Order;Summary — ECLI:EU:C:2020:770
Date: 2020-10-01
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

Translation C-654/19 — 1 
Case C-654/19 
Request for a preliminary ruling 
Date lodged: 
3 September 2019 
Referring court: 
Landesgericht Korneuburg (Regional Court of Korneuburg, Austria) 
Date of the decision to refer: 
2 July 2019 
Applicant and appellant: 
FP Passenger Service GmbH 
Defendant and respondent: 
Austrian Airlines AG 
  
[…] 
The Regional Court of Korneuburg, acting as court of appeal, […] in the case of 
the applicant FP Passenger Service GmbH, […] 1010 Vienna, […] versus the 
defendant Austrian Airlines AG, […] 1300 Vienna Airport, […] concerning 
EUR 400.00, plus interest and costs, on appeal by the applicant against the 
judgment of the Bezirksgericht Schwechat (District Court of Schwechat) of 
28 January 2019, […] sitting in closed session, made the following 
ORDER: 
  
1. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
Are Articles 5, 6 and 7 of Regulation (EC) No 261/2004 of the European 
Parliament and of the Council of 11 February 2004 establishing common rules on 
compensation and assistance to passengers in the event of denied boarding and of 
cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, 
to be interpreted as meaning that, when calculating a delay – having regard to the 
EN 
REQUEST FOR A PRELIMINARY RULING OF 2.7.2019 — CASE C-654/19 
 
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decision of the Court of Justice in Case C-452/13, according to which account is 
to be taken of the time of the door opening [Or. 2] – it is necessary to establish the 
difference between the actual time of the door opening and the scheduled time of 
arrival, or the difference between the actual time of the door opening and the time 
at which it is expected that the door would be opened if the time of arrival was as 
scheduled? 
2. The proceedings are stayed pending delivery of the preliminary ruling of the 
Court of Justice of the European Union. 
Grounds: 
I. The main proceedings: 
(a) The following facts are undisputed or, on account of restrictions applicable 
to appeals under national law […], have been established beyond challenge by the 
court of first instance: 
The passenger Hermann Jauk had a confirmed reservation with the defendant for 
the following flight with the following planned flight times: 
Flight with the flight number OS 2344; departure from HRG: 20 August 2017, 
10.50 and arrival at VIE: 20 August 2017, 15.20. 
The actual flight times of flight OS 2344 were as follows: 
departure from HRG: 20 August 2017, 14.22 [Actual Time of departure] (ATD) 
and arrival at VIE: 20 August 2017, specifically at: 
18.14 ‘touch down’ (landing), reported by an employee of the airport; 
18.17 flight at end position [Actual Time of Arrival] (ATA); reported by an 
employee of the airport; 
18.18 aircraft applied the parking brake; automatically reported by the aircraft; 
18.22 crew report that the aircraft has reached its parking position. [Or. 3] 
The aircraft was parked at a remote position, specifically at F55, and the 
passengers left the aircraft via passenger steps and were transported to the 
terminal building by bus. 
The distance in air kilometres for the flight from HRG to VIE is more than 1 500, 
but fewer than 3 500 km. 
Aircraft land at Vienna-Schwechat airport both on the airfield, where passengers 
leave the aircraft via steps and reach the airport building by means of a shuttle, 
FP PASSENGER SERVICE 
 
