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07 August 2013
On May 7 2013 the Federal Court of Justice held that passengers of a delayed feeder flight which falls within the scope of Article 3 of EU Regulation 261/2004 are entitled to compensation for delay if the delay causes them to miss their connecting flight and results in them reaching their final destination with a delay of three hours or more (BGH X ZR 127/11).
According to the court, the same applies regardless of whether the connecting flight falls within the scope of the regulation or was delayed.
Passengers booked flights with an EU carrier from Berlin to Madrid and further from Madrid to San Jose (Costa Rica). At Berlin-Tegel Airport, the passengers were booked in and received boarding passes for both flights. The intra-EU flight reached Madrid with a delay of 90 minutes, which caused the passengers to miss the connecting flight to San Jose. The passengers were rebooked and arrived in San Jose one day later than originally scheduled.
The lower instance courts dismissed the claim, focusing solely on the compensation claim according to Article 4(3)(7) of the regulation. The lower instance courts argued that the passengers were not on time for boarding and thus could not claim compensation. The passengers appealed and the Federal Court of Justice suspended the proceedings in order to request a preliminary ruling from the European Court of Justice (ECJ).
Following the ECJ's ruling in Folkerts, the Federal Court of Justice reversed the lower courts' decision and awarded compensation to the passengers pursuant to Article 6(7) of the regulation.
The Federal Court of Justice based its decision mainly on the ECJ's decisions in Sturgeon, Nelson and Folkerts. In Folkerts the ECJ confirmed that the delayed departure of the feeder flight beyond the limits set in Article 6 is not a prerequisite for compensation.
Further, the Federal Court of Justice did not reverse its earlier decisions of November 13 2013 concerning the non-applicability of the regulation to connecting flights outside the EU territory. The court emphasised that it maintains the view that all flights must be assessed separately when determining the applicability of the regulation. If a delay occurs solely on a connecting flight outside the EU territory, the regulation will not apply.
However, the court made a distinction and argued that Article 7 of the regulation refers to the final destination (ie, encompassing the feeder flight, as well as the connecting flight). Therefore, Article 7 includes delays that occur on the feeder flight if they cause passengers to miss their connection. This interpretation takes into account that the delay of the feeder flight affects passengers severely if they miss their connecting flight.
The court rejected the defendant's argument that the ECJ had exceeded its competence in Folkerts.
The Federal Court of Justice's decision does not reverse its previous rulings of November 13 2012 in Xa ZR 12/12 and Xa ZR 14/12. Delays occurring outside the EU territory do not fall within the scope of the regulation. However, if the delay outside the European Union is a consequence of a delay on a flight that started from an EU airport, then compensation can be claimed. The court further held that compensation must be paid regardless of whether the connecting flight falls within the scope of the regulation.
Through the creation of a causal link between the feeder flight and the connecting flight, the court has extended the applicability of the regulation to extra-European flights. In light of the ECJ's decision on the EU Emissions Trading Scheme (December 21 2011, C-366/10), it is unsurprising that the court refused the defendant's argument that the ECJ had exceeded its competence. From a legal viewpoint, however, the argument is not convincing and seems largely motivated by consumer protection considerations.
Moreover, the question arises as to whether the judgment will extend to non-European carriers. Article 3 of the regulation distinguishes clearly between EU carriers and non-EU carriers. The ECJ confirmed this distinction in Emirates v Schenkel (C-173-07). It is nevertheless to be expected that most lower courts in Germany will interpret the decision as being applicable to non-European carriers as well.
It further seems unlikely that airlines will sell separate tickets for feeder and connecting flights, or that those airlines will press for the adaptation of minimum connecting times. In addition, the proposal for a revision of the regulation (261/2004, COM(2013) 130 final) does not promise relief in this regard, but seems to go further. According to the proposal, passengers may claim compensation from the air carrier operating the delayed flight, as it was at the origin of the total delay. It is stated that such a right would apply only where the connecting flights are part of a single contract of carriage; in that case, the air carriers concerned are committed to and aware of the intended connection between the flights. The air carriers retain only the right to agree on distributing costs between themselves. Moreover, the draft foresees that the carrier of the missed flight has a duty of care even if the flight is operated as scheduled. This reasoning appears to have no basis in fact and is likely to be perceived as unfair and unjust.
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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