Today, the European Court of Justice has published the judgment in Case C-474/22 Laudamotion and C-54/23 Laudamotion and Ryanair, in which the Court states that passengers who did not present themselves for boarding for a flight which arrived with a long delay or who purchased a ticket for an alternative flight and arrived at the destination with a delay of less than three hours are not entitled to fixed compensation. The following is a brief summary of the facts and the judgment of the European Court of Justice.

• Main dispute and questions referred to preliminary ruling

Concerning Case C-474/22, an air passenger had a confirmed reservation with Laudamotion for a flight linking Düsseldorf to Palma de Mallorca, scheduled for June 26, 2018. Believing that the announced delay of this flight would cause him to miss a professional appointment, this passenger decided not to board the said flight, which arrived at its destination 3 hours and 32 minutes late. The said passenger assigned his rights to Flightright, which brought an action before the competent German court seeking compensation in the amount of 250 euros, on the basis of Article 7(1)(a) of Regulation 261/2004.

The appeal court stated that a passenger who has been informed of a delay of three hours or further before his departure may benefit from the compensation, even if he did not present himself at the airport (based on Article 3. 2 (a) of Regulation 261/2004).

Laudamotion decided to bring an appeal on a point of law against the decision of the court of appeal before the Federal Court of Justice of Germany (Bundesgerichtshof)..

As of the Case C-54/23, a passenger booked with Ryanair a return flight from Düsseldorf to Palma de Mallorca, scheduled for October 31, 2019. Having been informed by Laudamotion, which was the effective air carrier, that the departure of the initial flight would be delayed by six hours, this passenger booked a replacement flight himself to attend a professional meeting which was to be held in Palma de Mallorca. Thanks to this replacement flight, he finally arrived at his destination less than three hours behind the scheduled arrival time of the original flight. The said passenger, who claims to have presented himself on time at check-in for the initial flight, claimed 250 EUR compensation from Laudamotion under Article 5(1)(c) , and Article 7(1) of Regulation No 261/2004.

However, the appeal court considered that, although the initial flight arrived more than three hours late, Laudamotion was not required to pay the compensation claimed, since the passenger had not taken this flight and that he had arrived at the final destination less than three hours late.

The passenger decides to bring an appeal on a point of law before the Federal Court of Justice of Germany (Bundesgerichtshof).

Thus, the German Federal Court of Justice asks the Court of Justice whether:

• in a situation where it is announced that a flight will likely be delayed by at least three hours beyond the originally scheduled arrival time, an air passenger is entitled to that compensation where he or she did not present himself or herself for check-in (Case 474/22), and
• whether an air passenger is entitled to the same compensation if he or she independently booked an alternative flight which allowed him or her to reach the final destination with a delay of less than three hours (Case C-54/23)

According to the Court of Justice, neither of those situations grants a right to the fixed compensation. It recalls its case-law (Sturgeon and Others C-402/07 and C-432/07, and SATA International – Azores Airlines C-308/21) according to which passengers whose flights are delayed are, for the purposes of the application of the right to compensation, treated as passengers whose flights are cancelled where the delay is equal to or in excess of three hours. The crucial factor which has led the Court to adopt that approach is that passengers whose flight is affected by a long delay, like passengers whose flight is cancelled, suffer damage in the form of an irreversible loss of time equal to or in excess of three hours.

In terms of Case C-474/22, the Court sets up that a passenger who did not go to the airport has not likely suffered such a loss of time. Thus, to benefit from the compensation in the event of a flight delay of three hours or more after the initial scheduled arrival time, an air passenger must have presented themselves in good time for check-in.

Moreover, where a flight is affected by a long delay, the intention is that it will still be performed and, accordingly, check-in must be carried out. It follows that passengers whose flight is affected by a long delay are not exempted from the obligation to present themselves for check-in, unlike passengers whose flight is cancelled and for whom such an exemption is expressly laid down in the Regulation (EC) 261/2004.

As regards of the Case C-54/23, the Court states that an air passenger who chose not to take a flight for which he or she had a confirmed reservation and who, owing to an alternative flight on which that person booked a seat independently, arrived at the final destination with a delay of less than three hours after the originally scheduled arrival time, also has not suffered a loss of time conferring entitlement to fixed compensation.

The Court notes that the Regulation (EC) 261/2004 is intended to remedy ‘serious trouble and inconvenience’ suffered by passengers in the context of a flight. However, such inconvenience, which may result from the fact that a passenger had to find an alternative flight himself or herself, cannot be regarded as ‘serious’, within the meaning of that Regulation, where that passenger reached his or her final destination with a delay of less than three hours.