Mere diversion of flight to nearby airport does not entitle passengers to lump-sum compensation

On 22 April 2021, the European Court of Justice (the “Court”) delivered its latest judgment in a series of European judgments relating to air passenger rights in the names of WZ v Austrian Airlines AG (C-826/19).

It is not the first time that the Court was requested to interpret the scope and limitations of a number of Articles in Regulation (EC) No 261/2004 relating to the rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (the “Air Passenger Rights Regulation”). Case C-826/19, which refers to a re-routing of a flight, follows from a preliminary ruling request from the Regional Court, Korneuburg, Austria (the “Regional Court”).

Background to the proceedings before the Austrian Court

WZ made a reservation with Austrian Airlines for a trip consisting of two connecting flights on 21 May 2018. The first flight from Klagenfurt Airport to Vienna International Airport, and then a second flight from Vienna International Airport to BerlinTegel Airport (Germany). The second connecting flight was scheduled to depart from the Vienna Airport a few hours after arrival of the first flight.

Due to prevailing weather conditions, the flight to Berlin-Tegel Airport was delayed beyond the latest time permitted under the night flying restrictions in force at the airport in question. Given the circumstances, Austrian Airlines diverted the flight in question to Berlin Schönefeld Airport, which is outside the city of Berlin, in the Land of Brandenburg. The diversion of the flight caused WZ to be not only delayed by 58 minutes, but also inconvenienced, as the airport of arrival was further from his home, which in turn meant that the journey home took longer.

WZ instituted proceedings before the District Court, Schwechat, Austria against the air carrier for €250 in compensation pursuant to the Air Passenger Rights Regulation. WZ based his claim on the fact that his arrival in Berlin was delayed, and that the air carrier failed to offer him alternative transportation from Berlin Schönefeld Airport to Berlin-Tegel Airport. In its counter arguments, the air carrier argued that the flight was delayed by less than an hour, that WZ had been able to return home without any difficulty, and that the delay was caused due to ‘extraordinary circumstances’.

The District Court dismissed WZ’s claims and declared that the diversion of the flight did not constitute a significant change to the flight itinerary, and that the flight could not be regarded as having been cancelled. The District Court also noted that the duration of the delay, as stipulated in the Air Passenger Rights Regulation, was not three hours or more. Due to the outcome of the proceedings before the District Court, WZ brought an appeal before the Regional Court.

Before adjudicating over the proceedings, the Regional Court asked the Court to interpret and clarify the limitations of several Articles within Air Passenger Rights Regulation.

Re-routing to an alternative airport as provided for in the Air Passenger Rights Regulation

Article 8(3) of the Air Passenger Rights Regulation provides that, where a flight is diverted to an airport alternative to that for which the booking was made but which serves the same town, city or region, the operating air carrier is to bear the cost of transferring the passenger from that alternative airport of arrival either to that for which the booking was made or to another close-by destination agreed with the passenger.

Referral to the Court

The Regional Court, by means of its request for the preliminary ruling by the Court, sought to ask the Court to interpret the Air Passenger Rights Regulation and to ascertain (i) whether the case is to be regarded as one of cancellation or of delay, or as falling into a distinct category; (ii) whether the air carrier can rely on extraordinary circumstances, within the meaning of the Air Passenger Rights Regulation, affecting a flight prior to that taken by the passenger, and (iii) whether the air carrier is required to pay compensation for breach of the obligations to provide assistance and care which are incumbent on it.

In its judgment, the Court, concurring with the opinion of Advocate General Pikamae, decided that the general rule is that the diversion of a flight to an airport serving the same city, town, or region does not entitle the passenger to the same type of compensation offered as for a cancelled flight. In the alternative, and in accordance with Article 8(3) of the Air Passenger Rights Regulation, the air carrier must on its own initiative, offer to bear the cost of transferring the passenger either to the intended airport or to another mutually agreed nearby destination. The Court clarifies that -

“In order for the airport of substitution to be regarded as serving the same town, city or region, that airport must not necessarily be situated in the same territory (in an administrative sense) as the town, city or region in which the airport for which the booking was made is situated. What matters is that it is in close proximity to that territory.”

By contrast, the passenger, as an exception to the general rule stipulated above, is entitled to flat-rate compensation where the same passenger reaches his or her final destination, that is either the destination airport for which the booking was made or another close-by destination agreed with the passenger, three hours or more after the original planned arrival time. For the purposes of calculating such delay, the Court must consider the onward journey from the arrival airport to the intended airport or mutually agreed destination.

The Court clarified that for the air carrier to be released from its obligation to pay compensation to passengers in the event of a long delay in arrival of a flight, the air carrier may rely on an extraordinary circumstance which affected not that delayed flight but an earlier flight operated by that air carrier by means of the same aircraft, and this provided that there is a direct causal link between the occurrence of that circumstance and the long delay of the later flight.

The Court further clarified that it is for the air carrier to offer, on its own initiative, to bear the cost of transfer either to the destination airport for which the booking was made or, where appropriate, to another close-by destination agreed with the passenger. If the air carrier fails to comply with its obligation to bear that cost, the passenger is entitled to reimbursement of the sums expended which are necessary, appropriate, and reasonable to remedy the failure of the air carrier.

The Court, however, made it abundantly clear that the failure of an air carrier to bear the cost of transfer does not in any way entitle the passenger to the flatrate compensation for cancelled flights which could range from €250 to €600.

Concluding remarks

Once again, the Court was called upon to provide further clarity as to the extent of the scope of the Air Passenger Rights Regulation. As we have seen in recent years, the Court has, on numerous occasions, continued to clarify the scope and application behind the Articles of the said Regulation and this to strike a fair balance between the interests of the air carrier and that of the passengers.

With all of this in mind, this particular judgement leaves much to be desired and this due to the fact that whilst the Court does extend the definition of an alternative airport to one which is of ‘close proximity’, it then failed to provide the necessary parameters of the ‘close proxim

ity’ terminology and leaves it up to practitioners to argue the same before the local courts.