Order — ECLI:EU:T:2026:62
Date: 2026-01-20
Language of the case: German

Translation T-133/25 - 1 
Case T-133/25 
Request for a preliminary ruling 
Date lodged: 
4 February 2025 
Referring court: 
Landgericht Düsseldorf (Germany) 
Date of the decision to refer: 
22 January 2025 
Applicant: 
Condor Flugdienst GmbH 
Defendant: 
Flightright GmbH 
  
[…] 
Landgericht Düsseldorf (Regional Court, Düsseldorf) 
Order 
In the case of 
Condor Flugdienst GmbH, […] Kelsterbach, 
defendant and appellant, 
[…] 
v 
Flightright GmbH, […] Berlin, 
applicant and respondent, 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 22. 1. 2025 – CASE T-133/25 
 
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on 22 January 2025, 
the 22nd Civil Chamber of the Landgericht Düsseldorf (Regional Court, 
Düsseldorf) 
[…] 
made the following order: 
The proceedings are stayed. 
The following question concerning the interpretation of EU law is referred to the 
Court of Justice of the European Union pursuant to point (b) of the first paragraph 
and the third paragraph of Article 267 TFEU: 
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? 
Grounds: 
I. 
The applicant claims a right to compensation from the defendant under Regulation 
(EC) No 261/2004 (‘the Air Passenger Rights Regulation’) under the assigned 
right of an air passenger. 
The assignor had a confirmed reservation for the defendant’s flight DE1517 on 
22 May 2023 from Palma de Mallorca to Düsseldorf, which was scheduled to take 
off from Palma de Mallorca at 19:55 local time and land in Düsseldorf at 22:15 
local time. 
The assignor presented herself for the flight at the airport, where she was informed 
by SMS that the flight would not be operated as scheduled. In fact, the flight at 
issue was not operated until the following day, 23 May 2023, between 19:55 and 
22:15 local time and the assignor did not take the flight. The distance between 
Palma de Mallorca and Düsseldorf is 1 340.00 km. 
The passenger assigned any rights to compensation in connection with the delayed 
flight to the applicant. The latter unsuccessfully demanded payment from the 
defendant, setting a deadline of 9 June 2023. 
On 21 February 2024, the Amtsgericht (Local Court) ordered the defendant to pay 
the applicant EUR 250.00 plus the interest accrued at the rate of five percentage 
points above the relevant base rate of interest since 10 June 2023. 
[…] 
CONDOR FLUGDIENST 
 
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On appeal, it claims that the court should vary the judgment of the Amtsgericht 
Düsseldorf (Local Court, Düsseldorf) of 21 February 2024 […] and dismiss the 
action. 
The applicant defends the judgment at first instance. 
II. 
The outcome of the action depends crucially on the question set out in the 
operative part. 
Specifically: 
1. 
The applicant could be entitled to compensation from the defendant in the amount 
of EUR 250.00 pursuant to Article 5(1)(c) and Article 7(1)(a) of the Air Passenger 
Rights Regulation read in conjunction with the second sentence of Paragraph 398 
of the BGB. 
(a) According to the settled case-law of the Court of Justice of the European 
Union, passengers have a right to compensation in accordance with Article 5(1)(c) 
and Article 7(1) of the Air Passenger Rights Regulation if they reach their planned 
final destination with a delay of three hours or more (see judgments of the Court 
of Justice of 19 November 2009, C-402/07 Sturgeon v Condor, NJW 2010, 43 and 
of 23 October 2012, C-581/10 Nelson v Lufthansa, NJW 2013, 671; and 
judgments of the BGH (German Federal Court of Justice) of 18 February 2010 – 
Xa ZR 95/06, NJW 2010, 2281; of 7 May 2013 – X ZR 127/11, NJW-RR 2013, 
1065; and of 12 June 2014 – X ZR 121/13, NJW 2014, 3303, 3304 paragraph 9). 
(b) At issue in the present case is not a cancellation but a long delay to the 
flight. 
The Court of Justice of the European Union has ruled on the distinction between a 
cancellation and a (long) delay in arrival to the effect that a flight is ‘delayed’ for 
the purposes of Article 6 of the Air Passenger Rights Regulation if it is operated in 
accordance with the original planning and (only) its actual departure time is later 
than the scheduled departure time (see judgment of the Court of Justice of 
19 November 2009 – C-402/07 and C-432/07, paragraph 32; BeckOGK 
Fluggastrechte-VO/Steinrötter/Bohlsen, date: 01.12.2024, Article 2 paragraph 100 
et seq.; Staudinger/Keiler/Staudinger, Fluggastrechte-VO, 2nd edition 2025, 
Article 2 paragraph 52). 
According to Article 2(l) of the Air Passenger Rights Regulation, flight 
cancellation, unlike delay, is the result of non-operation of a flight which was 
previously planned. It follows that, in that regard, cancelled flights and delayed 
flights are two quite distinct categories of flights. In those circumstances it cannot 
be inferred from the Air Passenger Rights Regulation that a flight which is 
REQUEST FOR A PRELIMINARY RULING OF 22. 1. 2025 – CASE T-133/25 
 
