30.1.2010

Official Journal of the European Union

C 24/4

(Joined Cases C-402/07 and C-432/07)

(Air transport - Regulation (EC) No 261/2004 - Article 2(l) and Articles 5, 6 and 7 - Concept of flight ‘delay’ and ‘cancellation’ - Right to compensation in the event of delay - Concept of ‘extraordinary circumstances’ )

2010/C 24/06

Language of the case: German

Referring courts

Bundesgerichtshof, Handelsgericht Wien

Parties to the main proceedings

Applicant: Christopher Sturgeon, Gabriel Sturgeon, Alana Sturgeon (C-402/07), Stefan Böck, Cornelia Lepuschitz (C-432/07)

Defendants: Condor Flugdienst GmbH (C-402/07), Air France SA (C-432/07)

Re:

References for preliminary rulings — Bundesgerichtshof, Handelsgericht Wien — Interpretation of Articles 2(l) and 5(1)(c) of 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 (OJ 2004 L 46, p. 1) — Flight which departed much later than the scheduled time of departure — Distinction between the concepts of ‘delay’ and ‘cancellation’

Operative part of the judgment

1.Articles 2(l), 5 and 6 of 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, must be interpreted as meaning that a flight which is delayed, irrespective of the duration of the delay, even if it is long, cannot be regarded as cancelled where the flight is operated in accordance with the air carrier’s original planning.

2.Articles 5, 6 and 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.

3.Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation or delay of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.

(1) OJ C 283, 24.11.2007.