The European Court on: ‘When is a flight cancelled?’ (Rodriguez I)

Your Air Passenger Rights at hand

when you need them

Air Passenger Rights Book
Air Passenger Rights App
Passagiersgids

In my first posts on this blog, I discussed the Advocate General Sharpston’s Opinion in the Rodriguez case (29 June, 1, 3, and 8 July). On 13 October 2011, the European Court followed her Opinion, thus further clarifying and strengthening the rights of air passengers. The Court's decision concerns two topics: cancellation (this post) and compensation (next post).

The case was about an Air France flight from Paris to Vigo (Spain) that took off as planned, but returned to Paris a short time later due to a technical problem. The plane did not proceed any further and all passengers were rebooked onto alternative flights, most on flights that only departed the following day. Air France did not offer the passengers meals or hotel accommodation. Some of the passengers were rebooked on a flight to Oporto and had to take a cab to Vigo (90 miles). The airline refused to pay for the costs of the cab (€ 170, £150).

Passenger: My flight was cancelled and I need a hotel room for me and my two children.

Air France: Je suis désolé, but your flight was not cancelled.

P: Excusez-moi? Our flight returned to the airport and here we are again!

AF: This doesn’t mean your flight was cancelled.

P: Why not?

AF: Because the flight took off.

P: Yes, but we're back and didn’t get to our destination.

AF: Madame, the European Regulation only requires us to get you in the air, not to get you to your destination. And, à propos, did we ever say the flight was cancelled?

P: But if it wasn’t cancelled, then what the hell was it?

AF: I don’t know. That’s not my business. My business is to reject passenger claims.

P: So you don’t offer us accommodation for the night?

AF: Of course I do. This wonderful airport is all yours so please find yourself a nice spot on the floor. I’m sure your children will love it.

In short, Air France argued that a flight could only be cancelled if it did not take off at all. As the flight did take off, the airline said it was not obliged to assist or compensate the passengers under the European Regulation.

In the European Court, it was not Air France that argued its case because it was late with submitting its observations. Their interests were duly represented by ... the French and British governments. In the European Court, governments often act as lobbyists for their national airlines, identifying them with their ‘national interests’, and consequently considering consumer rights as not being in the national interest.

Not surprisingly, the European Court wiped the floor with the airline’s/governments’ arguments. It said that a flight is not only cancelled if the aircraft fails to take off at all, but also if the aircraft takes off but, for whatever reason, returns to the airport of departure where the passengers are transferred onto other flights.

How did the Court reach its conclusion? The Regulation defines a cancellation as ‘the non-operation of a flight which was previously planned and on which at least one place was reserved’. This definition begs the question what the term ‘flight’ means. When can you speak about the non-operation of a flight?

The Court answered this question in two steps. First, it repeated that a flight consists of air transport performed by an airline that fixes its itinerary (Emirates Airlines, paragraph 40). Second, it recalled that the itinerary is an essential element of the flight, as the flight is operated in accordance with the carrier’s pre‐arranged planning (Sturgeon, paragraph 30).

The Court then considered (par. 28) that ‘itinerary’ means: the journey to be made by aircraft from the airport of departure to the airport of arrival according to a fixed schedule. So, for a flight to be operated the aircraft must have left in accordance with the scheduled itinerary and have reached its destination as appearing in the itinerary. If the latter is not the case, the flight cannot be considered as having been operated. A decision of the airline to cancel the flight is not necessary. For a flight to be cancelled, it is sufficient that the passenger’s original flight planning has been abandoned.

This implies that the focus must be on the predicament of the individual passenger, not on the predicament of the aircraft (oops, not exactly the way many airlines tend to think). 

The Court’s decision also implies that the passengers’ flight was cancelled so they were entitled to meals and a hotel, regardless of the reason for the cancellation (Air Passenger Rights, p. 33).

The reason for the cancellation is only relevant to determine a passenger’s right to compensation (€ 250 for this short haul flight). A passenger is not entitled to compensation if the airline proves that the cancellation is caused by extraordinary circumstances (Air Passenger Rights, p. 35-37). It is now for the referring Spanish court to decide on the facts whether this was the case for the cancelled Air France flight to Vigo.

Make sure you have your Air Passenger Rights at hand when you need them

Order the Air Passenger Rights Book

Or download the Air Passenger Rights App