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

The BGH stated that reasonable measures within the meaning of Art. 5 para. 3 of Regulation No. 261/2004 include “offering the passenger possible alternative direct or indirect transport on a flight operated by the air carrier concerned or by another air carrier [….], unless the operation of such alternative transport represents an unacceptable sacrifice for the air carrier concerned in view of its capacity at the relevant time.” Unfortunately, the BGH in result ignores the subjective element, which is considered by the ECJ both regarding the duty of care and the sacrifice limit of the individual airline.

Firstly, the two decisions of the ECJ in which it developed the subjective element will be presented. After that the article looks at the corresponding practical areas of application of the decisions.

I. The statements of the ECJ in the TAP-ruling of 11 June 2020

In the judgement of the Fourth Chamber of the ECJ of 11 June 2020 in the proceedings with the case number C-74-19 (‘TAP judgement’), para. 61, the Chamber answers the 3rd question referred to it on the reasonable measures as follows:

In the event of a delayed first flight of a segmented flight connection the carriers generally have – to comply with Art. 5 para. 1 c and Art. 7 para. 1 of Regulation No. 261/2004 – to rebook the affected passenger not (only) onto their own flights, but also onto flights of other airlines. Moreover, the airlines must demonstrate that “there was no other possibility of alternative direct or indirect transport on a flight by itself (author’s note: the air carrier concerned) or on another air carrier’s flight, which arrives with less delay than the next flight of the air carrier concerned”. Therefore, the airlines may not limit themselves to checking their own flights, if the passengers are stranded in the middle of a flight connection.

The ECJ then went on to state in the grounds for the judgement, with regard to the duty of care imposed on the respective air carrier in this regard, that

“… the diligence required of the air carrier … presupposes that it uses all the means at its disposal to ensure reasonable, satisfactory, and earliest possible alternative transport. This includes the search for other direct or indirect flights, which may or may not be operated by other air carriers belonging to the same airline alliance and which arrive with less delay than the next flight of the air carrier concerned.”

(ECJ, judgment concerning TAP of 11 June 2020, C-74-19, para. 59)

The ECJ thus states that the air carrier has used all means at its disposal – and thus taken all reasonable measures – if it either cannot find a place on another direct flight or another indirect flight connection because such a flight or such a flight connection does not exist or such a place or such a connection does exist but could not be found or booked in the time available using all means at the air carrier’s disposal.

If such a direct or indirect transport option exists and is recognised by the air carrier using all the means at its disposal, the Fourth Chamber of the ECJ states that it is also important, whether the exercise of such transport options “constitutes an intolerable sacrifice for the air carrier concerned in view of its capacity at the relevant time”.

The ECJ defines this sacrifice-limit in such a way that alternative transport would constitute an unacceptable sacrifice in view of the air carrier’s capacities at the relevant time. This limit is also purely subjective and dependant on the situation. It considers the capacities of the specific air carrier – and not just any air carrier – as a point of reference on the one hand and takes the specific situation into account on the other. Once again, the ECJ has not established an objective standard, but rather consistently argues on an individual basis. This means that an air carrier does not have to demonstrate which possible alternative transport options were objectively available, but rather which alternative transport options were accessible and reasonable for the air carrier in question in the specific situation.

As a result, in its ‘TAP judgement’, the ECJ does not require the air carrier in question to achieve the earliest possible alternative transport, but rather to make a reasonable individual effort up to its subjective sacrifice limit. Furthermore, it is clarified that all reasonable measures are on an equal footing. In the event of the cancellation of a flight, the air carrier concerned always has the option of transporting the passengers affected by this on a replacement aircraft and, due to the availability of its own capacity and the advantage of providing all passengers of an affected flight with alternative transport at the same time, to give preference to this option over rebooking each individual passenger on possibly numerous other scheduled flight connections of third party competitors.

II. The statements of the ECJ in the Austrian Airlines order of 14 January 2021

In the order of the Ninth Chamber of the ECJ of 14 January 2021 in proceedings with the case number C-264/20 (‘Austrian Airlines order’), paragraphs 27-32, the Chamber answers the question of re-routing as a part of the characteristics of the extraordinary circumstances referred to it by the Schwechat District Court for the case of a cancelled individual flight as follows:

“it is incumbent on the air carrier to prove that it was obviously not possible for it to transport the affected passengers elsewhere as quickly as possible without making unacceptable sacrifices in view of the company’s capacities at the relevant time by taking measures such as resorting to a replacement aircraft or searching for available seats on any flights operated by other air carriers”.

The ECJ further states that

“in the event of such a circumstance, has taken measures appropriate to the situation by deploying all the human, material and financial resources at its disposal to prevent that circumstance from leading to the cancellation or long delay of the flight concerned, without, however, being required to make unacceptable sacrifices in view of the capacity of its undertaking at the relevant time”.

(ECJ, order concerning Austrian Airlines of 14 January 2021, C-264-20, para. 28)

In its “Austrian Airlines decision”, the ECJ thus consistently confirmed the individual and situational standard of care already set out above in section I on the “TAP judgement”.

III. Consequences of this case law for the cancellation of a flight or a feeder or connection flight within a uniformly booked flight connection

1. In principle, rebooking as part of the measures to be taken by the airline in the event of cancellation or cancellation of part of a flight connection in accordance with Art. 8 Para. 1b) of Regulation (EC) No. 261/2004 has already been regulated from the outset under the heading “re-routing to the final destination under comparable travel conditions at the earliest opportunity”.
2. However, in the opinion of the ECJ, a breach of the obligation to re-route should also mean that the airline cannot exculpate itself from the obligation to pay compensation in accordance with Art. 5(3) of Regulation (EC) No 261/2004 if, in the event of extraordinary circumstances, it does not also consider this as a reasonable measure to reduce the consequences of the cancellation made necessary by the extraordinary circumstances.
3. This constellation corresponds to the constellation that the ECJ had to decide in the “Austrian Airlines proceedings”.
4. At this point, it should be noted that this interpretation of the elements of Art. 5(3) of Regulation (EC) No 261/2004 already contradicts the wording and the system of Regulation (EC) No 261/2004. Art. 5(3) of Regulation (EC) No 261/2004 initially only states that “the cancellation is due to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken”. The legislator originally only wanted the airline to take reasonable measures to avoid the cancellation itself, not all its consequences. Furthermore, the European legislator then expressly regulated the obligations of airlines following cancellations in Art. 8 and 9 of Regulation (EC) No. 261/2004. Art. 5 (3) and Art. 8 originally constitute a closed system and the obligation to re-route had expressly not been part of Art. 5 (3). This becomes clear when you look at Art. 7 of Regulation (EC) No. 261/2004. Art. 7 regulates the amount of compensation. It provides in its para. 2 for a 50% reduction of the compensation claim, if the passengers have been offered re-routing to their final destination on an alternative flight in accordance with Art. 8, within a certain period of time after the scheduled arrival time of the originally booked flight depending on the length of the flight.

Conclusion

The passengers whose flights had been cancelled or who are affected by the cancellation of a flight within their booked flight connection already have the right under Art. 8 of Regulation (EC) No. 261/2004 to demand re-routing to their final destination under comparable travel conditions at the earliest possible date.

In addition, 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 now requires the airline concerned to demonstrate the appropriate using of all human, material and financial resources available which can still be regarded as reasonable up to the subjective sacrifice limit of the individual company. Depending on the individual case, these requirements may be met by the use of a replacement aircraft or by rebooking to own or third-party direct or indirect connections. However, the ECJ does not require an objective review of all possible transport options by third-party companies at any point.