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and directly at the ‘finger’, where people leave the aircraft and enter the airport 
via the passenger bridge. 
It cannot be established that the aircraft at issue would not have landed at remote 
position F55 or any remote position if it had landed on time according to the 
original flight schedule. 
It cannot be established that the opening of the doors took an exceptionally long 
time. 
The passenger Hermann Jauk assigned the claim at issue to the applicant and the 
latter accepted the assignment. 
(b) The applicant is seeking compensation in the amount of EUR 400.00 plus 
interest pursuant to Article 5 in conjunction with Article 7 of Regulation (EC) 
No 261/2004 of the European Parliament and of the Council of 11 February 2004 
establishing common rules on compensation and assistance to passengers in the 
event of denied boarding and of cancellation or long delay of flights, and 
repealing Regulation (EEC) No 295/91 (‘the Flight Passenger Rights Regulation’). 
In its reasoning, it essentially argues that [Or. 4], due to circumstances for which 
the defendant was solely responsible, the departure of flight OS 2344 on 
20 August 2017 was delayed, which meant that the destination of Vienna-
Schwechat (VIE) was actually reached at 18.22 on 20 August 2017 instead of at 
15.20 on 20 August 2017, with a delay of more than three hours. The actual 
departure time had been 14.22 on 20 August 2017, and not 11.15 on 20 August 
2017 as scheduled. The applicant was therefore entitled to compensation of 
EUR 400.00 pursuant to Article 5 in conjunction with Article 7(1) of Regulation 
(EC) No 261/2004. Two times were recorded as the arrival time on the Flightstats 
extract. The top one (18.22) was the ‘on-block’ time, that is to say, the time at 
which the aircraft took up the parking position. The bottom one (18.14) was the 
‘touch down’ time, that is to say, the time at which the aircraft touched down on 
the runway. However, the time of the door opening and therefore the time at 
which the passenger had been able to leave the aircraft was ultimately decisive in 
respect of the delay. It was expressly disputed that it would have been possible for 
the passenger in the case at issue to leave the aircraft before 18.20. There had been 
no exceptional circumstances. Reference was made to the defendant’s burden of 
proof. The actual gate arrival had been at 18.22. That was the time indicated by 
the crew. The Bezirksgericht für Handelssachen Wien (District Court for 
Commercial Matters, Vienna) had allowed the action in respect of the flight at 
issue in Case 22 C 21/17z. 
The passengers had been brought to the terminal building by bus and had only 
regained the actual power to determine their own whereabouts upon arrival at the 
terminal building. This had in any case been after 18.21 [Or. 5]. The scheduled 
arrival time could, logically, refer only to the reaching of the parking position at a 
‘finger’ of the terminal building and not to the reaching of the remote position. 
REQUEST FOR A PRELIMINARY RULING OF 2.7.2019 — CASE C-654/19 
 
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(c) The defendant is seeking to have the action dismissed and essentially 
argues that flight OS 2344 was delayed for less than three hours on 20 August 
2017. The flight was originally supposed to land at 15.20 ‘on-block’ time. Due to 
the delay, the applicant did not reach its destination until 18.17 on 20 August 
2017. Both the original and actual landing times were ‘on-block times’, that is to 
say, the time at which the aircraft landed at the destination airport. The opening of 
the doors was not included therein. Entitlement to compensation arose only after a 
delay of more than three hours in arriving at the destination. There had been no 
unusual delay in opening the doors. However, as the passenger’s arrival at the 
destination had only been delayed by less than three hours, he was not entitled to 
compensation. The parking brake had been applied at 18.18. That was the time 
which was automatically conveyed to the system by the aircraft. No human action 
was required to establish this time. It was expressly disputed that arrival at a 
‘finger’ had originally been planned for this flight. 
(d) The court of first instance dismissed the claim in full and stated in its 
reasoning that the scheduled departure time of flight OS 2344 (LTD = local time 
of departure) had been 10.50 and the scheduled arrival time (LTA = local time of 
arrival) had been 15.20. The actual time of departure (ATD) had [Or. 6] been 
12.22 Coordinated Universal Time (UTC) (14.22 local time), which was to be 
compared with the actual time of arrival (ATA) of 16.17 UTC (18.17 local time). 
Only the comparison between the scheduled and actual arrival times was relevant 
for calculating the actual delay. As this resulted in a delay of only 2 hours 57 
minutes, there was no entitlement to compensation pursuant to Article 5 in 
conjunction with Article 7(1)(b) of Regulation (EC) No 261/2004. 
The question regarding the arrival time as the relevant time according to which a 
flight delay was measured had been answered by the Court of Justice in the 
Germanwings v Henning case (C-452/13) to the effect that this was to be 
understood as the time at which the passenger was relieved of the restrictions on 
his personal freedom through the opening of the aircraft doors. Since, however, 
according to the nomenclature of the International Air Transport Association 
(IATA), the times stated in flight schedules were based on the leaving (off-block) 
and reaching of the parking position (on-block), this could lead to an 
unsatisfactory outcome if the time difference between the scheduled arrival at the 
parking position and the actual opening of the doors was used to gauge the extent 
of the delay. This is because even a flight that had achieved its scheduled ‘on-
block time’ would accordingly have to be regarded as delayed — albeit only 
slightly — because the doors had not been opened at the same moment at which 
the parking position had been reached, which is never the case for technical 
reasons alone. Therefore, the time at which the doors had actually been opened 
could properly be compared only with the time at which the doors [Or. 7] would 
have been opened upon a scheduled arrival (on-block). If the opening of the doors 
of the delayed flight did not take an unusually long time, it must be assumed that 
the period between the arrival (on-block) of the delayed flight and the opening of 
the doors was precisely as long as the period that would have elapsed between the 
arrival of the scheduled flight and the opening of the doors after the scheduled 
FP PASSENGER SERVICE 
 
