ECJ Advocate General: Compensation for flight delays in the USA

Dec 24, 2021 Benn-Ibler Rechtsanwälte

The Advocate General at the European Court of Justice (ECJ) has issued clarifications regarding passengers' rights to compensation in the event of flight delays whose cause lies outside the EU.

In the original dispute, three passengers had booked a flight from Brussels to San José (USA) with a stopover in Newark (USA) within a single order transaction with Lufthansa. The two partial flights were operated by United Airlines (US airline). The arrival of the three passengers was delayed by over three hours due to a technical problem with the connecting flight from Newark to San José.

The air passenger rights portal (Happy Flights) demanded compensation of EUR 600 each (EUR 1800 in total) on behalf of the three passengers on the basis of the Air Passenger Rights Regulation (VO No. 261/2004).

United Airlines disputed the claim. The regulation was not applicable because the delay had occurred due to a technical problem between two American airports. In addition, the regulation violated customary international law because it had an extraterritorial scope.

However, the ECJ Advocate General did not share United Airlines' view:

Pursuant to Art 3 para 1 lit a, the regulation is applicable if a flight departs from an airport in an EU country. According to the ECJ, it is irrelevant whether a stopover takes place in the EU or in a non-EU country, as long as direct connecting flights are part of a single booking process. Equally irrelevant is the location of the delay, because this would lead to an unjustified distinction: Accordingly, United Airlines would only have to pay compensation if the disruption occurs on the first partial flight, but not on the second, even though passengers would have the same delay at their final destination in both cases.

As the operating airline, United Airlines is therefore very much obligated to pay compensation here.

With regard to the alleged unlawfulness of the regulation under international law, the Advocate General found a sufficiently close connection to an EU member state in the case of flights departing from the EU, so that the regulation does not conflict with the principle of a state's full and exclusive sovereignty over its airspace.

However, a final decision will have to be made by the Court of Justice itself.

Opinion, C-561/20 (09.12.2021)