven to a hotel where they spent the night. The following day, the passengers were checked in at another airline’s counter for a flight with the same number as that on their booking. Condor did not schedule another flight with the same number for the day concerned. The passengers were given different seats from those they had been allocated on the previous day. The booking was not converted into a booking for a flight scheduled by another airline. The flight concerned arrived in Frankfurt at around 07.00 on 11 July 2005, some 25 hours after its scheduled arrival time.
13 The Sturgeons took the view that, in light of all the abovementioned circumstances, in particular the delay of more than 25 hours, the flight had been not delayed but cancelled.
14 The Sturgeons brought an action against Condor before the Amtsgericht Rüsselsheim (Local Court, Rüsselsheim) (Germany), claiming compensation of EUR 600 per person plus damages, since, in their view, the damage sustained was the result not of a flight delay but of a cancellation.
15 Condor contended that the action as framed should be dismissed on the ground that the flight in question was delayed and not cancelled. Prior to the proceedings before the national court, Condor claimed that the flight had been delayed as the result of a hurricane in the Caribbean but during the proceedings it attributed the delay to technical faults on the plane and illness among the crew.
16 The Amtsgericht Rüsselsheim concluded that the flight had been delayed not cancelled and, consequently, dismissed the Sturgeons’ claim for compensation. The Sturgeons appealed to the Landgericht Darmstadt (Regional Court, Darmstadt) which upheld the decision of the lower court.
17 The Sturgeons then appealed on a point of law (‘Revision’) to the Bundesgerichtshof (Federal Court of Justice).
18 Taking the view that the outcome of the appeal depended on the interpretation of Articles 2(l) and 5(1)(c) of Regulation No 261/2004, the Bundesgerichtshof decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Is it decisive for the interpretation of the term “cancellation” whether the original flight planning is abandoned, with the result that a delay, regardless of how long, does not constitute a cancellation if the air carrier does not actually abandon the planning for the original flight?
2. If Question 1 is answered in the negative: in what circumstances is a delay of the planned flight no longer to be regarded as a delay but as a cancellation? Is the answer to this question dependent on the length of the delay?’
Case C-432/07
19 Mr Böck and Ms Lepuschitz booked return tickets with Air France from Vienna (Austria) to Mexico City (Mexico) via Paris (France).
20 The Mexico City-Paris flight which Mr Böck and Ms Lepuschitz were due to take was scheduled to depart at 21.30 on 7 March 2005. When they came to check in, they were immediately informed, without the check-in taking place, that their flight was cancelled. The cancellation resulted from a change in the flight planning between Mexico City and Paris, which arose because of a technical breakdown on the aircraft due to fly from Paris to Mexico City and on account of the need to observe the rest period prescribed by law for the crew.
21 In order to get back earlier, Mr Böck and Ms Lepuschitz accepted Air France’s offer of seats on a flight operated by Continental Airlines, which was scheduled to leave the following day, 8 March 2005, at 12.20. Their tickets were first cancelled and then new tickets were issued to them at the Continental Airlines counter.
22 The other passengers on the Mexico City-Paris flight, who did not take the Continental Airlines flight, left Mexico City, with a number of additional passengers, on 8 March 2005 at 19.35. That flight, whose original number was followed by the letter ‘A’, was operated in addition to the regular flight scheduled by Air France on the same day.
23 Mr Böck and Ms Lepuschitz arrived in Vienna almost 22 hours after the scheduled arrival time.
24 Mr Böck and Ms Lepuschitz brought an action against Air France before the Bezirksgericht für Handelssachen Wien (District Commercial Court, Vienna) (Austria), claiming EUR 600 compensation per person for cancellation of their flight, on the basis of Articles 5 and 7(1)(c) of Regulation No 261/2004. That court dismissed their claim on the ground that, despite the evident flight delay, Regulation No 261/2004 did not support the conclusion that there was a flight cancellation. Mr Böck and Ms Lepuschitz appealed against that decision to the Handelsgericht Wien (Commercial Court, Vienna).
In those circumstances, the Handelsgericht Wien decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Must Article 5, read in conjunction with Articles 2(l) and 6, of Regulation … No 261/2004 …, be interpreted as meaning that a 22-hour delay in the time of departure constitutes a “delay” within the meaning of Article 6?