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delayed may be classified as a ‘cancelled flight’ merely on the ground that the 
delay is extended, even substantially (see judgment of the Court of Justice of 
19 November 2009 – C-402/07 and C-432/07, paragraph 33). Consequently, a 
flight which is delayed, irrespective of the duration of the delay, even if it is long, 
cannot be regarded as cancelled where there is a departure in accordance with the 
original planning (see judgment of the Court of Justice of 19 November 2009 – 
C-402/07 and C-432/07, paragraph 34). Thus, it is possible, as a rule, to conclude 
that a delay in departure is a cancellation only where the delayed flight for which 
the booking was made is ‘rolled over’ onto another flight, that is to say, where the 
planning for the original flight is abandoned and the passengers from that flight 
join passengers on a flight which was also planned – but independently of the 
flight for which the passengers so transferred had made their bookings (see 
judgment of the Court of Justice of 19 November 2009 – C-402/07 and C-432/07, 
paragraph 36). By contrast, it cannot, as a rule, be concluded that there is a flight 
delay or cancellation on the basis of a ‘delay’ or a ‘cancellation’ being shown on 
the airport departures board or announced by the air carrier’s staff. Similarly, the 
fact that passengers recover their luggage or obtain new boarding cards is not, as a 
rule, a deciding factor. Those circumstances are not connected with the objective 
characteristics of the flight as such. They can be attributable to inaccurate 
classifications or to factors obtaining in the airport concerned or, yet again, they 
may be unavoidable given the waiting time and the fact that it is necessary for the 
passengers concerned to spend the night in a hotel (see judgment of the Court of 
Justice of 19 November 2009 – C-402/07 and C-432/07, paragraph 37). Nor, as a 
rule, is it conclusive that the composition of the group of passengers who initially 
held reservations is essentially identical to that of the group subsequently 
transported. Indeed, as the delay grows longer by reference to the departure time 
originally scheduled, the number of passengers in the first of those groups may 
decrease because some passengers have been offered re-routing on another flight 
and others, for personal reasons, have decided not to take the delayed flight. 
Conversely, to the extent that seats have become available on the flight for which 
the booking was made, there is nothing to prevent the carrier accepting, before 
departure of the plane which is delayed, additional passengers (see judgment of 
the Court of Justice of 19 November 2009 – C-402/07 and C-432/07, 
paragraph 38). 
In addition, the European Commission’s Interpretative Guidelines on the Air 
Passenger Rights Regulation of 15 June 2016 (Commission Notice 2016/C 
214/04) state, in paragraph 3.2.2, with regard to a changed flight number: 
‘Without prejudice to paragraph 3.3.1 below and in order to avoid that air carriers 
present a flight as continuously “delayed” instead of “cancelled” it was considered 
useful to highlight the distinction to be made between a “cancellation” and a 
“delay”. In practice, although a flight may generally tend to be considered as 
cancelled when its flight number changes, this might not always be a determinant 
criterion. Indeed, a flight may experience such a long delay that it departs the day 
after it was scheduled and may therefore be given an annotated flight number (e.g. 
XX 1234a instead of XX 1234) to distinguish it from the flight of the same 
CONDOR FLUGDIENST 
 
