Air transport. The Court of Justice provides clarifications on the meaning of flight cancellation under Regulation 261/2004

On 21 December 2021, the European Court of Justice released its judgement in Case C-395/20, EP,GM v Corendon Airlines Turistik Hava Taşımacılık A.Ş., on a preliminary ruling concerning the interpretation of articles 2(I) and 5(1) ofRegulation (EC) No 261/2004 of the European Parliament and of the Council. The request was made in proceedings before a national court in Germany between EP and GM, two anonymised air passengers (“the passengers”), and  the airline Corendon Airlines Turistik Hava Taşımacılık A.Ş. (“Corendon Airlines”), concerning the refusal of the airline to compensate the passengers for the postponement of their scheduled departure time. 

The passengers booked, as part of a package holiday, a flight with Corendon Airlines to be carried out on 18 May 2019 from Düsseldorf (Germany) to Antalya (Turkey), with the departure time scheduled at 13:20. Corendon Airlines subsequently postponed the departure time of the flight at 16:10, notifying the passengers nine days before the date of the flight. The passengers sought compensation from Corendon Airlines for the postponement of the flight, pursuant to Regulation 261/2004, before the Amtsgericht Düsseldorf (Local Court, Düsseldorf, Germany), which ultimately dismissed the action. The passengers subsequently brought an appeal against this judgement before the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany, the “referring court”). The referring court observed that, in order to rule on the dispute, it was first necessary to ascertain whether the postponement of the departure time could amount to a cancellation, within the meaning of Article 2(l) of Regulation No 261/2004, and if the notification of the postponement could constitute an offer of re-routing within the meaning of such regulation. Therefore, in light of the need to interpret the relevant European legislation, the referring court decided to stay the proceedings and to refer two questions to the Court of Justice for a preliminary ruling. 

By its first question, the referring court asked whether the postponement by the air carrier of the departure time of a flight by less than three hours, without making any other change to that flight, could be considered as a flight cancellation within the meaning of articles 2(l) and 5(1) of Regulation No 261/2004. The Court, recalling its earlier judgement in cases C-402/07 and C‑432/07 Sturgeon and Others of 19 November 2009held that, in the event of postponement of the departure time, the flight can be considered as ‘cancelled’ only if the air carrier arranges to carry the passengers on another flight whose original planning is different from that of the flight that was booked. The Court observed that this was not the case in the facts of the dispute in the main proceedings. Therefore, the Court ruled that articles 2(l) and 5(1) of Regulation No 261/2004 must be interpreted as meaning that the postponement by less than three hours of the departure of a flight, when no other changes were made to that flight, cannot be regarded as flight cancellation. 

By its second question, the referring court asked if the notification, nine days prior to the start of the trip, of the postponement of a flight by less than three hours on the same day constitutes an offer of re-routing within the meaning of article 5(1)(c)(ii) of Regulation No 261/2004.

The Court considered that there was no need to answer the second question, in consideration of the answer given to the first question.   

Andrea Palumbo