DE: ECJ Decision – Do Late Flight Arrivals Constitute Cancellation?

Aug 26, 2022 Benn-Ibler Rechtsanwälte

The Court of Justice of the European Union (ECJ) must currently decide by way of preliminary ruling to what extent compensation under the EU Passenger Rights Regulation requires a passenger’s appearance at check-in in cases where passengers know that the flight will be delayed at its destination for more than three hours.

The question to be decided by the ECJ is whether the right to compensation for a delay of more than three hours after a flight’s scheduled arrival time at destination requires passengers to be present at check-in no later than 45 minutes before the publicised departure time, or does a long delay, analogous to flight cancellation, provide exemption from this requirement?

In the case at hand, a passenger had booked a flight from Duesseldorf, Germany, to Palma de Mallorca. He was informed in advance that the flight would be significantly delayed at arrival. He therefore decided not to take the flight at all. In the end, the flight was three and a half hours late. The passenger demanded compensation under the EU Air Passenger Rights Regulation. The competent regional court stated that, according to the rulings of the European Court of Justice, a significant delay in arrival is equivalent to a cancellation and that the requirement for compensation in the event of a delay, i.e. a passenger’s actual appearance at check-in, therefore does not apply. Consequently, the German Federal Court of Justice (BGH) brought the matter before the European Court of Justice (ECJ).

The German Federal Court of Justice (BGH) stated that long flight-delays and cancellations are similar to some extent, but also indicated that there are some basic differences. In the case of a cancellation, the passengers’ appearance at check-in is indisputably unreasonable. A long delay at the flight’s destination may, under certain circumstances, only become evident shortly before the scheduled departure of the flight. A solution ought to be based on the timeliness of information. If passengers are sufficiently informed at least 45 minutes ahead of the flight’s publicized departure time that the flight can only be operated with a delayed arrival at the destination of over three hours, passengers are not required to appear for check-in. If, on the other hand, a delay at the flight’s destination is not foreseeable, then this is not equivalent to flight cancellation.

BGH, X ZR 122/21 (03.05.2022)