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Neue Rechtsprechung des OGH zu ABB (Flugscheinreihenfolge, Umbuchungsgebühren)

New Supreme Court Ruling on GCC (Ticket Sequence, Rebooking Fees)

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The Austrian Supreme Court (OGH) recently issued a new judgment (2 Ob 202/25g) concerning an airline’s General Conditions of Carriage (GCC) and thereby provided further practical clarification, particularly with regard to ticket sequence requirements and rebooking fees.

Specifically, the OGH examined three clauses, which are discussed in detail below:

  1. Compliance with Ticket Sequence / No-Show Clause

The first clause required passengers to comply with the ticket sequence as booked. The background is that, due to airline pricing structures, flights with stopovers or round-trip bookings are sometimes cheaper than corresponding one-way flights purchased separately. This issue was already addressed in detail in our article entitled “No-Show Clauses”, available here.

Such clauses have repeatedly been the subject of litigation before Austrian courts. Originally, GCC regularly provided that any violation of the ticket sequence or any no-show would automatically result in the cancellation of the remaining booking. In response to the case law of the Austrian Supreme Court (OGH) and the German Federal Court of Justice (BGH), many airlines amended their GCC. Under the revised provisions, airlines would merely recalculate the ticket price, while cases in which “the passenger’s travel plans simply change” would no longer fall within the scope of such clauses. The intention was to comply with the requirements established by the courts, according to which recalculations may only affect passengers who intentionally circumvent the airline’s pricing system.

The Austrian consumer association Verein für Konsumenteninformation (VKI) nevertheless challenged such a clause again, arguing that it was non-transparent and therefore violated Section 6(3) of the Austrian Consumer Protection Act (KSchG). The VKI primarily argued that the clause contained a reference to another unlawful clause.

The OGH ruled in favour of the airline, holding that the clause used by the airline did not contain any reference to another unlawful clause. The Court further stated that the clause itself – which the VKI did not contest in its appeal – was neither non-transparent nor grossly disadvantageous. According to the OGH, the clause complies with the requirements established by supreme court case law concerning an almost identical clause (4 Ob 164/12i) and is also consistent with the corresponding case law of the German Federal Court of Justice (BGH) (X ZR 110/24).

In this context, the provision stating that the airline may make carriage of the passenger conditional upon payment of the difference between the recalculated ticket price and the original ticket price is remarkable. Such a “conditional carriage” mechanism may, in practice, come close to a forfeiture clause, which had previously been viewed critically by the courts. In case Xa ZR 5/09, for example, the BGH held that the protection of the airline’s tariff structure could sufficiently be achieved by requiring the passenger to pay a higher fare, rather than cancelling the booking entirely. The new OGH decision did not address this aspect.

  1. Different Rebooking Fees Depending on Fare Type

The VKI also challenged the fact that passengers were required to pay different rebooking fees depending on the fare selected.

Specifically, during the booking process passengers could choose between four “Economy” fare types, each providing for different rebooking fees (Light: EUR 200, Basic: EUR 150, Plus: EUR 120, Flex: no fee).

The VKI considered these clauses to be grossly disadvantageous and non-transparent because the fees allegedly exceeded the actual costs incurred by the airline as a result of a rebooking and lacked any objective justification. Furthermore, passengers were allegedly unable to understand the differing fee levels.

The OGH did not follow this line of argument and held that the airline had clearly and unambiguously specified the applicable rebooking fees. In the Court’s view, the introduction of different fare categories with varying rebooking options and related fees constitutes a legitimate aspect of the airline’s pricing structure. Furthermore, the fees did not constitute disguised remuneration (such as registration fees) or reimbursement for a specific expense allegedly incurred (such as credit processing fees).

Since the Court found neither a lack of transparency under Section 6(3) KSchG nor a gross disadvantage under Section 879(3) of the Austrian Civil Code (ABGB), it did not consider it necessary to address in detail any issues relating to Regulation (EC) No 1008/2008 under EU law.