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flight. The door opening time that was decisive in respect of the arrival delay was 
a claim-substantiating fact which, fundamentally, was for the passenger to 
demonstrate and prove, it being sufficient for him to indicate the time at which he 
had been able to leave the aircraft. The negative finding meant that the applicant 
had not discharged its burden of assertion and proof. In such a case, there had to 
be a purely mathematical comparison between the actual ‘on-block time’ and the 
scheduled ‘on-block time’, because the additional minutes until the opening of the 
doors did not have an effect; these would also have elapsed if the flight had been 
as scheduled. As it had not been argued that the opening of the doors had taken an 
unusually long time, nor was it relevant for the calculation of the arrival delay 
when the passengers had been able to enter the airport building, the scheduled 
arrival time (15.20) was to be compared with the actual arrival time (18.17). The 
delay was therefore less than three hours, which meant that no compensation was 
due. 
(e) The applicant’s appeal is directed against that judgment. It essentially 
submits that the legal assessment by the court of first instance was incorrect. The 
Handelsgericht Wien (Vienna Commercial Court) had, in Case 1 R 177/18b, 
allowed another passenger’s claim in respect of the flight at issue [Or. 8] and 
justified this inter alia on the basis that, if the agreed service of the airline ended 
with the possibility of leaving the aircraft, that event had to be understood as the 
arrival time announced to the passengers, because only that result could be 
relevant to those passengers. Any other result would ultimately mean that the 
scheduled flight duration, the exceeding of which was at issue, could not be 
clearly determined by the passenger, in so far as he could not act as he normally 
would in that time, which would also be contrary to the principle of efficiency 
(see recital 7 of the Air Passenger Rights Regulation) if this were to make the 
enforcement of claims more difficult. Such a sufficiently precise determination 
would fail just on the basis that the (usual) duration of a flight until the opening of 
the first door depends on many (for instance airport-specific) factors which may 
often not yet be known when the contract is concluded (such as the presence of a 
passenger bridge or the need for mobile steps). The interpretation – described as 
unsatisfactory with reference to the decision of the Regional Court of Korneuburg 
in Case 22 R 40/16m – whereby a flight is slightly delayed if the doors were not 
opened at the same moment at which the parking position had been reached, is 
subject to ‘scheduled arrival time’ being understood as the reaching of the parking 
position and that time, although irrelevant to the passenger, being made known. 
That result would be avoided if, instead, what was considered relevant, as it was 
by the Court of Justice, in relation to the scheduled time of arrival, was the 
possibility of leaving the aircraft once the (first) door had been opened. It was 
therefore to be assumed that either the time listed in the [Or. 9] flight schedule or 
the time announced to the passengers as the ‘scheduled arrival time’ had to be 
compared with the actual arrival time. However, in both cases, regardless of an 
airline’s understanding of this published time, only the specifically announced 
arrival time was relevant, to which nothing was to be added. In the present case, 
this resulted in a delay of more than three hours, which meant that the applicant 
was entitled to the compensation sought. 
REQUEST FOR A PRELIMINARY RULING OF 2.7.2019 — CASE C-654/19 
 
