ECJ: Diversion to a nearby airport is not a cancellation

May 12, 2021 Benn-Ibler Rechtsanwälte

A passenger shall not be entitled to compensation for cancellation if his flight has been diverted and he lands at an airport which, although not the same as the destination airport provided for in the original booking, serves the same place, city or region.

In the present case, a passenger of Austrian Airlines sought a lump-sum compensation payment due to the diversion of his flight. Originally, the flight was intended to land at Berlin Tegel airport (federal Land Berlin), but ultimately arrived with delay at Berlin Schönefeld airport (federal Land Brandenburg)

Thereupon the plaintiff claimed a compensation payment amounting to 250 EUR for the cancellation of his flight within the meaning of Art. 5(1)(c) of Regulation (EC) No 261/2004 (Flight Compensation Regulation). He based his claim, on the one hand, on the delayed arrival and, on the other hand, on the failure of the air carrier to provide him onward transport from Berlin Schönefeld Airport to Berlin Tegel airport.

Austrian Airlines, for its part, requested the dismissal of the plaintiff’s claims on the grounds that the diversion did not represent a cancellation. The passenger could have also reached his residence without trouble even from Berlin Schönefeld Airport by using another means of transportation.

The ECJ stated that if the flight has been diverted, but nevertheless serves the same town, city or region, the passenger is not entitled to compensation on the basis of flight cancellation. However, the air carrier must offer to bear the cost of transport to the original airport of destination or, if necessary, to a close-by destination agreed with the passenger.

ECJ C-826/19 (22.04.2021)