Loopholes and Pitfalls in EU Regulation 261/2004

1. Loopholes and Pitfalls in EU Regulation 261/2004 Michael Wukoschitz Austria

2. Regulation 261/2004 • establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights • repealing Regulation (ECC) 295/91 („Denied Boarding Regulation“) • to raise standard of protection • came into force 17 February 2005

4. Issues • scope of applicability • differentiation between delay and cancellation • „extraordinary circumstances“

5. Applicability(Art. 3 par. 1) • Regulation applies to passengers departing from an airport • located in the territory of a member state (a) or • located in a third country to an EU airport with Community carrier (b)

8. German Version: ... passengers commencing a flight from an airport ...

9. Decisions • AG Frankfurt/Main RRa 2006,270: the term „flight“ as in Art. 3 par. 1 doesn‘t cover a full roundtrip booked as a package but means the one-way flight only • AG Frankfurt/Main 29 C 370/07: if booked together as a package the Regulation applies to all legs of a roundtrip flight thus granting protection in case of denied boarding at a leg following a stopover at a non-EU airport • BGHS Vienna 8 C 2016/05m: if booked together outbound and return flight constitute an integrative flight

10. Reference for a preliminary ruling from OLG Frankfurt am Main (Germany) lodged on 2 April 2007 Emirates Airlines Direktion für Deutschland v Diether Schenkel(Case C-173/07) • Is Article 3(1)(a) of Regulation (EC) No 261/2004 ... to be interpreted as meaning that 'a flight' includes in any event the flight from the point of departure to the destination and back in the case where the outward and return flights are booked at the same time?

11. Definitions • CANCELLATION = the non-operation of a flight which was previously planned and on which at least one place was reserved • DELAY – no definition

12. Decisions: • LG Darmstadt 21 S 82/06: a postponement of departure can only constitute cancellation if it amounts to definite non-performance. A postponement of 25 hours can still be a delay. • BGHS Vienna 8 C 2016/05m: time is not the relevant criterion for differentiation between delay and cancellation which rather depends on circumstances like issuing of a new ticket or boarding pass, different flight number, identity of passengers, etc. • Oxford County Court, Harbord v Thomas Cook Airlines: if a flight departs 24 hours after scheduled departure from a different airport, this constitutes cancellation regardless of the same flight number being kept • AG Rüsselsheim 3 C 717/06: when differentiating between delay and cancellation, reasonability for passengers has to be taken into regard. If departure is postponed for more than 48 hours, this consitutes cancellation.

13. Reference for a preliminary ruling from Bundesgerichtshof (Germany) lodged on 17 July 2007 1) Does the interpretation of the term "cancellation" and its differentiation from "delay" basicly depend on whether the original flight planning was abandoned so that a deferment of departure regardless of its duration doesn't constitute "cancellation" as long as the airline did not abandon the planning of the original flight?2) Otherwise: under which circumstances will a deferment of departure not only constitute delay but has to be treated as cancellation? Does the answer to this question depend on the duration of the delay?

14. „Extraordinary Circumstances“ • Art. 5 par. 3: An operating air carrier shall not be obliged to pay compensation ... if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. • Recital 14: ... Such circumstances may, in particular, occur in cases of political instability, meteological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier.

15. Decisions: • AG Rüsselsheim 3 C 717/06: even if a technical defect may be unusual, it doesn‘t constitute extraordinary cirmucstances as it belongs to the air carrier‘s sphere of responsibility. • AG Köln 118 C 595/05: a technical problem can constitute extraordinary circumstances; however, the air carrier has to produce evidence that the defect was unexpected and unavoidable. A proof of regular maintenance will not suffice.

16. Opinion of Advocate General SharpstonCase C‑396/06 Kramme v SAS Scandinavian Airlines • In order to rely on Article 5(3) following the withdrawal of an aircraft from operation because of technical problems, both that withdrawal and the unavailability of a replacement aircraft must be caused by circumstances which: –  could not have been avoided even if all reasonable measures had been taken; such measures comprise, as regards the withdrawal from operation, proper and timely compliance with the schedule of maintenance and checks on the aircraft and, once signs of the technical problem appear, every reasonable step in the circumstances to resolve it without withdrawing the aircraft from operation; as regards the unavailability of a replacement aircraft, they comprise adequate provision for replacements in the light of past experience; – are extraordinary in the normal sense of the word; as regards the withdrawal from operation, such circumstances may include technical problems which are neither of a kind typically occurring from time to time on all aircraft and/or a particular aircraft type nor of a kind known to have affected the aircraft in question before; as regards the unavailability of a replacement aircraft, they comprise circumstances unforeseeable by a carrier making adequate provision for replacements in the light of past experience.