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In the opinion of the appellant, this legal assessment by the Vienna Commercial 
Court was correct. It was relevant to consider how the announced scheduled 
arrival time would be understood by an average consumer. It was relevant to the 
passenger to establish when he could again freely determine his whereabouts. That 
was the time at which he could safely leave the aircraft, which the Court of Justice 
had also wished to indicate by its decision in Case C-452/13. As the crew had only 
announced at 18.22 that the aircraft had reached its parking position and the 
aircraft door could logically be opened only after that time, the court of first 
instance would have had to conclude, from a legal perspective, that a delay for 
which compensation is due did exist in that case, because the arrival delay had 
been more than three hours. 
(f) In its response to the appeal, the defendant requests that the appeal be 
dismissed and essentially endorses the content of the statements made by the court 
of first instance. 
II. The question referred: 
In continuation of its previous case-law […], the court of appeal assumes that – 
applying the decision of the Court of Justice [Or. 10] in Case C-452/13, according 
to which, when calculating delay, account is to be taken of the time of the door 
opening – it is necessary, when calculating the delay, to establish the difference 
between the actual time of the door opening and the expected time of door 
opening if the time of arrival had been as scheduled. 
As stated in the Germanwings v Henning decision (C-452/13), arrival time is to be 
understood as the time at which at least one of the doors of the aircraft is opened, 
the assumption being that, at that moment, the passengers are permitted to leave 
the aircraft. 
In order to now be able to calculate the delay in numerical terms, there is therefore 
a need for clarification of the question when the door would have been opened on 
a flight conducted as scheduled, in order to be able to relate that time to that of the 
actual door opening. The expected time of door opening is not mentioned in the 
flight plan of a flight conducted as scheduled. In the opinion of the court of 
appeal, the time which would elapse between arrival (on block) and the opening of 
the doors in the usual course of events is therefore to be deducted from that of the 
actual door opening when calculating the delay. Since experience shows that the 
period between the ‘on-block time’ and the door opening is usually the same for 
every flight, the period between the actual arrival time and the actual door 
opening, on the one hand, and the scheduled arrival time (on block) and the 
expected time of the door opening if the time of arrival is as scheduled, on the 
other, is the same, which means that this can be excluded from the calculation. 
However, if the period between the actual arrival time and the actual door opening 
is exceptionally long in a specific case [Or. 11] and the passenger asserts this and 
also provides evidence that, on the delayed flight, the period between the arrival 
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(on block) and the door opening was unusually long, this latter period — 
exceeding the usual time — would have to be taken into consideration and also 
added to the delay calculated as set out above. Due to the negative finding of the 
court of first instance, that it cannot be established that the opening of the doors 
took an unusually long time, it must be assumed that, in the present case, the 
period between the actual arrival time and the actual door opening was not 
excessive, which means that it can be disregarded according to the above 
considerations. This is because, in this case, the time between the door opening in 
the case of the scheduled completion of the flight and the actual door opening is 
precisely as long as the period between the scheduled arrival and the actual arrival 
according to the on-block time. 
In its decision in Case 1 R 177/18b, which is contrary to that legal opinion and 
which assumes an imprecise evaluation, and which assumes also that the delay to 
a flight cannot thereby be clearly determined and that the relevant factor is not the 
opinion of the airline but the understanding of the passenger as the recipient of 
information, for whom the block times are irrelevant but the time of disembarking 
is of great interest, the Vienna Commercial Court comes to the overall conclusion 
that either the time listed in the schedule or the time announced to the passengers 
as the ‘scheduled arrival time’ has to be compared with the actual arrival time, but 
in both cases it is the time that is specifically announced as being the time of 
arrival that is relevant [Or. 12], and no further time is to be added to it. 
However, the counter-argument to this is that, in that case, the actual flight time is 
always longer than the scheduled flight time, especially since the time between the 
actual arrival time and the door opening would also have to be added to the actual 
arrival time (on block), which would result in a delay at least equivalent to this 
period in every case. This period may therefore not only play a role in the actual 
arrival time but must also be taken into consideration in the scheduled arrival 
time, in order to be able to calculate the actual delay. Since, therefore, the time 
between arrival and door opening is, as a rule, always roughly the same, it can — 
normally — be disregarded and would only have to be taken into consideration in 
the case of a period that is exceptionally long and unusual. 
III. […] [Stay of proceedings] 
Regional Court of Korneuburg, […] 
Korneuburg, 2 July 2019 
[…]