STURGEON V CONDOR FLUGDIENST GMBH

[2009] EUECJ C-402/07 and C-432/07 (NYR), European Court of Justice (Fourth Chamber), 19 November 2009

Carriage by air (passengers) - Delay - Concepts of flight "delay" and "cancellation" - Right to compensation in the event of delay - Concept of "extraordinary circumstances" - Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights

This was two references for a preliminary ruling under article 234 EC from the Bundesgerichtshof (Germany) and the Handelsgericht Wien (Austria). The original proceedings concerned about a claim for compensation by the claimant passengers against the defendant airlines. The passengers' arrival at the destination airport was delayed by 25 and 22 hours respectively, in relation to the scheduled arrival time. The argument of the claimants was essentially that the delay was such that the original flight had been not delayed, but cancelled. The question was therefore of the meaning of those two concepts. The ECJ held (1) in relation to the meanings of "delay" and "cancellation" that a flight which is delayed, irrespective of the duration of the delay, could not be regarded as cancelled where the flight was operated in accordance with the air carrier's original planning. By contrast, the text shown on the airport's flight departures board was irrelevant to the determination whether the flight was delayed or cancelled, and equally whether passengers retrieved their luggage or obtained new boarding cards. The composition of the passengers on the ultimate flight compared to the original group was also irrelevant. (2) The ECJ further interpreted the Regulation to mean that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in article 7 of the Regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay, however, did not entitle passengers to compensation if the air carrier could prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier. (3) Finally, a technical problem in an aircraft leading to the cancellation or delay of a flight was not covered by the concept of "extraordinary circumstances" within the meaning of article 5(3) of the Regulation unless the problem stemmed from events which were not inherent in the normal exercise of the activity of the air carrier concerned and were beyond its actual control.