In two judgments issued on 25 January, the CJEU addressed questions related to the passengers’ right to claim compensation for a long flight delay. The unusual aspect of both cases is that in neither of them passengers actually experienced the delay, having decided to forego the delayed flight. Unsurprisingly, the CJEU decided in both cases that they could not then claim compensation from Regulation 261/2004.
C-474/22 – Laudamotion
In this case, a passenger in expectation of the delay, which would have led him to not make the business meeting he was to travel for, decided to stay home rather than go to the airport. His flight arrived at the final destination with a delay of 3 hours 22 minutes.
The CJEU emphasised that the loss of time that the compensation aims to alleviate is „not damage arising out of delay” but an inconvenience (para 27). All passengers experience it the same way, which allowed to standardise the compensatory measure. Contrary, however, to cancelled flights in case of a flight delay to be eligible for claiming compensation passengers need to present to check-in at the airport (para 30). In this case, the passenger was then not eligible for compensation as he did not present himself for check-in. However, the Court reminded that the passenger could claim further compensation pursuant to Art. 12 Regulation 261/2004 for individual damage, e.g., arising due to having missed the business meeting (paras 32-33).
C-54/23 – Laudamotion and Ryanair
Here, the passenger avoided the flight delay of 6 hours by booking themselves on an alternative flight, which arrived at the final destination with a delay of fewer than 3 hours.
The CJEU focuses on the fact that the passenger did not experience the inconvenience of a long delay, the loss of time, and therefore is also not eligible for the compensation (para 22). The Court notes that the passenger could have experienced an inconvenience as they had to find an alternative means of transport themselves, but that is not a serious inconvenience pursuant to the Court (para 23). It should be mentioned that also in this case the passenger received some form of redress as they could claim reimbursement for the flight ticket pursuant to national law.
Both cases then limit the application of the Regulation 261/2004 but in a way consistent with the objective of high level of passenger protection. Passengers are not left without a recourse for claiming compensation for individual damages.
