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Landmark Aviation Cases Set New Standards in EU261 Interpretation

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Our team, led by Harry Snook and Özlem Yagiz, has won two ground-breaking decisions, Cases C-54/23 and C 474/22, which have significantly reshaped EU-261 claims. These cases, heard before the Court of Justice of the European Union (CJEU), have established crucial precedents for airlines across Europe, and for non-European airlines flying from Europe and the UK.

Both cases concerned compensation for long flight delays. Since the CJEU’s decision in C-402/07 Sturgeon v Condor, the law has been clear that a passenger who travels on a flight which arrives at its destination with a delay of three hours or more qualifies for the same fixed compensation as those passengers whose flights are cancelled. But what if the passenger, knowing about the delay, chooses not to take the flight after all?

Case C-54/23: Self-Re-Routing and the Three Hour Test

In this case, a passenger, faced with a six-hour delay to their flight, decided not to take that flight, and instead took matters into his own hands by re-routing through another airline. This resulted in his arriving at his destination less than three hours after the scheduled time of arrival of his original flight. Oracle successfully defended the airline in the German trial court, which held that the passenger had not meet the Sturgeon v Condor criterion of having suffered a three-hour loss of time on arrival.

The matter reached the German Federal Court of Justice (BGH), which subsequently referred it to the CJEU. The central question was whether the passenger’s successful self-re-routing negated the right to compensation that he would have had if he had travelled on the delayed flight. The CJEU upheld Oracle’s arguments, confirming that the trigger for compensation is the actual loss of time suffered by the individual passenger as a result of the delayed flight, not just the flight delay itself.

Case C 474/22: Is Checking In Always Necessary in a Delay Case?

In this case, the passenger opted not to take his flight after finding out that it was delayed, since he would have missed the business meeting which had been the reason for his travel. Oracle successfully defended the airline at trial in the German courts, which held that the passenger was not in scope of the Regulation as he had failed to check in for his flight as required by Article 3(2)(a). The passenger appealed to the BGH, which referred the question to the CJEU. Since passengers whose flights are cancelled are not required by the Regulation to check in, should this same exemption extend to passengers on delayed flights, especially if the delay is itself the reason for their not having done so?

Again, the CJEU upheld the arguments that Oracle had used at trial, finding that the requirement to check in cannot be waived for passengers in this position. Going further, the court found that passengers who have checked in online must also attend the airport and present themselves to a representative of the operating air carrier.

What does this mean for claims?

The judgments are a win for EU airlines, and for non-EU airlines flying from the EU. Passengers who don’t check in, or who don’t come to the airport after checking in online, will no longer be able to claim compensation on the basis that their flight was delayed by three hours or more, even if that delay was the very reason for their change of plans.

Although the judgment is not legally binding in the UK, it is still likely to be followed. As such, UK-based airlines, and non-UK airlines flying from the UK, and subject to the UK’s domestic version of EU261, will also benefit from Oracle’s successes.

We go the extra mile for our clients and ensure that precedent is set, so that future spurious claims can be avoided. If you would like to know more about our aviation claims teams or other aviation legal services then contact us on [email protected].

Download the CJEU press release


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