  1. Information Sheet on Processing Fees

Finally, the VKI challenged provisions concerning processing fees, which it considered surprising and disadvantageous – and therefore invalid under Section 864a ABGB – as well as grossly disadvantageous and non-transparent.

According to the airline, however, and as confirmed by the OGH, the document in question merely constituted an information sheet intended to inform consumers and was not intended to create any rights or obligations. Since the document merely provided information, such provisions could not be the subject of an injunction action brought by a consumer association. For this reason alone, the VKI’s claim for injunctive relief had to be dismissed.

 

Our experienced Aviation Team is happy to answer your questions about the use of General Conditions of Carriage in Austria, review your GCC to reduce the risk of legal proceedings, and represent you in court.

Freiwilliges Warten auf Passagiere kein außergewöhnlicher Umstand

Voluntarily Waiting for Passengers Does Not Constitute Extraordinary Circumstances

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The General Court of the European Union (GC) has held in Case T-656/24 that voluntarily waiting for passengers affected by an extraordinary circumstance breaks the required direct causal link and thereby precludes reliance on extraordinary circumstances within the meaning of Article 5(3) of Regulation (EC) No 261/2004 in respect of a subsequent flight.

The delay originated from the security check at Cologne/Bonn Airport being overwhelmed, which caused all passengers of a European Air Charter flight to Varna (Bulgaria) to arrive at the gate significantly late. The airline decided to wait for these passengers and operate the flight with a considerable delay. As a result, the subsequent flight operated by the same aircraft from Varna to Düsseldorf, as well as the further onward flight from Düsseldorf to Varna, could not be operated as scheduled. Passengers on the Düsseldorf to Varna flight brought compensation claims under Article 7 of Regulation (EC) No 261/2004 against European Air Charter, which invoked extraordinary circumstances in its defence.

The GC acknowledged that the disruption at the security checkpoint constituted an extraordinary circumstance. However, it found that the required direct causal link between that extraordinary circumstance and the delay to the subsequent flights was broken by the airline’s intervening autonomous decision to operate the first flight with a delay. Even though that decision was taken in the interest of the passengers concerned, it remained an independent commercial decision of the airline. It could therefore no longer be said that the flights in question were delayed due to extraordinary circumstances, and the affected passengers are accordingly entitled to compensation under Regulation (EC) No 261/2004.

Don’t hesitate to contact our Aviation Team to learn more about passenger claims in Austria.

Entscheidungen des Flugverkehrsmanagements als außergewöhnliche Umstände

Air Traffic Management decisions as extraordinary circumstances

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In its judgment of 21 January 2026, Case T-134/25, the European General Court (EGC) held that air traffic management decisions may constitute extraordinary circumstances within the meaning of Article 5 (3) of Regulation (EC) No 261/2004.

The proceedings concerned a flight that ultimately reached its destination airport with a delay exceeding three hours. This delay was, inter alia, the result of a postponement of the immediately preceding flight operated by the same aircraft, which, due to weather conditions, had been allocated a later time slot following a decision by air traffic management. The aircraft was otherwise ready for departure.

The EGC ruled that a decision by air traffic management may constitute an extraordinary circumstance irrespective of the length of the resulting delay or the circumstances giving rise to it, provided that the decision was beyond the actual control of the air carrier. Particular consideration must be given to whether the air carrier itself contributed to the issuance of that decision.

Moreover, the fact that the air traffic management decision affected not the flight in question but its immediately preceding flight does not alter its classification as an extraordinary circumstance, provided that there exists a direct causal link between the decision and the delay of the subsequent flight.

With this judgment, the EGC diverges from the previous case law of the Austrian Regional Court of Korneuburg, which consistently emphasized that air traffic management decisions do not constitute extraordinary circumstances per se, but only when such decisions themselves were taken due to extraordinary circumstances (for example, when adverse weather was the reason for the decision). This criterion had not only significantly limited the cases in which a successful reliance on extraordinary circumstances was possible but had also, in practice, placed airlines in the difficult position of having to ascertain, describe, and prove the reasons for air traffic management decisions.

