EU 261: German Supreme Court rules on liability for delay of re-routing flight

The German Supreme Court (BGH) ruled that an operating carrier could be liable, under Regulation (EC) No 261/2004, for cancelling its initial flight, if the re-routing flight offered is delayed, with the result that the passengers reach delayed their final destination, even if the re-routing flight is operated by another carrier.

The claimants had booked a flight, to fly from Frankfurt to Sydney via Singapore. Both legs of the flight were to be operated by the same carrier. The flight of the first leg (Frankfurt-Singapore) was cancelled on the day of departure, so the initial carrier offered re-routing with another operating carrier, under Art. 5(1)(c)(iii) of the Regulation 261/2004. The re-routing flight was scheduled to depart from Frankfurt at about the same time and reach Singapore at about the same time as the flight canceled. However, the re-routing flight departed with 16 hours delay, so the claimants reached their final destination with 23 hours delay. The claimants sued for compensation of 600€ each, under Arts 5(1)(c)(iii) and 7(1) of the Regulation.

The court of first instance rejected the claim, but in appeal the claimants prevailed. The defendants applied to the German Supreme Court (BGH) for cassation, yet the cassation was rejected. The BGH found that the operating carrier is liable under the Regulation, if the re-routing flight offered, even if operated by another carrier, fails to enable the passengers to reach their final destination in time, i.e. with less than two hours delay, as foreseen by Art. 5(1)(c)(iii) of the Regulation. According to the judgment, in view of the Regulation’s purpose to protect the passengers, it is irrelevant if the passengers are entitled to compensation by the operating carrier of the re-routing flight, because such possibility may not always be open to the passengers.

The judgment seems, at least, confusing. The Regulation clearly imposes liability on the carrier that operates the flight in question, according to Art. 3(5) thereof. If a flight is cancelled, then its operating carrier should offer reasonable re-routing, to allow passengers to make other arrangements (recital 12 of the Regulation) - failure to do so results in its liability according to Arts 5(1)(c) and 7(1) of the Regulation. Nonetheless, the BGH appears to blur the liability of the initial/ scheduled operating carrier with the liability of the operating carrier of the re-routing flight, assigning to the former the role of the guarantor of the performance of the latter. Moreover, the judgment gives the impression of not precluding passengers from claiming compensation twice: once from the scheduled operating carrier for cancellation, and once from the operating carrier of the re-routing flight for delay (although the amounts to be claimed may differ, depending on the final destination of each flight). The text of the judgment (X ZR 73/16) has not been published yet; however, the BGH has issued a press release (in German).