Order — ECLI:EU:T:2026:204
Date: 2026-03-18
Language of the case: German

Translation T-917/25 – 1 
Case T-917/25 [Fewirth i] 
Request for a preliminary ruling 
Date lodged: 
20 December 2025 
Referring court: 
Landesgericht Korneuburg (Austria) 
Date of the decision to refer: 
6 November 2025 
Applicant: 
W***** H***** 
Defendant: 
R*****  
  
22 R 220/25w 
REPUBLIC OF AUSTRIA 
LANDESGERICHT KORNEUBURG (REGIONAL COURT, 
KORNEUBURG, AUSTRIA) 
ORDER 
The Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), sitting as 
an appellate court […] in the proceedings brought by the applicant W***** 
H***** […] against the defendant R***** […], concerning EUR 250 plus 
interest and costs, on the defendant’s appeal against the judgment of the 
Bezirksgericht Schwechat (District Court, Schwechat) of 18 August 2025, 17 C 
175/25a-20, decided in closed session as follows: 
[I] The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
      
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 6. 11. 2025 – CASE T-917/25 
 
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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 (the Air Passenger Regulation) to be 
interpreted as meaning that a passenger may assert the right provided for in 
Article 7 of that regulation if he or she presents himself or herself in good 
time for check-in, boards the aircraft, waits there for two to three hours, is 
then asked to leave the aircraft, spends further hours in the airport terminal, 
and decides after eight hours not to take the flight, and the flight (without the 
passenger) reaches its final destination with a delay of almost twelve hours? 
[II] […] [Stay of proceedings] 
GROUNDS: 
The applicant had a confirmed booking for flight ** 6914 operated by the 
defendant on 12 July 2024 from Vienna (Austria; VIE) to Milan (Italy; MXP) 
with scheduled departure time of 13:35 and scheduled arrival time of 15:05 (all 
local time). He arrived at Vienna airport on 12 July 2024 shortly after 12:00 and 
received a notification on his mobile phone from the defendant informing him that 
the flight would be delayed. Boarding took place at 15:08. The applicant then sat 
in the aircraft for at least two hours until he was informed that the flight would be 
further delayed and he was asked to leave the aircraft. He subsequently spent 
several more hours waiting in the airport terminal. Finally, he received 
information that the flight would be departing after midnight. At that, he decided 
not to take the flight and left Vienna airport at around 22:00. The actual arrival 
time of the flight at Milan airport was 02:18 on 13 July 2024. 
By the action brought on 20 August 2024 before the Bezirksgericht für 
Handelssachen Wien (District Court for Commercial Matters, Vienna) in the 
European order for payment procedure, and then transferred to the Bezirksgericht 
Schwechat (District Court, Schwechat), the applicant requested the award of 
EUR 250, plus 4% interest on that amount as from 13 July 2024 and argued that 
he had presented himself punctually at the time specified by the defendant for 
check-in. According to the applicant, a chain of unrealistic aircraft rotations and 
two changes of aircraft demonstrates an organisational failure on the part of the 
defendant. The flight reached its final destination with a delay of more than three 
hours. As a result, he suffered an irreversible loss of time of three hours. Between 
the time he set off and his return journey home, he suffered a loss of time of 
twelve hours. Rebooking was not a possibility for him, so he opted for a ticket 
refund. 
[…] 
The defendant conceded only that interest began to accrue as from 6 August 
2024, but otherwise contested the action both on the merits and, without stating 
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reasons, the amount at issue, contended that the action should be dismissed, and 
argued that the applicant had not presented himself for check-in for the flight; 
consequently the Air Passenger Rights Regulation was not applicable, pursuant to 
Article 3(2)(a) thereof. The applicant had decided of his own free will not to 
accept the delay and to abandon the flight. He had not reached his final destination 
with a delay of more than three hours. 
In the judgment under appeal, the court of first instance ordered the defendant to 
pay the applicant EUR 250 plus 4% interest from 6 August 2024 […]. It made the 
findings […], the essential content of which was set out at the beginning. From a 
legal point of view, the court of first instance concluded that, in accordance with 
Article 5(1)(c) in conjunction with Article 7(1)(a) of the Air Passenger Rights 
Regulation, compensation is payable in case of cancellation of a flight. According 
to the case-law of the Court of Justice of the European Union, passengers whose 
flights are delayed are treated in the same way as passengers whose flights are 
cancelled for the purposes of applying the right to compensation and may 
therefore also claim compensation if they suffer a loss of time of three hours or 
more due to a delayed flight. The decisive factor is that passengers on a flight with 
a long delay, in the same way as passengers whose flight is cancelled, suffer 
damage consisting in an irreversible loss of time of three hours or more, which 
can be remedied only by payment of compensation. The applicant had suffered 
such an irreversible loss of time; the fact that he ultimately did not take the flight 
could not operate to his detriment. The defendant did not even claim that there 
were extraordinary circumstances that led to the delay. […] 
The defendant’s appeal is directed against that judgment […]. 
The applicant contends that the appeal should be dismissed. 
The Landesgericht Korneuburg (Regional Court, Korneuburg), as the appellate 
court, is called upon to rule on the applicant’s claim at second and last instance. 
In its appeal, the defendant submits, in essence, that the Bezirksgericht Schwechat 
(District Court, Schwechat) failed to have regard to the case-law of the Court of 
Justice, according to which waiting time at the airport of departure, without actual 
arrival at the final destination, does not give rise to a claim. 
In his response to the appeal, the applicant states that the Court of Justice typically 
measures irreversible loss of time by reference to the delay in arrival and has 
merely held that a person who does not go to the airport at all in order to avoid a 
loss of time that is merely anticipated does not satisfy the conditions for the award 
of compensation. The Court of Justice has not yet ruled on the situation where a 
passenger presents himself or herself in good time but, after several hours of 
waiting time and successive postponements, is required to disembark (‘de-board’) 
and ultimately abandons the journey. 
REQUEST FOR A PRELIMINARY RULING OF 6. 11. 2025 – CASE T-917/25 
 
