ECJ: No nuisance, no compensation

With two recent decisions, the ECJ made it clear that compensation for flight delays is only due if the passenger is actually affected by the delay.

In the first case (C-474/22), a passenger booked a flight from Düsseldorf to Palma de Mallorca. After the air carrier informed the passenger of an expected delay shortly before departure, the passenger decided not to take the flight because he feared missing a business meeting. In fact, the flight finally arrives 3 hours and 32 minutes late.

The second case (C-54/23) was similar. Here too, the passenger on a flight from Düsseldorf to Palma was informed of an expected delay. This time, however, the passenger - also worried about missing a business meeting - booked an alternative flight on his own, which allowed him to reach Palma less than three hours late.

In both cases, the ECJ does not consider any entitlement to compensation to exist and clearly stated that in the event of a delay, the passenger must be checked in and present to a representative of the operating air carrier in good time (C-474/22). If the passenger books a replacement flight that causes him to suffer a delay of less than three hours, he is also not entitled to any compensation (C-54/23).

“A very important clarification,” says Martin Klemm, partner at Brenner & Klemm Rechtsanwälte, pleased about the decision, “apart from the fact that it would be incomprehensible why a passenger receives a claim for compensation for a delay that does not affect him at all this interpretation also corresponds to the clear wording of the regulation”. The Air Passenger Rights Regulation stipulates - except in the case of cancellation - the passenger's obligation to arrive for check-in on time, otherwise there is no claim to compensation.

“This also ensures that the passenger must contact the air carrier so that they can be appropriately looked after or rebooked. This will also make the work of aviation companies much easier,” Klemm continued.

The decision will definitely have an impact on Austria, as compensation has so far been awarded by the Austrian courts in similar cases, such as those that the ECJ had to deal with.