Will giving up on a delayed flight exclude compensation? | In Principle

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Will giving up on a delayed flight exclude compensation?

Since the landmark Court of Justice ruling in 2009 in C-402/07, Sturgeon, it has generally been accepted that when it comes to the right to compensation from an air carrier under the Air Passengers Rights Regulation, a flight delay of more than three hours puts the passenger in the same position as if the flight were cancelled. But in 2024, the Court of Justice held in C-474/22, Laudamotion GmbH v flightright GmbH, that the case is not so clear-cut, and there are somewhat different rights and obligations associated with flight delay than with flight cancellation.

The Laudamotion case involved the delay of a flight from Düsseldorf to Palma de Mallorca in June 2018. One of the passengers decided not to board the plane, as the announced delay of that flight would cause him to miss a business appointment. In the end, the plane arrived at the destination 3 hours and 32 minutes late. The passenger assigned his rights to compensation against the airline (Laudamotion) to a compensation company (flightright).

The German courts hearing the case considered whether a passenger on a flight delayed by at least three hours is required to show up for check-in. If a flight is cancelled, Art. 3(2)(a) of Regulation (EC) 261/2004 expressly exempts the passenger from this obligation. The German court of appeal held that the same rule applied to passengers on delayed flights—a passenger notified of a delay of at least three hours before departure could claim the compensation provided for in Art. 5 and 7 of the regulation, even if they did not show up at the airport.

This ruling was appealed to the Bundesgerichtshof (Federal Court of Justice), which raised doubts due to the passenger’s failure to appear for check-in no later than 45 minutes before the announced departure time, contrary to the express requirements under Regulation 261/2004. Therefore, the Bundesgerichtshof sought a preliminary ruling from the Court of Justice on the following questions:

  1. Does the right to compensation for a delay in a flight of more than three hours after the scheduled time of arrival … require that … the passenger must present himself or herself for check-in at the time indicated by the air carrier, the tour operator or an authorised travel agent, but not later than 45 minutes before the published departure time, or is the case of a long delay in the above sense exempt from that requirement—as in the case where a flight is cancelled?
  2. In the event that the right to compensation is not exempt, on the sole basis of the occurrence of a long delay in the above sense, from the requirement for passengers to present themselves for check-in, does such an exemption apply where the passenger had sufficiently reliable information indicating that the flight would arrive only with a long delay in the above sense?

In response, the Court of Justice held that the regulation “must be interpreted as meaning that, in order to be entitled to the compensation provided for in Article 5(1) and Article 7(1) … in the event of a long delay of a flight, namely a delay of three hours or more after the arrival time originally scheduled by the air carrier, an air passenger must have presented himself or herself for check-in in good time or, if he or she has already checked in online, must have presented himself or herself at the airport in good time to a representative of the operating air carrier.”

The court explained that in light of the principle of equal treatment, the regulation should be interpreted to grant equal rights to passengers of cancelled flights and delayed flights for the purposes of applying the right to compensation, provided that they suffer a loss of time of at least three hours due to the delayed flight. “However, a passenger who did not go to the airport, as appears to be the case with respect to the applicant in the main proceedings, on the ground that he or she had sufficient information to conclude that the flight would arrive at its final destination only after a long delay, has not, in all likelihood, suffered such a loss of time.”

The court further pointed out that “damage caused by the fact of having missed a business appointment must be regarded as individual damage, inherent in the specific situation of the passenger concerned, and therefore cannot be compensated by the award of the compensation provided for in Article 7(1), … which is intended to provide compensation, in a standardised and immediate manner, only for damage that is almost identical for every passenger concerned.”

Therefore, despite the basic equating of the passengers’ right to compensation on cancelled flights and flights delayed by at least three hours, additional conditions must be met—first and foremost, timely arrival at the airport and check-in (unless performed online).

Potential consequences

The practice shows that passengers seeking compensation for flight delays of more than three hours often submit only their airline ticket or their travel contract with a tour operator. In light of the ruling by the Court of Justice in Laudamotion, this approach may prompt the air carrier to assert that the plaintiff has no right to seek compensation, or has failed to prove the claim, leading to dismissal of the case.

According to the general rules of evidence in civil proceedings, it is the plaintiff who bears the burden of proof. Therefore, to prove a claim for compensation, under Art. 3(2)(a), passengers must not only prove that they “have a confirmed reservation on the flight concerned,” but also (except in the case of cancellation), “present themselves for check-in, as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent, or, if no time is indicated, not later than 45 minutes before the published departure time.”

The court did not specify what could be the evidence of a passenger’s presence at check-in. The question arises whether a boarding pass alone will be sufficient evidence to show that the passenger reported for check-in and was ready to travel on the delayed flight, and that they effectively lost at least three hours in arriving at their destination.

In this respect, we can imagine at least three potential situations:

  1. The passenger does not report for check-in at the airport at all, nor check in online.
  2. The passenger checks in (for example online), and thus has a boarding pass, but does not show up at the airport and take the flight.
  3. The passenger checks in, and subsequently does take a delayed flight, but failed to appear at the airport at the originally scheduled time.

In light of the court’s ruling, the first situation is clear: the passenger will not be entitled to compensation. In the second situation, despite having a boarding pass, the passenger will not be entitled to compensation, due to failure to present himself or herself at the airport. But in the third situation, the passenger will probably be entitled to compensation, because if the flight is delayed, appearing at the time that would be required under the original schedule will not fundamentally affect his or her situation. Indeed, the court’s ruling should be read to mean that passengers should show up at the airport at a time suitable for the delayed flight. In this situation, the boarding pass, together with confirmation of the flight, for example in the form of a boarding pass for a return flight (if relevant), could constitute a basis to claim compensation from the air carrier.

The ruling by the Court of Justice is a reminder that passengers’ right to compensation in the event of a long flight delay is primarily intended to compensate for the damage associated with the lost time, when they may also have to wait in less than comfortable conditions. A passenger who learns of the delay and thus decides to give up on the flight voluntarily avoids such damage, and therefore is not entitled to compensation for the delay of a flight they never took.

Looking at the matter from the procedural side, the judgment in Laudamotion suggests that when seeking compensation for a flight delay, passengers must prove that they actually took the flight, or at least were willing to do so.

Agnieszka Kubowicz, Dispute Resolution & Arbitration practice, Aviation practice, Wardyński & Partners