2. Must Article 2(l) of Regulation … No 261/2004 be interpreted as meaning that instances in which passengers are transported significantly later (22 hours later) on a flight operating under a longer flight number (original flight number supplemented by an “A”) and carrying only an – albeit large – proportion of the passengers booked on the initial flight, but also additional passengers not booked on the initial flight, constitute “cancellations” rather than “delays”?
If Question 2 is to be answered in the affirmative:
3. Must Article 5(3) of Regulation … No 261/2004 be interpreted as meaning that technical problems with a plane and the resulting changes to the flight schedule represent extraordinary circumstances (which could not have been avoided even if all reasonable measures had been taken)?’
26 By order of the President of the Court of 19 October 2007, Cases C‑402/07 and C‑432/07 were joined for the purposes of the written and oral procedure and of the judgment.
Issue(s)
How is a long delay to be treated under EU Regulation 261/2004? Does such an event become compensable as a cancellation in certain circumstances, such as those presented by the facts of these two joined cases?
Discussion
50 In this instance, the situation of passengers whose flights are delayed should be compared with that of passengers whose flights are cancelled.
51 In that connection, Regulation No 261/2004 seeks to redress damage in an immediate and standardised manner and to do so by various forms of intervention which are the subject of rules relating to denied boarding, cancellation and long flight delay (see, to that effect, IATA and ELFAA, paragraph 43).
52 Regulation No 261/2004 has, in those measures, the objective of repairing, inter alia, damage consisting, for the passengers concerned, in a loss of time which, given that it is irreversible, can be redressed only by compensation.
53 In that regard, it must be stated that that damage is suffered both by passengers whose flights are cancelled and by passengers whose flights are delayed if, prior to reaching their destinations, the latter’s journey time is longer than the time which had originally been scheduled by the air carrier.
54 Consequently, passengers whose flights have been cancelled and passengers affected by a flight delay suffer similar damage, consisting in a loss of time, and thus find themselves in comparable situations for the purposes of the application of the right to compensation laid down in Article 7 of Regulation No 261/2004.
55 More specifically, the situation of passengers whose flights are delayed is scarcely distinguishable from that of passengers whose flights are cancelled, who are re-routed in accordance with Article 5(1)(c)(iii) of Regulation No 261/2004 and who may be informed of the flight cancellation at the very last moment, when they actually arrive at the airport (see Case C‑204/08 Rehder [2009] ECR I‑0000, paragraph 19).
56 First, both categories of passengers are informed, as a rule, at the same time of the incident which will make their journey by air more difficult. Second, even if they are transported to their final destination, they reach it after the time originally scheduled and, as a consequence, they suffer a similar loss of time.
57 That said, passengers who are re-routed under Article 5(1)(c)(iii) of Regulation No 261/2004 are afforded the right to compensation laid down in Article 7 of the regulation where the carrier fails to re-route them on a flight which departs no more than one hour before the scheduled time of departure and reaches their final destination less than two hours after the scheduled time of arrival. Those passengers thus acquire a right to compensation when they suffer a loss of time equal to or in excess of three hours in relation to the duration originally planned by the air carrier.
58 If, by contrast, passengers whose flights are delayed did not acquire any right to compensation, they would be treated less favourably even though, depending on the circumstances, they suffer a similar loss of time, of three hours or more, in the course of their journey.
59 There appears, however, to be no objective ground capable of justifying such a difference in treatment.
60 Given that the damage sustained by air passengers in cases of cancellation or long delay is comparable, passengers whose flights are delayed and passengers whose flights are cancelled cannot be treated differently without the principle of equal treatment being infringed. That is a fortiori the case in view of the aim sought by Regulation No 261/2004, which is to increase protection for all air passengers.
61 In those circumstances, the Court finds that passengers whose flights are delayed may rely on the right to compensation laid down in Article 7 of Regulation No 261/2004 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.
62 That solution is, moreover, consistent with Recital 15 in the preamble to Regulation No 261/2004. As stated at paragraph 43 of this judgment, it must be held that the legislature, in that recital, also linked the notion of ‘long delay’ to the right to compensation. That notion corresponds to a delay to which the legislature attaches certain legal consequences. As Article 6 of the regulation already accepts such legal consequences in the case of certain flights which are delayed for two hours, Recital 15 necessarily covers delays of three hours or more.
Useful for
Standardised statutory delay compensation is payable under EU261