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[I] The appellate court concurs with that view in so far as there is no clear 
ruling by the Court of Justice on a comparable set of facts. As far as the appellate 
court can ascertain, that view is shared in German-language literature. 
The following question is currently pending before the General Court of the 
European Union in Case T-133/25, Condor Flugdienst: 
‘Does the right to compensation in the event of a delay in arrival of more 
than three hours also exist if the passenger, who has presented himself or 
herself in good time for check-in at the boarding gate at the scheduled flight 
time, is aware of the long delay and no longer participates in the flight, for 
example because the flight can no longer serve the purpose of the journey?’ 
However, the appellate court is unable to determine from the request for a 
preliminary ruling published on www.curia.at whether the passenger – as in the 
present case – spent three hours or more waiting at the airport and/or in the 
aircraft. It therefore considers itself required, under Article 267 TFEU, also to 
examine those facts and to refer the question formulated in the introduction to the 
Court of Justice. 
The starting point for all considerations – on which the parties to the dispute and 
the court of first instance agree – is the judgment of the Court of Justice of 
19 November 2009 in Joined Cases C-402/07 and C-432/07, Sturgeon and Others. 
At that time, the Fourth Chamber proceeded on the basis that compensation is 
intended to compensate for the damage consisting, for the passengers concerned, 
in a loss of time which, given that it is irreversible, can be redressed only by 
compensation. That damage is suffered both by passengers whose flights are 
cancelled and by passengers whose flights are delayed if, prior to reaching their 
destinations, the latter’s journey time is longer than the time which had originally 
been scheduled by the air carrier. The same treatment applies to passengers whose 
flights are delayed and who suffer a loss of time of three hours or more in the 
course of their journey (Sturgeon and Others, paragraphs 52, 53 and 58). The 
Fourth Chamber concluded that passengers whose flights were delayed could rely 
on the right to compensation where they suffered, on account of such flights, a 
loss of time equal to or in excess of three hours, that is to say, if they reached their 
final destination three hours or more after the arrival time originally scheduled by 
the air carrier (Sturgeon and Others, paragraph 61). Already in that first decision 
on the issue at hand, the Fourth Chamber considered the fact that the number of 
passengers might decrease because some passengers had accepted re-routing 
offered to them on another flight, while other passengers had, for personal 
reasons, decided not to take the delayed flight (judgment in Sturgeon and Others, 
paragraph 38). However, the Court of Justice did not adopt an express position on 
that specific scenario. 
The following judgments of 23 October 2012 in Joined Cases C-581/10 and 
C-629/10, Nelson and Others, and of 26 February 2013 in Case C-11/11, Folkerts, 
were each handed down by the Grand Chamber. 
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In the judgment in Nelson and Others, the Court of Justice held that no provision 
of the Regulation specifically grants fixed compensation to passengers who learn 
at the very last moment before their flight, or even during that flight, that there 
will be a long delay, and that they will reach their final destination three hours or 
more after the scheduled arrival time (judgment in Nelson and Others, 
paragraph 32). The Court of Justice held that passengers who, for one reason or 
another, must reach their final destination at a particular time cannot avoid the loss 
of time inherent in the new situation, since they have no leeway in that regard 
(judgment in Nelson and Others, paragraph 35). 
In the judgment in Folkerts, the Court of Justice distinguished between two 
different cases of delay governed by the Regulation; first, the delay beyond the 
scheduled departure time governed by Article 6; secondly, the delay determined at 
the time of arrival at the final destination, as governed by provisions such as 
Article 5(1)(c)(iii) (judgment in Folkerts, paragraph 28 et seq.). Since the 
inconvenience materialises, with regard to delayed flights, on arrival at the final 
destination, the Court of Justice held that a delay must be assessed, for the 
purposes of the compensation provided for in Article 7 of the Regulation, in 
relation to the scheduled arrival time at the final destination (judgment in Folkerts, 
paragraph 33). 
Reference should also be made to the judgment of 4 September 2014 in Case 
C-452/13, Germanwings, and to the reasoned order (under Article 99 of the Rules 
of Procedure) of 1 October 2020 in Case C-654/19, FP Passenger Service. The 
referring courts asked the Court of Justice for a more precise definition of the term 
‘time of arrival’ (judgment in Germanwings, paragraph 11). In that regard, the 
Ninth Chamber pointed out that the passengers were in an enclosed space and 
subject to various constraints. It is only when the passengers are permitted to leave 
the aircraft and the order is given to open the doors of the aircraft that the 
passengers are able to resume their normal activities without being subject to 
those constraints (judgment in Germanwings, paragraphs 23 and 24). That line of 
argument was adopted by the Eighth Chamber (order in FP Passenger Service, 
paragraph 30). 
In the reasoned order (under Article 99 of the Rules of Procedure) of 24 October 
2019 in Case C-756/18, easyJet Airline, the Eighth Chamber stated that 
passengers on a flight with a delay of 3 hours or more on arrival who had a 
confirmed booking on that flight cannot be denied compensation solely on the 
ground that, upon claiming compensation, they failed to prove, in particular by 
means of a boarding card, that they had presented themselves for check-in for that 
flight (order in easyJet Airline, paragraph 34). It is worth highlighting that the 
Eighth Chamber went further, stating that it is otherwise if the air carrier has 
evidence that, contrary to their assertions, those passengers were not transported 
on the delayed flight at issue, which is a matter for the national court to determine 
(order in easyJet Airline, paragraph 33). 
REQUEST FOR A PRELIMINARY RULING OF 6. 11. 2025 – CASE T-917/25 
 
