Germany: Another Preliminary Ruling Procedure Instituted by German Supreme Court

By decision of 17th July 2007 German Supreme Court (BGH) has moved for another Preliminary Ruling of the European Court of Justice (ECJ) in regard to Regulation (EC) 261/2004 . Whereas the first German request for Preliminary Ruling, filed by OLG Frankfurt, aimed for clarification in regard to the scope of application of the Regulation, the BGH’s request concerns differentiation of cancellation and delay.Some German courts held that the differentiation of cancellation and delay had to take into regard the time factor and the reasonability for passengers (AG Rüsselsheim 07.11.2006, 3 C 717/06). Extraordinary delays of 22 hours (AG Düsseldorf 12.10.2006, 30 C 1726/06-75), or more than 48 hours (AG Rüsselsheim, as above) therefore had to be considered as cancellations rather than delays only. Other decisions held that time played no role for the differentiation and decided that a flight departing 25 hours after scheduled departure time were still delayed and not “cancelled” (LG Darmstadt, RRa 2006, 227).The questions posed to the ECJ by BGH therefore are the following:1) Does the interpretation of the term “cancellation” and its differentiation from “delay” basicly depend on wether the original flight planning was abandoned so that a deferment of departure regardless of its duration doesn’t constitute “cancellation” as long as the airline did not abandon the planning of the original flight?2) Otherwise: under which circumstances will a deferment of departure not only constitute delay but has to be treated as cancellation? Does the answer to this question depend on the duration of the delay?Source: BGH press release 102/2007.

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