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PI and Civil Litigation

Law - practice - procedure

14 NOV 2013

Does your flight ‘arrive’ on touchdown or when you are able to disembark? A difficult practical question of considerable importance in air passenger delay claims.

Does your flight ‘arrive’ on touchdown or when you are able to disembark? A difficult practical question of considerable importance in air passenger delay claims.

German Wings v Henning C-452/13

Re. Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights ("the Denied Boarding Regulation")

This is one of the latest cases on the Denied Boarding Regulation to ‘wing' its way to the CJEU for a preliminary ruling. The succinct issue in this case is: What is the relevant time for the term "time of arrival" used in the Regulation. With the case yet to be heard, this article considers the options open to the CJEU.

The Facts

Ronny Henning is an Austrian citizen who booked a flight on a Germanwings flight from Salzburg, Austria to Köln/Bonn in Germany.

The facts have been little reported but it seems that the flight had a scheduled departure time of 13:30 and an arrival time of 14:40.

The flight was delayed. It left Salzburg at 16:45, touched down on the runway in Köln/Bonn at 17:38, pulled into its parking position at 17:43 and shortly thereafter the doors opened.

Mr Henning claimed that the relevant time of arrival was the time the aircraft's doors opened. This was over 3 hours after the scheduled arrival time and so he was entitled to compensation under the Regulation.

Germanwings GmbH disagreed. They said the relevant time is the ‘touchdown' landing time which was within 3 hours of the scheduled arrival time. Thus Mr Henning was not entitled to compensation.

The Issues

The Landesgericht Salzburg has referred the question:

"What time is relevant for the term ‘time of arrival' used in Articles 2, 5, 6 and 7 of Regulation (EC) No 261/2004 ....."

The options proposed are:

(a) the time that the aircraft lands on the runway (‘touchdown'),

(b) the time that the aircraft reaches its parking position and the parking brakes are engaged or the chocks have been applied (‘in-block time'),

(c) the time that the aircraft door is opened,

(d) a time defined by the parties in the context of party autonomy.

Likely guiding principles

The Preamble to the Denied Boarding Regulations includes the following:

"Whereas:

(1) Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.

(2) Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers."

The twin aims of ensuring a high level of consumer/passenger protection and of compensating for inconvenience have underpinned CJEU decisions in this area to date, together with a third aim of ensuring equality of treatment between passengers (see, e.g. Sturgeon v Condor C-402/07 & C-432/07 and Air France SA v Folkerts C-11/11).

There's no reason to doubt that these considerations will weigh heavily on the CJEU in Henning.

Time of arrival

Now on to the options.

Option (d) is the most curious. It imports contractual concepts of party autonomy into an area of law which the CJEU has repeated emphasised is about consumer protection. Allowing parties to determine the point at which time of arrival is measured is also likely to lead to unequal treatment between passengers on different flights, something which the CJEU is also unlikely to approve of.

Germanwings' contention that the time of arrival is the landing/touchdown time - option (a) - conforms to current practice. Few passengers would expect to turn up at the gate at the departure time and find their flight to be sitting there. The departure time is the take off time. Similarly, passengers are used to reading arrivals information screens advising that the flight has arrived, i.e. it has landed.

But the CJEU rarely seems to consider current practice or business sense. It favours community autonomous interpretations and, as emphasised above, its focus is upon ensuing a high level of consumer protection and compensating for inconvenience. So what would best achieve these ends?

As the Court said in Air France v Folkerts, the inconvenience caused by irreversible delay materialises on arrival at the final destination. In other words, the inconvenience arises out of the impact of delay on the subsequent parts of the journey / blocks of time. These subsequent journeys or blocks of time are adversely affected because the flight was delayed.

It is extremely difficult to second guess the CJEU, but for what it's worth the author's instinct is that the CJEU will opt for (c): when the aircraft door is opened. This is the end of the flight and the start of the next block of time. It's also the first point at which passengers are free to continue their journey. Option (b) would still leaves room for the possibility of delay occurring between ‘in-block time' and the time when the door is opened and passengers are free to disembark.

One thing, though, is certain: the open-ended nature of drafting of EC regulations is again readily apparent. Given the importance of this Regulation to the air passenger industry and consumers alike, it is likely that the decision in this case will not represent the last word on the subject.

Helen Pugh

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