Regulation (EC) No. 261/2004: Delays, Cancellations And A New Headache For Carriers


Opinion of Advocate General, Sturgeon v Condor

Flugdienst GmbH and Böck & Lepuschitz v

Air France, 2 July 2009

Proceedings in the European Court of Justice (ECJ) have

threatened the legal validity of distinguishing between delay and

cancellation for purposes of compensation payments under Regulation

(EC) No. 261/2004, but the ultimate outcome could be far from

favourable for carriers.

Ever since EC Regulation 261/2004 on denied boarding,

cancellations and delays came into force, a key question has been

when a delay is in reality a cancellation: key because it makes the

difference between whether or not the passenger is entitled to

compensation. Now that distinction is under threat.

The Advocate General to the European Court of Justice (ECJ) has

recently published an Opinion in two joined cases referred by the

German Federal Court of Justice and the Vienna Commercial Court.

The cases requested clarification of the distinction between

"delay" and "cancellation" under Regulation

261/2004. The trouble with referring questions on the proper

interpretation of Regulation 261 to the ECJ is that one often gets

more than one bargained for. That was the case with the ECJ's

decision in late 2008 in Wallentin which has made

life extremely difficult for carriers seeking to rely on a defence

of "extraordinary circumstances" when flights are

cancelled for technical reasons, and it threatens to be the case

here too. For, as well as examining the vexed question of when a

delay becomes a cancellation, the Advocate General's approach

threatens a wholesale reopening of the regulation by questioning

the underlying logic - and hence the legal validity - of why

cancellation of a flight obliges the carrier to pay compensation to

the affected passengers but delay does not.

In both these cases heard by the ECJ, the claimants had argued

that their flights had in reality been cancelled rather than, as

the carriers argued, delayed and that they were accordingly

entitled to compensation under Article 5 of Regulation 261. The ECJ

was accordingly asked questions aimed at assisting in determining

whether a flight has been delayed or cancelled for the purposes of

the Regulation.

When is a delay a cancellation?

The Advocate General acknowledged that there are a number of

factors which might, in any particular case, indicate that a flight

has been cancelled rather than just delayed. Those include: change

of air carrier, change of aircraft, change of flight number, change


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