The Court of Justice of the European Union, in its judgement delivered on 22 April 2021 in case C-826/19 (WZ / Austrian Airlines AG), duly clarified the exact scope of the obligations incumbent on airlines in case of diversion of a flight to a nearby airport, serving the same city or region as the airport for which the booking was made[1].
The case originates from the claim brought by a passenger before the Bezirksgericht Schwechat (District Court of Schwechat, Austria) against Austrian Airlines, seeking an order requiring the airline to pay him a sum by way of compensation under Regulation (EC) 261/2004[2].
More specifically, the Passenger purchased - by making a single booking with Austrian Airlines - a journey consisting of two flights to take place on 21 May 2018, the first between Klagenfurt (Austria) and Vienna (Austria), scheduled to depart at 18:35 and arrive at 19:20, and the second between Vienna and Berlin (Germany), scheduled to depart at 21:00 and arrive at 22:20 at Berlin Tegel airport.
However, due to adverse weather conditions, the second of the two flights took off from Vienna airport at 22:07 only, and, since it was unable to land at Berlin Tegel airport because of the prohibition on night flights in force, was diverted to Berlin Schönefeld airport, located in the Land of Brandenburg (Germany), near the Land of Berlin (Germany), where it landed at 23:18, without moreover the airline having offered any complementary transport to reach the original destination.
The claim raised in court by the Passenger is therefore based on two circumstances: (a) delay of the flight upon arrival and (b) failure to offer complementary transport from Berlin Schönefeld airport to Berlin Tegel airport.
By judgment of 24 June 2019, the district court dismissed the action, holding, inter alia, that the diversion of the flight at issue in the main proceedings did not constitute a significant change to the flight itinerary.
After the case was brought to appeal, the Landesgericht Korneuburg ((regional) court of the Land, Korneuburg, Austria) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
First, the Court clarified that the diversion of a flight to an airport serving the same town or region does not confer on a passenger entitlement to money compensation for cancellation of the flight. Such conclusion is based on the principle of equal treatment, so there can be no equivalence between the case under examination and the different case of cancellation, which is certainly more serious.
The Court's statement regarding the “close proximity” of airports is particularly interesting: in order to be able to hold that the alternative airport serves the same city or region, it does not need to be situated in the territory (from an administrative point of view) of the same city or region where the airport for which the booking was made is located. What is important is the close physical and geographical proximity to said territory. Therefore, in the case at hand, the proximity of the airports cannot be questioned, as they are located in the same territory, although administratively pertaining to different areas (Land of Berlin and Land of Brandenburg)[3].
By contrast, a passenger is entitled to a flat-rate compensation payment if he/she reach his/her final destination, i.e. the destination airport for which the booking was made or another nearby destination agreed with the passenger, with a delay of three hours or more beyond the original planned arrival time.
According to the Court, for the purposes of determining the extent of the delay in arrival incurred, it is necessary to take as a reference the time at which the passenger actually reaches, at the end of the transfer, either the airport for which the booking was made or, as the case may be, another close-by destination agreed with the operating air carrier and not, therefore, the time of arrival at the alternative airport.
Therefore, only if the flight diversion event causes a delay of three hours or more beyond the original planned arrival time, the passenger will be entitled to claim the flat-rate compensation under Regulation (EC) 261/2004.
Finally, the Court specified that the airline must on its own initiative offer the passenger to bear the cost of transferring him/her either to the destination airport for which the booking was made or, as the case may be, to another close-by destination agreed with the passenger. If the airline fails to comply with its obligation to bear such cost, the passenger will be entitled to be reimbursed the amounts incurred by him/her which, in the light of the specific circumstances of the case, prove necessary, appropriate and reasonable to make up for the air carrier’s shortcomings. Breach of that obligation will however not confer on the passenger a right to flat-rate compensation.
All the above leads to recognising the importance of the aforementioned CJEU ruling, which, also in order to prevent proliferation of disputes, makes it very clear that diversion to a nearby airport can give grounds for flat-rate compensation only in the event of a delay at final destination of more than three hours.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact Filippo Di Peio.
[1] “Diversion” means the detour of a flight to an airport other than the destination airport, for objective reasons not attributable to the carrier (e.g., poor weather conditions, airport closure).
[2] Such Regulation establishes common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. More specifically, in case of delay, the Regulation determines the flat-rate compensation payable as follows:
- EUR 250 for all (intra-EU and international) flights of 1,500 kilometres or less;
- EUR 400,00 for all intra-EU flights of more than 1,500 kilometres, and for all other flights between 1,500 and 3,500 kilometres; and
- EUR 600 for all other international flights of more than 3,500 kilometres.
[3] According to such principle, for example, the airports of Linate and Parma might be considered to be nearby each other, even if they are located in different administrative regions.
