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20 February 2013
On January 3 2013 the Federal Court of Justice published its reasoning in the Cases X ZR 12/12 and X ZR 14/12 of November 13 2012. The court held that passengers were not entitled to compensation under EU Regulation 261/2004 if the delay occurred on a connecting flight departing outside EU territory.
In the first case, the plaintiffs booked flights with a non-European airline from Frankfurt, Germany to Belem, Brazil via Sao Paulo. The flight from Frankfurt to Sao Paulo was operated as scheduled. The connecting flight was not operated as a non-stop flight - contrary to the scheduled route - but had a stopover in Fortaleza. The plaintiffs arrived in Belem with a delay of eight and a half hours.
In the second case, the plaintiffs booked flights with a non-European air carrier from Frankfurt to Bangkok, Thailand via Muscat, Oman. While the flight from Frankfurt to Muscat was operated as scheduled, the connecting flight from Muscat landed in Bangkok with a delay of approximately eight hours.
The underlying scenarios are similar and the plaintiffs argued in both cases that they were entitled to compensation for the delay, as the European Court of Justice (ECJ) ruled in Sturgeon that passengers on delayed flights have the right to compensation if an arrival delay of more than three hours occurs at the final destination. The plaintiffs argued further that the term 'flight' referred to the concept of journey or travel rather than a single flight segment.
The court refused the plaintiffs' considerations in both cases with the exact same wording, based on the following arguments.
The court stated that the meaning of the term 'flight' could not be determined by national air law, but was defined autonomously by the regulation. The regulation, in particular Article 2, does not provide for an express definition. In these circumstances, the term 'flight' must be interpreted in light of the regulation as a whole, including the objectives of that regulation (Emirates v Schenkel, C-173/07).
An indication to what the term 'flight' means, in the sense of the regulation, is contained in Article 3(1). According to this provision, the regulation shall apply to passengers departing from an airport located in the territory of an EU member state. It will also apply to passengers departing from an airport located in a third country to an airport situated in the territory of an EU member state if the operating air carrier of the flight concerned is a community carrier.
The concept of 'flight' within the meaning of the regulation must be interpreted essentially as an air transport operation, a unit of such transport performed by an air carrier which fixes its itinerary. It follows that an outward and return journey cannot be regarded as a single flight. The fact that the outward and return flights are the subject of a single booking has no effect on the interpretation of that provision (Emirates v Schenkel).
The individual journey or itinerary of a passenger cannot be taken into consideration, as the regulation refers to the rights of the passengers on a flight as a collective, rather than to an individual right. Further, in Emirates v Schenkel, the ECJ pointed out that irregularities may occur once in connection with each flight. Thus, this finding would be contradicted if delays on the first and second flight had to be construed as a single delay. The passenger's individual itinerary and final destination are relevant only for determining the amount of compensation (ie, €250, €400 or €600).
The court concluded that according to Article 3(1), the regulation was not applicable. The plaintiffs did not commence a flight within the EU territory. The court therefore upheld the dismissal of the claim by the lower courts.
The Federal Court of Justice emphasised that a claim for compensation under the regulation must be rejected under these circumstances, as even though the first flight of the outward journey departed from Frankfurt, the flights were booked together and were operated by the same air carrier.
If two or more flights are offered by an air carrier and each flight has been assigned a specific flight number for a particular route, then the applicability of the regulation must be determined for each of those flights separately. This segmentation of flights is the logical continuation of the ECJ's considerations in Emirates v Schenkel. The ECJ decided that the outbound and return journey were distinct and could not be regarded as one flight in the sense of the regulation. The Federal Court of Justice analysed the principles established by the ECJ and transferred them to the smaller units (ie, each separate flight of the outbound and return journey).
The court's judgment is convincing, as it closely parallels the ECJ's considerations. Further, it is in line with the court's earlier judgments, in particular in BGH Xa ZR 113/08.
With its judgment the Federal Court of Justice has reaffirmed that the applicability of the regulation must be determined for each flight separately, while interpreting the term 'flight' as being the smallest unit of transport performed by an air carrier which fixes its itinerary.
For further information on this topic please contact Katja Helen Brecke at Arnecke Siebold Rechtsanwälte by telephone (+49 69 97 98 85 0), fax (+49 69 97 98 85 85) or email (firstname.lastname@example.org).
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