CJEU’s judgment in C-558/24 Corendon Airlines Turistik Hava Tasimacilik AS v Myflyright GmbH

Have you got a question?

“Harry, where’s that article on the CJEU’s judgment in C‑558/24 Corendon Airlines Turistik Hava Tasimacilik AS v Myflyright GmbH? Weren’t you meant to finish it yesterday?”

“Well, yes. I did say that. But then yesterday I changed my mind, and decided it was due today instead. So based on that, it’s not actually late after all.”

Amazingly, this doesn’t work: you can’t just unilaterally reschedule your pre-existing obligations so that they count as being on time whenever you end up getting round to them. It doesn’t work like that with taxes, it doesn’t work with mortgage payments, and now, thanks to the CJEU, we know that it doesn’t work with EU261 compensation either.

The facts of the case were these: the day before the scheduled departure of its flight from Munich to Antalya, which had been scheduled to depart at 10.20 and to arrive at 14.20, the airline purported to reschedule it, pushing its departure and arrival times back by one hour. In the event, the flight was further delayed for unstated reasons, arriving at 18.16. If the delay was assessed relative to the original arrival time, then it was over the three-hour threshold at which compensation was payable, but the airline argued that it ought to be counted from the rescheduled arrival time, which would mean that it wasn’t. Finding this argument to be more intriguing than one might have given it credit for, the Landshut Regional Court in Germany referred it to the CJEU for a preliminary ruling.

Unsurprisingly, the Court did not need to hear from the Advocate General before kicking the airline’s argument into touch. To paraphrase, allowing airlines to move the goalposts whenever they felt like it would have made a mockery of the delay compensation regime – in fact, it’s hard to see how delay compensation would ever be payable if the relevant delay could just be rescheduled away by an email sent days, hours or even minutes before departure. So far, so easy on the path to answering the Landshut court’s first question.

There was, however, a second question. Did it matter, the German judge wondered, if the rescheduling announcement was made within the time limits laid down in Article 5 (i) (c)? In other words, does the rescheduling argument work if you send the email more than two weeks ahead of time, or at least seven days ahead with appropriate re-routing? True, an answer wasn’t strictly necessary to decide the case at bar, because the airline hadn’t got anywhere near the 7-day mark. But it was obviously relevant to the overarching issue of how rescheduling interacts with the 3-hour delay threshold, and it was a point that was simply bound to come up again if not decided here. Given how swamped the CJEU is with referrals on EU261, it made perfect sense to take the opportunity to address this short and simple question, and thereby to forestall its otherwise inevitable return in another case.

Instead, the CJEU decided to ignore it, so the likely answer can only be inferred. To my mind, that answer can only be “yes” – advance notice of a schedule change must have the same effect as advance notice of a cancellation. That’s based on:

The issue not being foreclosed by this judgment. The court only decided that advance notice is irrelevant to the duration of the delay, not to the separate question of whether the delay is compensable.
In Sturgeon v Condor, the Court held that passengers subject to a three-hour delay should “be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled”. But passengers with cancelled flights don’t get compensation if they are given the appropriate advance notice under Article 5 (i) (c). Equal treatment of the two situations must include equal effects from this provision.
Also in Sturgeon, the Court equated the experience of passengers whose flights are delayed with those “whose flights are cancelled, who are re-routed in accordance with Article 5 (1) (c) (iii) of Regulation No 261/2004 and who may be informed of the flight cancellation at the very last moment”. But this also implies that the court doesn’t see an equivalence with passengers whose flights are cancelled under 5 (1) (c) (i) or (ii), i.e. with the requisite amount of advance notice and with any required re-routing.
Whilst the law clearly shouldn’t allow an airline to reschedule itself out of trouble the day before a flight, it would also be unrealistic not to recognise the validity of a rescheduling done well in advance and in accordance with the contract. In the reality of the aviation industry, this is sometimes necessary, and since it causes less disruption for passengers than a cancellation, it would make no sense to incentivise carriers to cancel instead by making that the only way to come within Articles 5 (1) (c) (i) or (ii).

Ultimately, the CJEU gave the right – and obvious – answer to the question that it dealt with, but could have saved itself yet another reference had it also dealt with the second. I’m afraid the learned justices will find they haven’t cancelled that question – they’ve just rescheduled it.