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On 25 September 2008, an Air France flight from Paris (France) to Vigo (Spanje) took off as planned, but returned to Paris a short time later due to a technical problem. All passengers were rebooked onto alternative flights the following day.
Was this a cancellation? This question asked by a Spanish court will shortly be answered by the European Court. Advocate General Sharpston advised the court to hold that ‘cancellation’ (as defined in Article 2(l) of Regulation 261/2004) indeed covers such a case in which a flight departs but then returns to the airport of departure and proceeds no further.
If the European Court follows this advice, passengers are entitled to compensation of € 250 each unless the airline proves that the technical problem was beyond its control. However, the courts consider technical problems usually within the airline’s control and order the airline to pay compensation (Air Passenger Rights, p. 35-37).
In the legal proceedings, Air France was late with submitting observations to the Court. But they did not have to worry because their interests were duly represented by... the British and French governments. These argued that the event with the Air France flight was not covered by the Regulation. Because, so the UK representative, denied boarding and delay concern situations prior to take-off and therefore cancellation too must be concerned with the situation prior to take-off. No, I did not make this up.
AG Sharpston countered with a similar nonsensical reasoning: 'One might just as well argue that denial of boarding and cancellation involve the passenger not being able to take the flight on which he was booked so that delay too must involve such a situation - which would be nonsensical, since in the event of delay the passenger does take the flight on which he was booked.’
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