New place of jurisdiction for passenger claims in Austria

As of May 1st, 2022, Austrian law provides for a new place of jurisdiction for passenger claims based on Regulation 261/2004. According to the new provision, a passenger may choose to initiate proceedings before the court in whose jurisdiction the respective flight´s place of arrival or place of departure is located.

This new provision is applicable in cases in which Brussels I Regulation (recast) does not apply (i.e., when the air carrier is located outside the EU) and aims to provide for an equal treatment of such air carriers and those located in a member state of the EU. Until now, passengers were in many cases not able to initiate proceedings against an air carrier located outside the EU, unless the Austrian Supreme Court decided that initiating proceedings where the air carrier is located would be an unreasonable burden for the respective passenger.

What changes of a scheduled departure time qualify as cancellation?

On 21 December 2021 the European Court of Justice (ECJ) rendered two decisions regarding the question whether certain changes of a scheduled departure time qualify as cancellation within the meaning of Article 5 of Regulation 261/2004.

In case C-395/20, a flight from Düsseldorf to Antalya that was initially scheduled to depart at 13:20 was postponed to depart at 16:10. The ECJ decided that because the departure time was postponed by less than three hours, the flight must not be regarded as being cancelled.

In case C-263/20, a flight from Palma de Mallorca to Vienna that was initially scheduled to depart at 14:40 was brought forward to depart at 08:25. The ECJ decided that because the departure time was brought forward by more than one hour, the flight must be regarded as being cancelled (leading to the consequences stipulated in Articles 7, 8 and 9 of Regulation 261/2004).

On a side note: in this case the ECJ also stated that it is not sufficient for an airline to merely inform the intermediary through which a flight was booked about the changes of the scheduled departure time two weeks in advance to comply with Article 5 (1) (c) (i) of Regulation 261/2004 and to avoid being obliged to pay a compensation – even if the passenger´s contact details were not disclosed to the airline.

Compensation payments must be deducted from immaterial and material damages

In one of its rare rulings regarding the Regulation 261/2004, the Austrian Supreme Court decided in the case 4 Ob 177/21i that compensation payments an airline paid to a passenger in accordance with Article 7 of the regulation must be deducted from further claims for immaterial and material damages asserted by the passenger.

While the regulation sets forth certain passenger rights (Art 7: compensation, Art 8: reimbursement or re-routing, Art 9: care), other claims a passenger may assert (e.g. damages for a hotel booking or a rental car that he could not use) must be based on national law.

In the case at hand, the passenger claimed that the compensation payment aims only to reimburse him for the inconveniences linked to a denied boarding/cancellation/long delay and, therefore, must only be deducted from immaterial damages. However, the Austrian Supreme Court clarified that in such cases the compensation payment must also be deducted from material damages like expenses for a hotel booking or a rental car.