BGH: No Compensation for Flights That Were Operated

Jun 16, 2023 Benn-Ibler Rechtsanwälte

The requirements listed in Art 4 para 3 of the Passenger Rights Regulation are not fulfilled if a passenger was actually transported on a scheduled flight. According to the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH), this also applies to passengers who were transported but charged an extra fee. It does not, however, touch on the question of whether any claims for reimbursement exist as a result of the surcharge paid.

A passenger had booked a package tour to Turkey with flights from Munich to Antalya and back which were operated by the defendant airline. However, the passenger did not take the outbound flight, as he had already flown to Turkey on an earlier date. When he wanted to take the return flight, the defendant airline charged the passenger the regular fare for the flight. The passenger eventually paid the fare and was transported. On the basis of an assigned right, he is now claiming compensation from the defendant in accordance with the Passenger Rights Regulation.

The district court ordered the defendant to pay compensation in the amount of EUR 400 as claimed. The court of appeal dismissed the action. According to the court, there was no case of denied boarding pursuant to Article 4(3) of the Passenger Rights Regulation. It was true that transport had been refused against the passenger’s will. However, the claim for compensation for non-transportation, according to its meaning and purpose, also presupposes that a passenger was not actually transported on the flight for which the refusal was made.

In the opinion of the Federal Court of Justice, the court of appeal was correct to decide that Art 4(3) of the Passenger Rights Regulation is not fulfilled if a passenger, as in the present case, was actually transported on a flight. This already follows from the missing warning according to Art 2 Letter j and Art 4 Para. 3 Passenger Rights Regulation. An interpretation of the concept of ‘denied boarding’ on the basis of the regulation is therefore not necessary. The extra fare charged did lead to a great inconvenience, but not to such inconvenience as would have been the case if the passenger had actually been denied boarding.

BGH, X ZR 25/22 (25.04.2023)