Reasonable measures: Re-routing requirements in air passenger law – the ignored subjective element! (Part B)

IV. Re-routing as a measure to reduce a long delay, i.e. a delay of more than 3 hours

1. In cases where passengers are actually carried on the flight they have booked, but the booked flight or flight connection suffers a long delay, the situation is different compared to the situation of a simple flight cancellation.
2. Art. 6 of Regulation (EC) No. 261/2004 does not generally refer to Art. 8 of Regulation (EC) No. 261/2004 in the event of a mere delay to a flight. The system of the Air Passenger Rights Regulation therefore does not assume that in the event of a mere delay to the booked flight – in addition to the actual carriage – alternative carriage must also be offered by the operating airline. A “stranding” or “denied boarding” of passengers is not to at stake in this constellation. In the event of a pure delay, the Air Passenger Rights Regulation therefore rightly does not know an ‘alternative transport obligation’ per se.
3. According to Art. 6 (1) c) iii) of Regulation (EC) No 261/2004, an exception only applies if the delay is at least five hours. However, even in this case, Art. 6 Para. 1 c) iii) of Regulation (EC) No. 261/2004 only refers to Art. 8 Para. 1 a) and only gives the passenger who arrives at his/her final destination more than five hours later the right to be reimbursed the ticket costs originally incurred for parts of the journey not completed or for parts of the journey that have become pointless, and not – as in the case of cancellation – the right to be re-routed as soon as possible within the meaning of Art. 8 Para. 1 b) and c).

Conclusion:

Passengers affected by the mere delay of a flight already have no right under Art. 8 of Regulation (EC) No. 261/2004 to demand re-routing to their final destination on comparable travel arrangements at the earliest possible date on the basis of the system of the Air Passenger Rights Regulation.

Even taking into account the standard applied by the ECJ in the “TAP” and “Austrian Airlines” decisions for the interpretation of the “reasonable measures” criterion in Art. 5 Para. 3 of Regulation (EC) No. 261/2004, the airline should not normally be required to cancel the flight it has planned solely due to a delay caused by extraordinary circumstances. Rather, in this situation it is almost always considered appropriate to operate the flight with as little delay as possible. If this is possible, the air carrier concerned cannot be required to rebook all passengers on the affected flight to flights operated by competing airlines. This particularly applies in consideration of the sacrifice threshold established by the ECJ (except in cases where passengers are affected who may miss their connecting flight as part of a single booking, see the comments on this constellation in the following section V). If this were seen differently, this would mean that the air carrier’s own flight would end up being operated with a very low load factor, i.e. with only those passengers who are not affected by the delay or only with those passengers who did not wish to be rebooked or for whom no suitable rebooking option was found.

V. Special case: Re-routing as a reasonable measure in the event of a delay of a pre-flight as part of a segmented flight connection

1. The possibility of minimising an expected delay at the scheduled final destination by rebooking is particularly relevant in the context of standardised bookings disrupted by delays. If a so-called feeder flight is delayed and a passenger misses the connecting flight booked as part of a uniformly booked flight connection, alternative transport is required in any case, although this is not a case of cancellation.
2. This constellation corresponds to the constellation that the ECJ had to decide in the “TAP proceedings”. In this case, the court examined even more specifically the situation in which a single passenger was carried on a flight of the air carrier in question the next day as a substitute.

Conclusion:

The passenger(s) affected by the cancellation of a flight within the flight connection booked by them have – as in the case of the cancellation of a single flight – the right under Art. 8 of Regulation (EC) No. 261/2004 to demand re-routing to the final destination under comparable travel conditions from the airline at the earliest possible date.

Taking into account the standard used by the European Court of Justice in the “TAP” and “Austrian Airlines” decisions to interpret the “reasonable measures” criterion in Art. 5 Para. 3 of Regulation (EC) No. 261/2004 it must be considered that it is often the case that only a single passenger or a very small group of passengers are affected by the delay of the first flight of a flight connection to such an extent that they have to be re-routed. In most cases, many passengers on a flight have already reached their final destination after the delayed arrival. Only those passengers who have booked an onward flight require further assistance from the airline. However, this also applies in the case where the feeder flight only suffered a minor delay of less than 3 hours. In these cases, it is clear that the passenger or the few passengers affected can demand a different level of attention from their airline when it comes to providing them with alternative transport. It is conceivable that capacities can be used that are not available if all passengers on an entire aircraft are affected or even if there is a disruption affecting several thousand passengers. In this case, rebooking to direct and indirect flights operated by other airlines is a reasonable measure for the airline concerned and is therefore likely to be more common in this constellation. This is particularly true as the airlines, by offering connecting flights that can be booked uniformly, also assume the risk of the passenger to strand in the middle of a flight connection or to travel with an extended (unbooked) stopover in a city which is often outside the territory of the booked departure or the territory of the booked destination.

However, even in this constellation, it remains the case that the airline concerned is only required to take all measures that are appropriate to the respective situation, possible to organise by using all the personnel, material, and financial resources at its disposal, and that can still be expected of the airline up to its subjective sacrifice threshold.

VI. Summary

After all the “TAP decision” (C-74-19) and the “Austrian Airlines decision” (C-264-20) of the ECJ are both individual case decisions and do not contain any obiter dictum. The ECJ emphasises at various points in its respective grounds for judgement that a case-by-case assessment is the standard of review. In each individual case the affected carrier must take the appropriate measures. The limits of those measures that could have been taken using all the human, material, and financial resources available to the (specific) air carrier in the respective situation do not require the air carrier to make an intolerable sacrifice. Consequently, the individual subjective perspective of the specific air carrier in the respective situation is decisive and no general, objective standard is applicable.