European Court of Justice Extends EU 261 to Compensate Passengers for Connecting Flight Delays and Cancellations

On July 11, 2019, the European Court of Justice (“ECJ”) issued a decision holding that European Union Regulation (EC) No 261/2004 (“EU 261” or the “Regulation”), which entitles certain passengers to fixed compensation for flight cancellations and long delays, extends to connecting flights made on the same reservation.¹

EU 261 provides financial compensation to passengers who are denied boarding or delayed while travelling on a flight operated by an EU-based air carrier or on a flight operated by an air carrier based outside of the EU (a “non-Community air carrier”) that departs from an airport located within the EU.²  If a passenger is improperly denied boarding or if his or her flight is canceled or delayed for more than three hours, EU 261 entitles the passenger to claim compensation for up to EURO 600 from the operating air carrier.³

The recent ECJ decision clarifies that passengers are entitled to the same compensation for the long delay or cancellation of connecting flights that are the subject of a single reservation even if the second of the two connecting flights was performed by a non-Community air carrier from and to a country which is not an EU Member State.

The case under consideration by the ECJ concerned claims by eleven (11) passengers who booked single reservations with the Czech Republic air carrier České aerolinie, a.s. (hereinafter “Czech Airlines”) for transportation from Prague (Czech Republic) to Bangkok (Thailand) via flights connecting in Abu Dhabi (United Arab Emirates).  The first flight from Prague to Abu Dhabi was operated by Czech Airlines and arrived on time.  However, the second flight from Abu Dhabi to Bangkok, which was operated by non-Community air carrier Etihad Airways under a code-share agreement, was delayed in departing from Abu Dhabi and arrived in Bangkok more than 8 hours late.  The ECJ was presented with a single question: whether there is an obligation on a Community carrier to pay compensation to passengers pursuant to EU 261 where the Community carrier, as the contractual carrier, operated the first leg of a flight with a stopover at an airport in a non-Member State, from which, under a code sharing agreement, a carrier which is not a Community carrier operated the second leg of the flight and there was a delay of more than three hours in the arrival at the final destination airport, which arose exclusively in the second leg of the flight.

In considering this question, the ECJ initially noted that a flight with one or more connections that is the subject of a single reservation constitutes a whole flight for the purposes of EU 261.⁴  Further, the Court held that EU 261 applies when passengers depart from an airport located in the territory of an EU Member State, regardless of where the final destination or stopover is located.

In analyzing the facts of the case, the ECJ ruled that Czech Airlines, as the contracting carrier, is required to compensate the passengers under EU 261. The Court reasoned that the obligation to pay compensation to passengers falls on the operating air carrier of the flight concerned.  The Court noted that under Article 2(b) of EU 261, the “operating air carrier” is “an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger.”  The Court determined that Czech Airlines can be categorized as the operating air carrier for the second leg of the trip because “it is undisputed that České aerolinie did perform a flight under the contract of carriage with the passengers concerned.”

Czech Airlines argued that it should not be held liable when the delay occurred during the second of the connecting flights, which was performed by another air carrier.  The ECJ rejected this argument, reasoning that flights with one or more connections that are part of a single reservation must be regarded as a single unit, and therefore “an operating air carrier that has operated the first flight cannot take refuge behind a claim that the performance of a subsequent flight operated by another air carrier was imperfect.”  The ECJ further noted that the second sentence of Article 3(5) of EU 261 states that “where an operating air carrier which has no contract with the passenger performs obligations under this regulation, it is to be regarded as doing so on behalf of the person having a contract with that passenger.” Finally, the ECJ reasoned that the objective of ensuring a high level of protection of passengers, as stated in recital 1 of EU 261, justified its decision. Specifically, the Court held that where connecting flights are the subject of a single reservation and are operated under a code-share agreement, passengers should not have to take account of arrangements made by the carrier they contracted with for the performance of the second of the connecting flights.  Accordingly, air carriers operating in airports located in EU Member States should be aware that they may be liable under EU 261 for the cancellations and delays of a different air carrier.

¹ See ECJ Case C-502/18, CS and Others v. České aerolinie a.s. (July 11, 2019).
² For a more detailed discussion of EU 261, as well as passengers’ attempts to enforce EU 261 in class actions filed in the United States, visit our Publications page at https://condonlaw.com/publications/.
³ See ECJ Case C-629/10, Sturgeon v. Condor, Bock v. Air France (Nov. 19, 2009); ECJ Joint Cases C-402/07 & C-432/07.
⁴ See ECJ Case C-537/17, Wegener v. Royal Air Maroc SA (May 31, 2018).