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number on that subsequent day. However, in this case, it could still be considered 
as a delayed flight and not a cancellation. This should be assessed on a case-by-
case basis.’ 
Overall, the court seised must therefore determine in each individual case on the 
basis of the individual circumstances whether a change to the departure time of a 
scheduled flight constitutes a cancellation or a delay. In that regard, according to 
the case-law of the Court of Justice, criteria perceived by the passengers 
themselves, such as the delay as such, the composition of passengers and 
particularities of the check-in process are of only secondary importance and focus 
should rather be on replanning in respect of the organisation of the flight. 
On the basis of those principles, according to the facts of the case and matters at 
issue as they currently stand, it must be assumed that at issue in the present case is 
a long delay. Although the flight was operated with a different flight number 
(DE1517A), this was due to the fact that a flight with the flight number DE1517 
was already scheduled for the following day. The aircraft and crew remained the 
same. 
(c) However, a right to compensation could be precluded by the fact that the 
assignor did not take that postponed flight. 
(aa) It is disputed whether the right to compensation in the event of a delay in 
arrival of more than three hours also exists if the passenger is aware of the long 
delay to the flight and no longer takes it, for example because the flight can no 
longer serve the purpose of the journey. 
One view is that the right to compensation cannot be denied because the 
passenger – unlike the delayed passenger – did not have to ‘suffer’ any waiting 
time at the airport, since the inconvenience of the delay to be compensated for 
(unnecessary waiting time, increase in travel time) is the same for both 
passengers. For the passenger who no longer takes the booked flight, the harm is 
comparable to that suffered after a flight cancellation (see BeckOK 
Fluggastrechte-VO/Hopperdietzel, 32nd Edition, date: 01.10.2024, 
Fluggastrechte-VO Article 6 paragraph 49-50a). 
On 27 November 2023, the Vilniaus apygardos teismas (Regional Court, Vilnius, 
Lithuania) referred a question to the Court of Justice for a preliminary ruling on 
whether a passenger who refused to take a flight that was delayed by at least five 
hours and for whom that flight was no longer serving any purpose was entitled to 
compensation. In the event that the Court of Justice answers that question in the 
affirmative, the court has asked the additional question as to which conditions 
must be met for such a passenger to be entitled to compensation or whether such a 
passenger is entitled to compensation irrespective of the reason why the passenger 
refused to take a flight that was delayed by at least five hours. The proceedings 
were brought before the Court of Justice as Case C-716/23 – Skycop v Ryanair, 
REQUEST FOR A PRELIMINARY RULING OF 22. 1. 2025 – CASE T-133/25 
 
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but have since been removed from the register without a decision on the matter. 
The same applies to Case C-648/19, which dealt with a similar issue. 
(bb) In so far as the defendant considers that there is no need to refer the case to 
the Court of Justice of the European Union in the light of its judgment of 
24 January 2024 in Case C-474/22, Laudamotion GmbH v flightright GmbH, this 
should be the case only if the assignor had not presented herself for check-in at the 
airport in good time. The assignor in the present case – unlike in Case C-474/22 
decided by the Court of Justice – presented herself for check-in at the airport in 
good time, but did not take the flight that was postponed at 21:30 local time until 
the following morning. 
The judgment of the Court of Justice of 25 January 2024 in Case C-54/23, in 
which the passenger presented himself on time for check-in, was also based on a 
different situation. In that case, the traveller, having been aware of the long delay 
in arrival, booked an alternative flight enabling him to arrive at his destination 
with a delay of less than three hours. 
4. Nothing has been submitted or is apparent to discharge liability in accordance 
with Article 5(3) of the Air Passenger Rights Regulation. 
III. 
[…]