What a difference a minute makes: To receive or not receive compensation for a flight delay

In strictly defined instances a passenger has the right to compensation for a flight delay, but the law does not say exactly how the period of the delay should be calculated. The European Court of Justice recently answered this question.

The rights of passengers in the event of cancellation or delay of a flight are governed by the EU’s Air Passenger Rights Regulation (261/2004). For example, in the case of a delay of three hours or more, apart from other rights, passengers may individually demand compensation in the amount of:

  • EUR 250 on a route of up to 1,500 km
  • EUR 400 on any intra-Community route exceeding 1,500 km or beyond the European Community between 1,500 and 3,500 km
  • EUR 600 on other flights.

But the regulation does not define “delay,” how delay should be calculated, or when the delay ends. It may be intuitive to think that a flight delay ends when the plane lands. But landing is a process that can be broken down into several phases, stretching out over a number of minutes in all, such as “touchdown” (when the landing gear reach the runway), “in-block time” (when the aircraft has taxied to its parking position and the parking brakes are engaged or the chocks are applied), when the aircraft doors are opened, when the passengers have left the plane and entered the terminal, or some other time agreed by the parties.

The choice between these or other moments when the flight is deemed to be completed and the delay is over may determine whether the delay is, say, 2 hours and 50 minutes, when the passengers are not entitled to compensation, or 3 hours and 5 minutes, when they are entitled to compensation. The answer is obviously important to the passengers, but it is even more important to the airline. If numerous passengers on a flight carrying dozens or hundreds of passengers demand compensation, the cost can have an impact on the carrier’s bottom line—particularly considering that an airline might have dozens of flight delays in a single month.

This issue arose in a case in which a passenger sought compensation for delay of a Germanwings flight from Austria to Germany of less than 1,500 km. The flight was supposed to depart Salzburg at 1:30 pm and reach the Cologne/Bonn airport at 2:40 pm. But the plane was late leaving Salzburg and touched down at 5:38 pm—2 hours and 58 minutes after the scheduled arrival. The aircraft parked at the gate at 5:43 pm—3 hours and 3 minutes after the scheduled arrival. The doors opened a few moments later.

Passenger Ronny Henning claimed that the plane did not arrive until it was parked and the doors were opened, and therefore he was entitled to compensation for the flight delay. The airline took the view that the delay ended when the plane touched down, only 2 hours and 58 minutes late, and thus the carrier did not owe the passenger any compensation. The court of first instance agreed with the passenger, finding that the flight delay did not end until the aircraft doors opened. The carrier appealed, and the Salzburg Regional Court sought a preliminary ruling from the European Court of Justice to clarify how to calculate the length of the flight delay under the Air Passenger Rights Regulation.

In Germanwings GmbH v Henning (Case C-452/13), the ECJ upheld the position of the court of first instance. In a judgment issued on 4 September 2014, the court found that the flight (and the delay) ends when the passengers are no longer subject to onboard restrictions but can carry on their normal lives. As the court stated: “During a flight, passengers remain confined in an enclosed space, under the instructions and control of the air carrier, in which, for technical and safety reasons, their possibilities of communicating with the outside world are considerably restricted. In such circumstances, passengers are unable to carry on, without interruption, their personal, domestic, social or business activities. It is only once the flight has ended that they are able to resume their normal activities.

“Although such inconveniences must be regarded as unavoidable as long as a flight does not exceed the scheduled duration, the same is not true if there is a delay, since the time by which, in the circumstances described in the preceding paragraph, the scheduled duration of the flight has been exceeded, represents ‘lost time’ in the light of the fact that the passengers concerned cannot use it to achieve the objectives which led them to go at the desired time to the destinations of their choice.”

As the court reasoned, “It is only when the passengers are permitted to leave the aircraft and the order is given to that effect to open the doors of the aircraft that the passengers may in principle resume their normal activities without being subject to those constraints.” This does not happen at touchdown, when the passengers are still confined to their seats and their use of electronic devices is restricted, nor when the plane has parked at the gate, but only when it is possible for the passengers to exit the plane and resume their normal activities without onboard constraints.

Therefore the court held that “the concept of ‘arrival time’, which is used to determine the length of the delay to which passengers on a flight have been subject, corresponds to the time at which at least one of the doors of the aircraft is opened, the assumption being that, at that moment, the passengers are permitted to leave the aircraft.”

The judgment in the Germanwings case is significant to the airline industry because it fills a major gap in European aviation law. The judgment was carefully reasoned but came down in favour of passengers. Nonetheless, the question could be posed whether the decisive factor for determining the actual arrival time in the court’s interpretation—when the passengers can “resume their normal activities”—might be used in the future by both passengers and carriers to attempt to shift this moment to their advantage. For example, a passenger might argue that his normal activities were still limited during the transfer from the tarmac to the terminal, while the airline could counter that when the aircraft parked at the gate nearly all of the restrictions on passengers were removed—they could unfasten their seatbelts, stand, prepare to exit the plane, and use their electronic devices again to contact the outside world.

The reporting judge in the Germanwings case was the Polish judge Prof. Marek Safjan, president of the Ninth Chamber of the European Court of Justice.

Natalia Rutkowska, Aviation Practice and Infrastructure & Transport Practice, Wardyński & Partners