Air transport. Advocate General Pikamäe rules on compensation to passengers in the event of postponement

On 23 September 2021, Advocate General Pikamäe held its judgment in Case C‑395/20, EP and GM v Corendon Airlines Turistik Hava Tasimacilik A.Ş., on the interpretation of Articles 2(l), 5(1) and 8(1) of Regulation (EC) No 261/2004. The request has been made in proceedings between EP and GM (the passangers) and Corendon Airlines Turistik Hava Taşımacılık A.Ş. (‘Corendon Airlines’) concerning the latter’s refusal to compensate those passengers when the scheduled departure time of their flight was postponed.

In 2019, the passengers EP and GM purchased a package holiday to Antalya (Turkey) with a flight scheduled at 13.20, which Corendon Airlines later postponed at 16.10 of the same day, change of which it informed the passengers within the time limit laid down in Article 5(1)(c)(ii) of Regulation No 261/2004. Since that flight was delayed, departing therefore at 17.02 of the same day, and after Corendon Airlines refused to pay compensation in the sum of EUR 400 each, the passengers brought an action before the Amtsgericht Düsseldorf (District Court, Düsseldorf, Germany), which dismissed the action on the ground that, although the departure time of the flight had been changed, the original planning of the flight was not abandoned and that the passengers were notified of the change in departure time within the time-limit laid down in Article 5(1)(c)(ii) of Regulation No 261/2004. Against that judgement, the passengers appealed the Landgericht Düsseldorf (Regional Court, Düsseldorf), which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to ask the Court of Justice two preliminary questions.

By the first question, the referring court asked whether a flight is cancelled within the meaning of Articles 2(l) and 5(1) of Regulation No 261/2004 where the operating air carrier postpones a flight booked as part of a package holiday and scheduled to depart at 13.20 until 16.10 on the same day. According to the Advocate General, cancelled flights and delayed flights constitute, within the meaning of Regulation No 261/2004, two quite distinct categories of flights. It cannot be inferred from that regulation that a flight which is delayed may be classified as a cancelled flight merely on the ground that the delay is extended, even substantially. Furthermore, the cancellation of a flight is characterised by a direct and intentional action of the air carrier to change the planning, whereas in the case of a delayed flight, the departure time is neither planned nor always influenced by air carrier. In fact, postponing a flight while maintaining the same aircraft and itinerary constitutes, according to common sense, a delay and not a cancellation. The Advocate General therefore concluded that a flight which is delayed, irrespective of the duration of the delay, cannot be regarded as cancelled where there is a departure in accordance with the original planning.By the second question, the referring court asked whether the notification nine days prior to the start of the trip of the postponement of a flight constitutes an offer of re-routing within the meaning of Article 5(1)(c)(ii) of Regulation No 261/2004. Having found that the postponement announced nine days in advance cannot, in itself, play a role in determining whether the postponement should be classified as a cancellation or a delay, and having considered the postponement of about three hours as minor one, the Advocate General concluded that is unnecessary to rule on this question.

Esmeralda Dedej