Air France v Heinz-Gerke Folkerts and Luz-Tereza Folkerts.
Date: 2013-02-26
16. Mrs Folkerts held a reservation to fly from Bremen to Asunción, via Paris and São Paulo.
17. In accordance with the original planning, Mrs Folkerts’ flight was scheduled to depart from Bremen on 16 May 2006 at 6.30 am and arrive in Asunción, her final destination, the same day at 11.30 pm.
18. The departure of the flight from Bremen to Paris, operated by the company Air France, was delayed and the aircraft took off only shortly before 9.00 am, that is a delay of approximately two and a half hours beyond the scheduled departure time. Mrs Folkerts, who already had her boarding cards for the entire journey on departure from Bremen, did not reach Paris until after Air France’s aircraft scheduled for the connecting flight to São Paulo had already departed. Mrs Folkerts was re-booked by Air France on to a later flight to São Paulo. Because of her late arrival in São Paulo, Mrs Folkerts missed the connecting flight to Asunción originally scheduled. She therefore did not arrive in Asunción until 17 May 2006 at 10.30 am, that is 11 hours after the arrival time originally scheduled.
31. In that connection, it should be noted that the reference, in Regulation No 261/2004, to different types of delay is compatible with Article 19 of the Montreal Convention, that convention being an integral part of the EU legal order (see Case C-344/04 IATA and ELFAA  [2006] ECR I-403, paragraph 36, and Case C-63/09 Walz  [2010] ECR I-4239, paragraphs 19 and 20). Article 19 of the Montreal Convention refers to the concept of ‘delay in the carriage by air of passengers’, without specifying at which stage of such carriage the delay in question must occur.
32. In the second place, it must be noted that the Court has held that when their flights are subject to long delay, that is delay equal to or in excess of three hours, passengers of such flights are entitled to compensation on the basis of Article 7 of Regulation No 261/2004, like those passengers whose original flights have been cancelled and whom an air carrier is not able to offer re-routing in accordance with the conditions laid down in Article 5(1)(c)(iii) of Regulation No 261/2004, given that they suffer an irreversible loss of time and, hence, a comparable inconvenience (see Sturgeon and Others , paragraphs 60 and 61, and Joined Cases C-581/10 and C-629/10 Nelson and Others  [2012] ECR, paragraphs 34 and 40).
33. Since that inconvenience materialises, with regard to delayed flights, on arrival at the final destination, the Court has held that a delay must be assessed, for the purposes of the compensation provided for in Article 7 of Regulation No 261/2004, in relation to the scheduled arrival time at that destination (see Sturgeon and Others , paragraph 61, and Nelson and Others , paragraph 40).
34. The concept of ‘final destination’ is defined in Article 2(h) of Regulation No 261/2004 as being the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight.
35. It follows that, in the case of directly connecting flights, it is only the delay beyond the scheduled time of arrival at the final destination, understood as the destination of the last flight taken by the passenger concerned, which is relevant for the purposes of the fixed compensation under Article 7 of Regulation No 261/2004.
38. Accordingly, the fact that a flight such as that at issue in the main proceedings has not been delayed, as regards the scheduled departure time, beyond the limits set out in Article 6 of Regulation No 261/2004, cannot affect the obligation on air carriers to compensate the passengers of such a flight, provided that the arrival of that flight at the final destination has been delayed by three hours or more.
41. In that regard, it is true that the obligation to pay compensation to the passengers of the flights in question in the fixed amounts laid down in Article 7 of Regulation No 261/2004 entails certain financial consequences for air carriers (see, to that effect, Nelson and Others , paragraph 76).
42. However, it must be emphasised, first, that those financial consequences cannot be considered disproportionate to the aim of ensuring a high level of protection for air passengers ( Nelson and Others , paragraph 76) and, second, that the real extent of those consequences is likely to be mitigated in the light of the three factors set out below.
43. First of all, it should be noted that air carriers are not obliged to pay compensation if they can prove that the cancellation or long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, that is, circumstances which are beyond the air carrier’s actual control (Case C-549/07 Wallentin-Hermann  [2008] ECR I-11061, paragraph 34, and Nelson and Others , paragraph 79).
44. Next, it must be noted that the discharge of obligations pursuant to Regulation No 261/2004 is without prejudice to air carriers’ rights to seek compensation from any person who caused the delay, including third parties, as Article 13 of Regulation No 261/2004 provides ( Nelson and Others , paragraph 80).
45. In addition, the amount of compensation, fixed at EUR 250, 400 and 600 depending on the distance of the flights concerned, may still be reduced by 50% in accordance with Article 7(2)(c) of Regulation No 261/2004, where the delay is – in the case of a flight not falling under subparagraphs (a) or (b) of Article 7(2) – less than four hours ( Sturgeon and Others , paragraph 63, and Nelson and Others , paragraph 78).
46. Lastly, in any event, the case-law shows that the importance of the objective of consumer protection, which therefore includes the protection of air passengers, may justify even substantial negative economic consequences for certain economic operators ( Nelson and Others , paragraph 81, and case-law cited).