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A more detailed examination of irreversible loss of time can be found in the 
judgment of 25 January 2024 in Case C-474/22, Laudamotion (Decision not to 
take a delayed flight). In the first place, the Third Chamber had to answer the 
question put by the Bundesgerichtshof (Federal Court of Justice, Germany) as to 
whether the right to compensation requires that the passenger must present 
himself or herself for check-in (judgment in Laudamotion, paragraph 18). The 
Eighth Chamber pointed out that a passenger whose flight was delayed had to wait 
for the aircraft to be ready for take-off and had necessarily presented himself or 
herself for check-in. He or she therefore had to wait longer in order to reach their 
final destination and therefore undeniably suffered damage consisting in a loss of 
time which, given that it is irreversible, can be redressed only by compensation 
(judgment in Laudamotion, paragraph 24). The right to compensation in the event 
of cancellation of a flight or long delay of a flight in arrival at its final destination 
is intrinsically linked to the occurrence of a loss of time of equal to or in excess of 
three hours (judgment in Laudamotion, paragraph 25). The inconvenience consists 
in the lack of comfort, the fact of being temporarily denied means of 
communication normally available or, lastly, the fact of being unable to carry on 
one’s personal, domestic, social or business activities (judgment in Laudamotion, 
paragraph 27). 
However, the judgment of 25 January 2024 in Case C-54/23, Laudamotion and 
Ryanair, points in a different direction. Once again, the Federal Court of Justice 
(Germany) referred a question concerning a situation in which the passenger did 
not take the flight that was originally booked and estimated to be delayed, but 
booked a replacement flight himself and reached his final destination with a delay 
of less than three hours (judgment in Laudamotion and Ryanair, paragraph 15). 
The Third Chamber responded by considering that the inconvenience in the event 
of delayed flights materialises on arrival at the final destination, so that, for the 
purposes of the compensation provided for in Article 7(1) of the Regulation, a 
delay must be assessed in relation to the scheduled arrival time at that destination 
(judgment in Laudamotion and Ryanair, paragraph 20). The right to compensation 
is intrinsically linked to the occurrence of that loss of time equal to or in excess of 
three hours (judgment in Laudamotion and Ryanair, paragraph 21). The fact that a 
passenger has found a replacement flight himself or herself is recognised as an 
inconvenience, but cannot be regarded as ‘serious’ within the meaning of that 
regulation (judgment in Laudamotion and Ryanair, paragraph 23). 
This leads to the following considerations by the appellate court: 
Applying all of the above considerations to the facts of the case to be decided by 
the appellate court, it must first be examined whether the passenger suffered an 
irreversible loss of time of three hours or more. As regards the judgment in 
Sturgeon and Others, it should be noted that the passengers reached their final 
destination with a delay of three hours or more. That finding was made by the 
Court of Justice without that judgment indicating that that was a sine qua non. In 
the judgments in Nelson and Others and Folkerts, the Court of Justice makes clear 
that the irreversible loss of time occurs as a result of the delayed arrival at the final 
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destination. In the order in easyJet Airline, the Court of Justice links that loss of 
time to carriage on the delayed flight. If the passenger is unable to establish that 
he or she was carried on the delayed flight, the claim for compensation must be 
denied. In the judgment in Germanwings and the order in FP Passenger Service, it 
is not the time that has elapsed as such that is important; the loss of time must be 
associated with inconvenience for the passenger, involving a significant restriction 
on communication, freedom of movement and the ability otherwise to attend to 
one’s own affairs. The judgment in Laudamotion (Decision not to take a delayed 
