With two recent decisions, the ECJ made it clear that compensation for flight delays is only due if the passenger is actually affected by the delay
Vienna (OTS) – In the first case (C-474/22), a passenger booked a flight from Düsseldorf to Palma de Mallorca. After the air carrier informed the passenger of an expected delay shortly before departure, the passenger decided not to board the flight for fear of missing a business meeting. In fact, the flight finally arrives 3 hours and 32 minutes late.
The second case (C-54/23) was similar. Here too, the passenger on a flight from Düsseldorf to Palma was informed of an expected delay. This time, however, the passenger – also worried about the possibility of missing a business meeting – booked an alternative flight on his own, which allowed him to reach Palma less than three hours late.
In both cases, the ECJ does not consider that there is any right to compensation and clearly stated that, in the event of delay, the passenger must be registered and presented in a timely manner to a representative of the operating air carrier (C-474/22). If the passenger books a replacement flight that causes a delay of less than three hours, he is also not entitled to any compensation (C-54/23).
A very important clarification, says Martin Klemm, partner at Brenner & Klemm Rechtsanwälte, who is satisfied with the decision. Apart from the fact that it would be incomprehensible why a passenger would receive a claim for compensation for a delay that does not affect them in any way. , this interpretation also corresponds to the clear wording of the regulation. The Air Passenger Rights Regulations stipulate – except in the case of cancellation – that the passenger is obliged to arrive at check-in on time, otherwise there is no right to compensation.
This also ensures that the passenger contacts the air carrier so that they can be serviced or rebooked accordingly. This will also make the work of aviation companies much easier, continued Klemm.
The decision will certainly have an impact in Austria, as compensation has so far been awarded by Austrian courts in similar cases, such as those that the ECJ had to deal with.
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Dr. Martin Klemm, LL.M.
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