The passenger rights regulation of the European Union is primarily designed for delays and cancellations. The ECJ is currently dealing with the question of whether bringing the departure forward can also lead to an obligation to pay compensation.

Especially with charter and holiday flights, it is not uncommon for the flight times to be changed a few days before departure. The Air Passenger Rights Ordinance only provides for compensation if the cancellation or delay is notified 14 days or less in advance and the arrival is delayed by at least three hours.

In practice it often happens that the travel days are moved forward or the departure takes place significantly earlier. No compensation rights can be derived purely from the ordinance, but the respective airline can certainly be made responsible under other laws. Several courts in Germany and Austria have referred questions to the European Court of Justice regarding the applicability of EU Regulation 261/2004 when flights are brought forward.

The highest judges have obtained an opinion on this. This is based on the assumption that an earlier departure can be viewed as a special form of cancellation after a certain amount of time. Such a circumstance also creates inconvenience and possibly additional costs for the passengers concerned.

The expert opinion also assumes that the bringing forward of flights can lead to appointments having to be canceled or even the vacation having to be planned differently. It may also be necessary to organize transport to get to the airport. The latter can be the case, for example, if instead of a leisurely flight at 10:00 a.m., the flight starts at 2:00 a.m. and public transport is during the nighttime break.

It is assumed that even a few hours earlier departure can lead to problems. This is especially true if the passenger has not been informed of the changed flight times and then learns at the airport that his plane has long since departed. 

Expert for package tours very specific

EU Advocate General Priit Pikamäe specifically addresses package tours which, in his opinion, is an unreasonable change. If the flight times are moved forward by at least two hours, one could already speak of a cancellation. However, he is also of the opinion that the claim for compensation only applies if the operating airline has not informed about the change in good time. In this context, the 14-day period mentioned at the beginning comes into play.

This also means that the expert assumes that if the flight times have been brought forward at least two weeks before departure, there is no entitlement to compensation under EU Regulation 261/2004. Especially with package tours and tickets booked through online travel agencies (OTAs), the information from the organizer or the airline does not reach the passenger at all. So far, the ECJ has always ruled in favor of travelers.

With regard to bringing the flight times forward, the EU Advocate General also points out that airlines must offer appropriate alternatives (substitute transport). If such a claim is made, there is no entitlement to compensation for earlier departure times. Unfortunately, it has also been shown in practice that some airlines do not offer any alternatives and suggest to the passenger that the only alternative would be a refund of the flight price.

How the European Court of Justice will deal with the opinion is still completely open. The highest judges often follow the advocate general's recommendations, but are completely free in their decision-making and have repeatedly decided differently in the recent past.