Air transport. The Court of Justice rules on the requirement to present oneself for check-in in good time

On 25 January 2024, the Court of Justice handed down its judgment in Case C‑474/22, Laudamotion GmbH v flightright GmbH, on the interpretation of of Article 3(2)(a) and Articles 5 to 7 of Regulation (EC) No 261/2004. The request has been made in proceedings between Laudamotion GmbH (“Laudamotion”), an air carrier, and flightright GmbH(“flightright”), a legal assistance company, concerning compensation claimed as a result of the long delay of a flight.

An air passenger had a confirmed reservation with Laudamotion for a flight from Düsseldorf to Palma de Mallorca, scheduled for 26 June 2018. Since he believed that the announced delay of that flight would cause him to miss a business appointment, however, that passenger decided not to board it, which arrived at the destination with a delay of 3 hours and 32 minutes. At a later time, that passenger assigned his rights to flightright, which brought proceedings before the German court having jurisdiction seeking to obtain compensation in the amount of EUR 250. 

Since flightright, following dismissal at first instance, was successful on appeal, Laudamotion brought an appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to ask to the Court of Justice whether Article 3(2)(a) of Regulation No 261/2004 is to be interpreted as meaning that, in order to be entitled to the compensation provided for in Article 5(1) and Article 7(1) of that regulation in the event of a flight delay of three hours or more after the arrival time originally scheduled by the air carrier, an air passenger must have presented himself for check-in in good time.

According to the Court, passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation laid down by Regulation No 261/2004, as those whose flights are cancelled where they suffer, on account of the delay, a loss of time equal to or in excess of three hours. A passenger who did not go to the airport on the ground that he had sufficient information to conclude that the flight would arrive at its final destination only after a long delay, therefore, has not suffered such a loss of time. Where a flight is affected by a long delay, indeed, the intention is that it will be performed and, accordingly, check-in must be carried out. Hence, passengers whose flight is delayed cannot be exempted from the obligation to present themselves for check-in.

Marco Stillo