Opinion of Advocate General, Sturgeon v CondorFlugdienst GmbH and Böck & Lepuschitz vAir France, 2 July 2009 Proceedings in the European Court of Justice (ECJ) havethreatened the legal validity of distinguishing between delay andcancellation for purposes of compensation payments under Regulation(EC) No. 261/2004, but the ultimate outcome could be far fromfavourable for carriers. Ever since EC Regulation 261/2004 on denied boarding,cancellations and delays came into force, a key question has beenwhen a delay is in reality a cancellation: key because it makes thedifference between whether or not the passenger is entitled tocompensation. Now that distinction is under threat. The Advocate General to the European Court of Justice (ECJ) hasrecently published an Opinion in two joined cases referred by theGerman Federal Court of Justice and the Vienna Commercial Court.The cases requested clarification of the distinction between"delay" and "cancellation" under Regulation261/2004. The trouble with referring questions on the properinterpretation of Regulation 261 to the ECJ is that one often getsmore than one bargained for. That was the case with the ECJ'sdecision in late 2008 in Wallentin which has madelife extremely difficult for carriers seeking to rely on a defenceof "extraordinary circumstances" when flights arecancelled for technical reasons, and it threatens to be the casehere too. For, as well as examining the vexed question of when adelay becomes a cancellation, the Advocate General's approachthreatens a wholesale reopening of the regulation by questioningthe underlying logic - and hence the legal validity - of whycancellation of a flight obliges the carrier to pay compensation tothe affected passengers but delay does not. In both these cases heard by the ECJ, the claimants had arguedthat their flights had in reality been cancelled rather than, asthe carriers argued, delayed and that they were accordinglyentitled to compensation under Article 5 of Regulation 261. The ECJwas accordingly asked questions aimed at assisting in determiningwhether a flight has been delayed or cancelled for the purposes ofthe Regulation. When is a delay a cancellation? The Advocate General acknowledged that there are a number offactors which might, in any particular case, indicate that a flighthas been cancelled rather than just delayed. Those include: changeof air carrier, change of aircraft, change of flight number, changeof airport of departure or arrival, issuing new boarding passes,...
Regulation (EC) No. 261/2004: Delays, Cancellations And A New Headache For Carriers
|Author:||Ms Sue Barham|
|Profession:||Barlow Lyde & Gilbert LLP|
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