Airline Liability for Delays: The Court of Justice of the EU Rewrites EC Regulation 261/2004

Abstract

Airlines received an unpleasant Christmas present in 2008, in the form of the Court of Justice’s preliminary ruling in Wallentin-Hermann v. Alitalia, adopting a very strict interpretation of the ‘extraordinary circumstances’ defence to claims for compensation in the event of cancellation of flights under EU Regulation 261/2004. On 19 November 2009, the Court of Justice issued an even more stunning ruling interpreting the Regulation, in the joined cases Sturgeon v. Condor and Böck and Lepuschitz v. Air France, on references from courts in Austria and Germany. After giving some clarification on the distinction between delay and cancellation, the Court held that passengers on flights whose arrival at final destination is delayed by three hours or more are entitled to compensation, even though this is not expressly provided for in the Regulation (unlike in the case of cancellation).