The Unparalleled Series – flightright GmbH v. American Airlines, Inc – Extending the domain of airline liability through the notion of a “connecting flight”

Author: Ann Bugeja

On the 6^th October 2022, the CJEU decided on a preliminary ruling put forward by the Bundesgerichtshof (German Federal Court of Justice) in the names of flightright GmbH v American Airlines, Inc (Case C-436/21), to obtain clarification on the concept of a “connecting flight” where flights are operated by different operating carriers who do not have a special legal relationship but which flights have, through a travel agency, been amalgamated into a single ticket, whereby a passenger departs from an airport located in a Member State with a third country being their final destination.

Facts of the case

In this case, a passenger concluded a contract with a travel agency to obtain a single electronic ticket for a journey commencing in Stuttgart (Germany) and ending in Kansas City (USA). The first flight from Stuttgart to Zurich was operated via Swiss International Air Lines, whereas the subsequent two flights between Zurich and Philadelphia, and Philadelphia to Kansas City were both operated by American Airlines. Whilst the first two flights ran to schedule, the last flight was delayed by more than 4 hours.

Case before the German Courts

Flightright, a company which provides the necessary legal assistance to air passengers to which the rights arising from such delay had been subrogated, filed a complaint with the German court of first instance in accordance with the applicable provisions of the Regulation. This EU legislation requires airlines to reimburse passengers in the EU for flights which inter alia have been cancelled or delayed. Flightright claimed that in terms of such Regulation, the affected passenger was entitled to €600 as compensation. Both the first instance Court and the appellate Court of the Regional Court of Stuttgart, agreed with the submissions put forward by American Airlines who argued that, since the delayed flight had not departed from an airport situated in an EU Member State, such claim did not fall within the remit of the Regulation.

Submissions made to the CJEU

Flightright appealed this decision to the Bundesgerichtshof who sought clarification from the CJEU on three points, the most imperative being:

“If a travel agency combines connecting flights from different air carriers into one transport operation, charges the passenger an overall price and issues a single electronic ticket for the journey, do these qualify as direct connecting flights within the meaning of Article 2(h) of [Regulation No 261/2004], or does there also need to be a specific legal relationship between the operating air carriers?”

Decision

The CJEU ruled that, under the Regulation, a connecting flight refers to any leg on a journey booked together and does not have to be provided by the same air carrier.

“That is the case when two or more flights were booked as a single unit”

The tickets in this case, which were purchased through a travel agent, were bought together and provided within a single invoice and one reservation number. The court subsequently found that, considering the first flight departed from an EU member state and notwithstanding the delayed flight occurring outside the territory of the EU, the Regulation requiring compensation should still apply. The ruling states that:

“The applicability of that regulation must be assessed with regard to the place of a flight’s initial departure and the place of its final destination.”

The judge held that, any other conclusion would be contrary to the objective of ensuring a high level of protection for passengers, which is primarily the main purpose of this Regulation. In default of this, the Regulation would be limiting the right to compensation in the event that a long delay takes place.

Consequently, though the delay arose from a flight which departed and arrived in a third state, and notwithstanding that American Airlines did not sell the flight combination (despite it being considered to have been a single unit by the CJEU), the airline was still held liable to provide compensation in terms of the Regulation.

Concluding remarks

With this decision, the CJEU has continued to manifest the importance given to consumer protection in its interpretation, thereby acknowledging the very basis on which this Regulation itself is established. Certain CJEU interpretations on the notions of the obligation to compensate for delays of over 3 hours and the ever-narrow interpretation of the “extraordinary circumstances” defence have led to some very interesting reads in recent times, however some may feel that the CJEU has gone a step further in its interpretation, possibly akin to the opening of a Pandora’s box.

This is particularly interesting since the flights which were booked via a travel agency were operated by different airlines without a specific legal relationship. Moreover, the delayed flight occurred between two American cities, and so completely outside the realm of the European Union.

Evidently, this ruling highlights the CJEU’s extensive application of the Regulation, which might exceed the initial intention of the European legislators. It is clearly stipulated within Article 3 of the Regulation that such should apply to passengers departing from an airport within an EU Member State or to passengers departing from an airport located in a third state to an airport situated in the territory of an EU Member State. The wording used in the aforementioned article suggests that there must be a connection to the Member States which in this case was evidently bypassed by means of the CJEU’s interpretation of a “connecting flight” being deemed to be a single unit.

Whilst such a CJEU ruling is only intended to apply to the case at hand, it may still be referred to by judges within other Member States, and so, it is only reasonable to assume that it will not be long before airlines commence their lobbying to ensure that the revision of the Regulation which was put forth in 2016 by the European Commission via Interpretative Guidelines, is pushed forward and enacted soonest.