flight) is along the same lines and requires only that a loss of time has occurred. In 
contrast, according to the judgment in Laudamotion and Ryanair, delayed arrival 
at the final destination is required. The reason for applying the right to 
compensation not only in the event of cancellation of a flight but also in the event 
of a long delay lies in the more precisely described circumstances linked to an 
irreversible loss of time. Such loss of time must therefore be associated with a 
more specifically defined inconvenience for the passenger. 
The adjudicating Chamber concludes from this that such inconvenience is 
typically suffered by the passenger only once he or she is on board the aircraft for 
the journey to the final destination. That would lead to the conclusion that the 
applicant’s waiting time at the airport does not entail a restriction of such gravity 
as would justify the application by analogy of the right to compensation in the 
event of flight cancellation. Only the waiting time between boarding the aircraft 
until being requested to disembark the aircraft constitutes a comparable restriction 
affecting the passenger capable of justifying the application by analogy of the 
rules on compensation. That solution is, however, somewhat at odds with the 
starting point of the judgment in Sturgeon and Others. A comparison between the 
situations of passengers whose flights are cancelled and those whose flights are 
delayed, as regards restrictions on communication, freedom of movement and the 
ability otherwise to attend to one’s own affairs, is flawed because passengers 
whose flights are cancelled, although they may suffer inconvenience, are not 
subject to any of the abovementioned restrictions. They are not even required to 
travel to the airport in order to be entitled to compensation. While passengers 
whose flights are delayed may be exposed to such inconvenience, it does not, as 
regards the transport itself, go beyond that which would have arisen had the flight 
departed on time. Delayed flights do not take longer, but merely occur later, and 
passengers are subject to the same restrictions, albeit at a later point in time. 
Applied to the specific facts of the present case, this means: 
– Should the Court of Justice conclude that the mere loss of time suffered by the 
applicant until he leaves the airport is decisive, the appeal must be dismissed and 
the judgment under appeal upheld. 
– If the Court of Justice concludes that the passenger’s taking of the delayed flight 
is a sine qua non for the application by analogy of the rules on compensation, the 
appellate court will have to uphold the defendant’s appeal and vary the judgment 
under appeal by dismissing the claim. 
REQUEST FOR A PRELIMINARY RULING OF 6. 11. 2025 – CASE T-917/25 
 
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– However, should the Court of Justice conclude that an irreversible loss of time 
presupposes inconvenience associated with the restrictions affecting the passenger 
on board the aircraft, it will be necessary to examine how long the passenger was 
on board the aircraft in the present case. The court of first instance found that the 
applicant had been seated in the aircraft for at least two hours before being 
informed that the flight would be further delayed and being asked to leave the 
aircraft. The court of first instance did not make any positive or negative finding 
as to whether the applicant suffered an irreversible loss of time of three hours or 
more while on board the aircraft. However, in the proceedings at first instance, the 
applicant claimed that he had been seated in the aircraft for two to three hours. 
Thus, regardless of the submissions made at first instance, it has not been 
established with certainty whether the applicant was on board the defendant’s 
aircraft, which was already delayed at that time, for three hours or not. That would 
lead the appellate court to set aside the judgment under appeal, refer the case back 
to the Bezirksgericht Schwechat (District Court, Schwechat) and instruct it to 
determine when exactly the applicant left the aircraft. 
The answer to the question referred by the appellate court is therefore of decisive 
importance for the continuation of the appeal proceedings. 
[…]