28
Jan2022

The flight will arrive more or less on time – request for preliminary ruling regarding Regulation (EC) No. 261/2004 Admitted

If a flight is canceled by an air carrier, passengers may claim compensation from the operator if the conditions laid down in Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, are met.

One of the conditions to be met is to demonstrate compliance with Article 5 (1) (c) (iii) of Regulation (EC) no. 261/2004 which provides:

In case of cancellation of a flight, the passengers concerned shall have the right to compensation by the operating air carrier unless they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no less than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.

In a recent case pending before the Cluj Court of Appeal, handled by our law firm, we requested conceding of compensation provided by Regulation 261/2004 as a result of a flight cancellation, with route Cluj-Bucharest, provided by the air operator TAROM, which was later re-routed by flight Cluj-Iași-Bucharest.

Essentially, we invoked Article 5 (1) (c) (iii) in conjunction with Article 7 (1) (a) supplied by Regulation no. 261/2004 in order to receive compensation.

The Cluj Court of Appeal questioned the need to clarify the phrase ” no less than one hour before the scheduled time of departure” of the current text of the Regulation. The court considers the existence of an inaccuracy in the official translation, given the different versions of the phrase no less than one hour in other languages. This phrase is vital for the economy of the legal text and for assessing if the conditions set out in Regulation 261/2004 are met.

The adequacy of the text is fundamental in order to verify the condition set by Article 5 (1) (c) (iii) of the Regulation, according to which the operator is exempted from paying compensation if he offered passengers an alternative flight that meets the conditions imposed by the Regulation in order to reach final destination.

Specifically, the Romanian language version of the exemption stipulates that the flight departs no less than one hour before, a wording that includes the situation in which the new flight has a departure date much earlier than the initial one. In contrast, other language versions tend to contradict this statement.

From this standpoint, we would like to indicate the existing versions in comparative law at the time being:

English version:  the wording is equivalent to no more than;

German version:  nicht mehr which translates as no more than;

Italian version:  non più di has the same meaning;

Spanish version: no más de has the same meaning;

French version: au plus tôt une heure avant l’heure de départ states that the flight must be carried out at the earliest one hour before departure time;

Hungarian version: legfeljebb egy órával indicates that the departure time should be up to an hour before the scheduled time;

Practically all these versions place the time of new departure no less than one hour before the scheduled time of departure.

Verily, this is also the rationale of the text, in respect of hypotheses that can be applied when the original flight is unexpectedly canceled:

  1. Either the flight is delayed, in which case Regulation no. 261/2004, penalizes the delay of more than three hours, which then equivalates with a flight cancellation in accordance with the Court of Justice of the European Union;
  2. Or, the flight is offset, in which case the time limits are even more stringent: the flight cannot be anticipated by more than one hour, and the arrival at the destination cannot tardy more than two hours; in essence, the same rule of safeguarding the passengers time is maintained, acknowledging that the temporal mutations occurred cannot exceed three hours from initial departure time.

Concerning the interpretation of the provision in known European case law, we point out that the case law supports the version in which the flight should take place no more than one hour before the scheduled time of departure. Thus, the German courts have pointed out that the exemption provided by point (iii) is not met if the new flights actual departure time takes place later than the original time (case X ZR 73/16, ruled by the Frankfurt Court of Appeal, stated that even though the new flight was scheduled 15 minutes before the initial one, it left a few hours later)

On the other hand, the Austrian courts have interpreted the provision as meaning that an alternative flight departing more than one hour before the scheduled flight does not meet the disputed condition, as it is likely to create additional inconveniences and the purpose of the exemption is to encourage companies to protect passengers from being subjected to long waiting times (Case 22R284/20z ruled by the Korneuburg Tribunal). Therefore, in interpreting the same phrase (nicht mehr als eine Stunde), the courts described the one hour period as starting one hour earlier than the time of the initial departure. In the light of the last decision, the Romanian translation of the phrase at the no less than is inadequate.

In order to clarify these inaccuracies, the Cluj Court of Appeal ordered the referral to the Court of Justice of the European Union with the request for a preliminary ruling on the following question:

The provisions of Article 5 (1) (c) (iii) of Regulation (EC) no. 261/2004 must be interpreted:

a) in the sense that the operating air carrier is exempted from paying compensation when the passengers concerned are informed of the cancellation less than 7 days before the scheduled time of departure and are offered re-routing, allowing them to depart no less than one hour before the scheduled time of departure and to reach their final destination less than 2 hours after the scheduled time of arrival? or, on the contrary

b) in the sense that the operating air carrier is exempted from paying compensation when the passengers concerned are informed of the cancellation less than 7 days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than 2 hours after the scheduled time of arrival?.

We will observe with great interest and confidence the solution that the Court of Justice of the European Union will be adopting.

This article has been prepared for the Costaș, Negru & Asociații website by Att. Sara Borghesi, affiliated with the Arad Bar Association.

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