The passenger had a confirmed reservation with the claimant air carrier for a flight from Düsseldorf, Germany to Palma de Mallorca, Spain. Prior to the scheduled departure time, the airline announced that the flight was delayed. Believing that such a delay would cause him to miss a business appointment, the passenger decided not to take that flight and, accordingly, did not present himself at check-in. The scheduled flight subsequently arrived at the destination three and a half hours late. In order to bring a claim before the German courts for compensation under article 7(1)(a) of Parliament and Council Regulation (EC) No 261/2004, the passenger assigned his rights to the defendant legal assistance company. Passengers whose flights were delayed had a right to compensation on condition, under article 3(2)(a), that they had a confirmed reservation and that they had presented themselves for check-in in good time. However, the latter condition did not apply to a claim based on the cancellation of a flight under article 5. The passenger’s claim was dismissed at first instance, but allowed by the appeal court, which relied on case law of the Court of Justice of the European Union that treated a long delay in arrival (ie three hours or more) as equivalent to the cancellation of a flight. On the air carrier’s appeal, the German Federal Court of Justice was of the view, however, that that case law suggested that the passenger had to have presented himself for check-in, even if he did not board the flight. In those circumstances, the German court stayed the proceedings and referred to the Court of Justice for a preliminary ruling the question, in essence, whether article 3(2)(a) of Regulation No 261/2004 meant that, in order to be entitled to the compensation provided for in articles 5(1) and 7(1) in the event of a flight delay of three hours or more after the scheduled arrival time, a passenger must have presented themselves for check-in in good time.
On the reference—
Held, the crucial factor in the principle that a long delay of the arrival of a flight was treated as equivalent to the cancellation of a flight, was that the passengers had suffered damage in the form of an irreversible loss of time equal to, or in excess of, three hours which could be redressed only by compensation. However, a passenger who did not go to the airport because they had information that the flight would arrive at its final destination after a long delay, had not, in all likelihood, suffered such a loss of time. A loss of time was not damage arising as a result of a delay, but was an inconvenience. There was an intention that a delayed flight would, eventually, go ahead, in contrast with a cancelled flight. It followed that passengers whose flight was delayed still had to present themselves for check-in. In any event, damage caused by the fact that a passenger had missed a business appointment was individual damage, specific to that particular passenger, that could not be compensated by an award under article 7, which provided standardised and immediate compensation for damage that was almost identical for every passenger concerned. Accordingly, article 3(2)(a) of Regulation No 261/2004 meant that, in order to be entitled to the compensation provided for in articles 5(1) and 7(1) in the event of a delay of three hours or more in the arrival time scheduled for a flight, an air passenger must have presented themselves for check-in in good time or, if they had already checked in online, must have presented themselves at the airport in good time to a representative of the operating airline (judgment, paras 25–27, 29–31, 32, 34, operative part, para 1).
M Michel and R Weist for the defendant company.
J Möller, P Busche, J Heitz and M Hellmann, agents, for the German Government.
G Braun, K Simonsson, G Wilms and N Yerrell, agents, for the European Commission.