When Is My Flight Late? Henning v Germanwings in The ECJ (CJEU)

A flight has officially arrived at its destination only when at least one of its doors opens, the European Union’s highest court said Thursday in a judgment that will speak to the heart of any passenger who’s ever had his flight delayed by hours (and hours and hours).

The ruling from the European Court of Justice is significant in the EU, where passengers are entitled to €250 in compensation if a flight is delayed by more than three hours (thanks to a previous judgment from the ECJ). So put yourself in the shoes of Ronny Henning, who was flying from Austria to Germany on Germanwings, the budget subsidiary of Lufthansa AG, in May 2012. Taking off from Salzburg, the plane touched down at the Cologne/Bonn airport two hours and 58 minutes after its scheduled arrival. By the time it reached its parking position, the delay was three hours and three minutes, and the doors opened shortly afterward.

Mr. Henning went to claim his  €250, but soon found himself in court with Germanwings, which argued that it had made it to Cologne/Bonn with a delay of less than three hours, given the moment the plane had touched down on the tarmac. The Austrian court dealing with the case wasn’t sure what moment should count as a flight’s actual arrival time and asked the ECJ for a ruling on the matter.

And it’s in this answer where delayed passengers the world over may feel like the EU judges have actually understood them, homing in on the interruption (and claustrophobia?) that comes with being stuck on an airplane (emphasis added):

“During a flight, passengers remain confined in an enclosed space, under the instructions and control of the air carrier, in which, for technical and safety reasons, their possibilities of communicating with the outside world are considerably restricted. In such circumstances, passengers are unable to carry on, without interruption, their personal, domestic, social or business activities. Although such inconveniences must be regarded as unavoidable as long as a flight does not exceed the scheduled duration, the same is not true if there is a delay, in view, inter alia, of the fact that the passengers cannot use the ‘lost time’ to achieve the objectives which led them to choose precisely that flight. It follows that the concept of ‘actual arrival time’ must be understood as the time at which such a situation of constraint comes to an end.”

The “lost time” doesn’t come to an end when the plane has touched down or has reached its parking position “as the passengers continue to be subject, in the enclosed space in which they are sitting, to various constraints,” the court continued. Instead, a flight can be considered to have arrived at “the time at which at least one of the doors of the aircraft is opened, the assumption being that, at that moment, the passengers are permitted to leave the aircraft,” it said.

Of course, not everyone was happy with the ECJ’s ruling, including the Association of European Airlines, which said it puts airlines at risk of having to pay for delays they didn’t cause. “It happens on a daily basis at airports that aircraft doors can’t be opened because a ground handler is late with stairs or the bridge operator is late,” an AEA spokesman said. Airlines, which rely on outside vendors for such services, have little choice is selecting ground handling service providers because the business is regulated.

The ruling reinforces the need for the EU to review its passenger rights regulations, the spokesman said. The industry has called for such an overhaul for some time.  The current version makes airlines liable for almost everything that can go wrong with a flight even when the carrier isn’t responsible, he said.

Germanwings itself seemed less upset. “Germanwings welcomes the verdict of the European Court of Justice,” said spokesman Heinz Joachim Schöttes. “It clarifies an ambiguity that had plagued the interpretation of applicable travel law for a long time. Legal certainty has now been established for everyone.”

Courtesy WSJ

Anna Roffey

BPTC Grad.

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