Regulation (EC) No. 261/2004: Delays, Cancellations And A New Headache For Carriers
Opinion of Advocate General, Sturgeon v Condor
Flugdienst GmbH and Böck & Lepuschitz v
Air France, 2 July 2009
Proceedings in the European Court of Justice (ECJ) have
threatened the legal validity of distinguishing between delay and
cancellation for purposes of compensation payments under Regulation
(EC) No. 261/2004, but the ultimate outcome could be far from
favourable for carriers.
Ever since EC Regulation 261/2004 on denied boarding,
cancellations and delays came into force, a key question has been
when a delay is in reality a cancellation: key because it makes the
difference between whether or not the passenger is entitled to
compensation. Now that distinction is under threat.
The Advocate General to the European Court of Justice (ECJ) has
recently published an Opinion in two joined cases referred by the
German Federal Court of Justice and the Vienna Commercial Court.
The cases requested clarification of the distinction between
"delay" and "cancellation" under Regulation
261/2004. The trouble with referring questions on the proper
interpretation of Regulation 261 to the ECJ is that one often gets
more than one bargained for. That was the case with the ECJ's
decision in late 2008 in Wallentin which has made
life extremely difficult for carriers seeking to rely on a defence
of "extraordinary circumstances" when flights are
cancelled for technical reasons, and it threatens to be the case
here too. For, as well as examining the vexed question of when a
delay becomes a cancellation, the Advocate General's approach
threatens a wholesale reopening of the regulation by questioning
the underlying logic - and hence the legal validity - of why
cancellation of a flight obliges the carrier to pay compensation to
the affected passengers but delay does not.
In both these cases heard by the ECJ, the claimants had argued
that their flights had in reality been cancelled rather than, as
the carriers argued, delayed and that they were accordingly
entitled to compensation under Article 5 of Regulation 261. The ECJ
was accordingly asked questions aimed at assisting in determining
whether a flight has been delayed or cancelled for the purposes of
the Regulation.
When is a delay a cancellation?
The Advocate General acknowledged that there are a number of
factors which might, in any particular case, indicate that a flight
has been cancelled rather than just delayed. Those include: change
of air carrier, change of aircraft, change of flight number, change
of...
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