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26 November 2014
On September 25 2014 the Hamburg Local Court dismissed a claim by passengers pursuant to EU Regulation 261/2004 (8b C 115/14) where the passengers had missed a connecting flight outside the European Union because the feeder flight from Germany to the airline's hub outside the European Union was delayed.
In light of the European Court of Justice's decision in Folkerts (February 26 2013, C-11/11) and the decision of the German Federal Court of Justice (May 7 2013, X ZR 127/11), the German courts have repeatedly decided this type of case against non-EU carriers.
The claimants have appealed the decision.
Pursuant to EU Regulation 261/2004, the claimants claimed €1,200 in relation to the flight delay with the non-EU defendant airline. As a result of the delay, the passengers missed their connecting flight to another destination outside the European Union and thus arrived at their final destination with over six hours delay.
The judge considered the Hamburg Local Court to have jurisdiction to hear the claim. However, the court held that the claim was ill-founded.
According to the court, the regulation was applicable to the flight from Germany to the defendant airline's hub outside the European Union. However, this flight was delayed by only 39 minutes, so the claimants had no compensation claim against the defendant airline.
The court further stated that the regulation did not apply to the flight from the defendant airline's hub to the claimants' final destination outside the European Union. In this context, the court pointed out that this flight must be considered an individual flight pursuant to the regulation. According to Federal Court of Justice case law, the term 'flight', within the meaning of the regulation, is the air transportation operation with which an airline transports all passengers of this operation from the departure airport to the destination airport on a route offered by the airline and available for booking.
However, pursuant to Article 3(1)(a) of the regulation, the flight from the defendant airline's hub outside the European Union to the final destination outside the European Union was not operated from an airport within an EU member state, nor was the defendant airline a community carrier within the meaning of Article 3(1)(b) or Article 3(1)(c).
A different legal analysis does not result from the fact that the flight outside the European Union was a direct connecting flight and that the final destination was a place outside the European Union. In this regard, the court emphasised that it had not misinterpreted the Federal Court of Justice decision. The court held that:
"for the determination of the question, whether the delay has reached the necessary scope for compensation payments and in what amount the compensation has to be paid, not the destination of the individual flight is relevant, but the last destination or (equivalent) final destination (Art. 2 lit. h of the regulation) at which the passenger arrived as a result of the delay later than the scheduled arrival time."
The regulation takes into account the fact that cancellation or flight delay can prejudice passengers to varying degrees, depending on how it affects arrival time at the final destination (Federal Court of Justice, X ZR 127/11, Paragraph 11).
In this regard, the court pointed out that the facts of the case decided by the Federal Court of Justice (X ZR 127/11) could not be compared directly to the case in question. This is because in this case a community carrier carried out both flights, with the result that the regulation was applicable to both flights. However, the operating carrier was not a community carrier, so the regulation was not applicable to the second flight. Therefore, the claimants' final destination outside the European Union cannot be considered when determining the last or final destination within the meaning of Article 2(h) of the regulation, but only the last destination which falls under the scope of the regulation (the court suggested in this regard that this could be described as the "final destination within the meaning of the regulation"). In this case, it was the non-EU carrier's hub outside the European Union.
In line with this, the Federal Court held in its May 7 2013 decision obiter dicter:
"On the contrary a disruption, which occurs on the connecting flight only, to which the regulation is not applicable, cannot even justify a compensation claim if it leads to the final destination being reached with a significant delay (German Federal Court of Justice, judgment of 7 May 2013 Ref. X ZR 127/11, juris para. 13)."
The court went on to state that the purpose of the regulation to provide a large degree of consumer protection was not called into question by this interpretation. This is because the regulation contains explicit provisions regarding the question of how far the scope of the regulation extends internationally and extraterritorially. A consistent interpretation of these provisions renders the limits more precisely, without thwarting the consumer protection thought behind the regulation. The court stated that it makes no sense to treat cases in which a community carrier operates both flights differently from those in which the operating carrier for both flights is not a community carrier. This legislative decision, which results clearly from the regulation, must be respected by the court. An interpretation over and above the wording of the regulation would strengthen consumer protection, but would simultaneously time endanger legal certainty to an unacceptable degree.
The court thus held that the question of whether the flight from Germany to the non-EU hub was the reason why the claimants missed the connecting flight from the hub to the final destination outside the European Union was irrelevant.
This clear victory for the airline industry is one which has been worked towards since the 'final destination' issue began to trouble non-community carrier clients' day-to-day business.
The claimants have logged an appeal with the Hamburg Regional Court. However, another positive decision from a different judge at the Hamburg Local Court is expected shortly.
For further information on this topic please contact Katherina Sarah Bressler or Ulrich Steppler at Arnecke Siebold Rechtsanwälte by telephone (+49 69 97 98 85 0), fax (+49 69 97 98 85 85) or email (email@example.com or firstname.lastname@example.org). The Arnecke Siebold Rechtsanwälte website can be accessed at www.arneckesiebold.de.
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Katharina Sarah Bressler