Germany: two new Supreme Court decisions on air passenger rights

On March 17, 2015 the German Supreme Court (BGH) has passed two judgements with regard to Regulation (EC) 216/2004.The first judgement relates to an infant flying free of charge with the parents. As the flight was delayed for more than 6 hrs at arrival a law suit was filed for compensation pursuant to Reg. 261/2004. However, the claim failed to succeed and was dismissed in all instances because of Article 3 of said Regulation whereas it shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. The Supreme Court could not be convinced by the plaintiff’s argument that the exemption would not apply if the free admission was available to any infant and thus had to be regarded as a “fare availbale to the public”.Source: BGH press release 36/15 of March 17, 2015Case details: BGH judgement X ZR 35/14 of March 17,2015In the second case, the plaintiffs had booked their flights with a tour organizer as part of a package. Two weeks before departure, the tour organizer informed them that they were rebooked to another flight departing more than 6 hrs later. The plaintiffs regarded that as a denial of boarding with regard to the original flight and sued the operating carrier for compensation. While the first instance court (AG Düsseldorf) granted the claim, the appelate court (LG Düsseldorf) reversed the judgement and dismissed the claim. Upon appeal of the plaintiffs, the Supreme Court (BGH) set aside the appelate court’s judgement and referred the matter back for new consideration. The BGH held that in principle passengers were only entitled to compensation for denied boarding if they had presented themselves for check-in on time. However, this requirement would not apply if the carrier already had made clear that boarding would be denied. The appelate court therefore would have to consider whether or not the information about the rebooking, according to its particular content, could be regarded as an announcement to deny boarding and if such announcement was attributable to the carrier. Furthermore the appelate court would have to investigate whether or not the plaintiffs had a confirmed reservation on the original flight.Source: BGH press release 35/15 of March 17, 2015Case details: BGH judgement X ZR 34/14 of March 17, 2015

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