Opinion of the Advocate General — ECLI:EU:C:2009:416
Date: 2009-07-02
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria;Germany

Summary of the Judgment 1. Transport – Air transport – Regulation No 261/2004 – Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (European Parliament and Council Regulation No 261/2004, Arts 2(l), 5 and 6) 2. Transport – Air transport – Regulation No 261/2004 – Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (European Parliament and Council Regulation No 261/2004, Arts 5, 6 and 7) 3. Transport – Air transport – Regulation No 261/2004 – Compensation and assistance to passengers in the event of cancellation of flights (European Parliament and Council Regulation No 261/2004, Art. 5(3)) 1. Articles 2(l), 5 and 6 of Regulation No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights must be interpreted as meaning that a flight which is delayed, irrespective of the duration of the delay, even if it is long, cannot be regarded as cancelled where the flight is operated in accordance with the air carrier’s original planning. A flight is delayed for the purposes of Article 6 of that regulation if it is operated in accordance with the original planning and its actual departure time is later than the scheduled departure time, whilst, according to Article 2(l) of that regulation, flight cancellation is the result of non-operation of a flight which was previously planned. (see paras 32-33, 39, operative part 1) 2. Articles 5, 6 and 7 of Regulation No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation when they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier. (see para. 69, operative part 2) 3. Article 5(3) of Regulation No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation or delay of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. (see para. 72, operative part 3)