The new judgment of the EGC is expected to substantially increase the likelihood of airlines successfully defending themselves against passenger claims in Austria. It remains to be seen how the Austrian courts, particularly the District Court of Schwechat and the Regional Court of Korneuburg, will respond to this decision.

Don’t hesitate to contact our Aviation Team to learn more about passenger claims in Austria.

Are Passengers Entitled to Transport Hand Luggage Free of Charge

Are Passengers Entitled to Transport Hand Luggage Free of Charge?

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Consumer protection organizations in several EU Member States are currently challenging airlines’ baggage policies. Their objective is that every passenger has the right to bring hand luggage on board free of charge – regardless of the ticket category purchased.

This article provides an overview of the relevant legal framework and considers whether the arguments put forward by consumer protection organizations are convincing.

Background

Today, some airlines – particularly so-called “low-cost carriers” – generally offer three ticket categories with the following baggage rules:

  • Lowest category: only one “personal item” is allowed. This typically means a bag or backpack that fits under the seat in front, usually with maximum dimensions of 40x30x20.
  • Middle category: one personal item plus one piece of hand luggage is permitted. “Hand luggage” generally refers to a suitcase or bag that fits into the overhead compartment, usually with maximum dimensions of 55x40x20.
  • Highest category: one personal item plus one checked bag is permitted. “Checked baggage” is stored in the aircraft’s cargo hold and may not exceed dimensions of 80x120x120.

Consumer protection organizations now seek to establish that every passenger has the right to bring hand luggage without paying an additional fee. They base their arguments in particular on Articles 22 and 23 of Regulation (EC) 1008/2008 (“Regulation 1008/2008”) and on a 2014 judgment of the Court of Justice of the European Union (CJEU) in Case C-487/12.

What Does Regulation 1008/2008 Cover?

This regulation primarily governs the operation of air services in the EU – for example, licensing requirements and access to routes – but also includes provisions on ticket prices in Articles 22 and 23.

Article 22 establishes that air carriers are free to set their fares and rates. While this may seem obvious today, until the liberalization of air transport within the EU, starting in the 1980s, prices were tightly regulated and required government approval. This liberalization led to increased competition and, with it, lower fares – making air travel affordable for the broader public.

Article 23 acts as a counterbalance to Article 22, requiring that final prices for air services must always be displayed clearly. These prices must include the fare itself as well as all unavoidable and foreseeable taxes, charges, surcharges, and fees. Costs not included in these final prices are deemed “optional price supplements” and must be presented clearly and transparently at the start of the booking process, with acceptance on an opt-in basis.

Can Regulation 1008/2008 Support the Consumer Organizations’ Claims?

Consumer protection organizations now rely on a judgment of the Court of Justice of the European Union from 2014 in case C-487/12.

In the underlying proceedings, a passenger purchased several low-cost flight tickets from a Spanish airline but was required to pay a fee of EUR 10 per suitcase and flight for checked baggage. The passenger considered this to be in breach of a Spanish law that required airlines to transport checked baggage up to a certain amount.

On the basis of the alleged violation of this law, the airline was fined by a Spanish authority. The airline, however, challenged the decision before the Spanish courts, arguing that the Spanish law was contrary to European law because it infringed its right to freely set prices under Article 22 of Regulation 1008/2008. The question of whether the Spanish law was compatible with European law was ultimately referred to the CJEU for a preliminary ruling.

In those proceedings, there was initial uncertainty about the precise interpretation of the Spanish law. According to the referring Spanish court, the carriage of checked baggage had to be provided free of charge, whereas the Spanish government, in its submissions to the CJEU, argued that carriage was mandatory but not necessarily free of charge. Based on its established case law, the CJEU decided to follow the interpretation of the referring court when assessing the legal situation.

The CJEU’s Ruling in Case C-487/12

The CJEU addressed whether airlines’ pricing freedom includes the right to charge a surcharge for checked baggage. To this end, the Court analyzed Articles 22 and 23 of Regulation 1008/2008.

The CJEU first established that these provisions also apply to the pricing of baggage services. It then addressed the question of whether the price charged for checked baggage constitutes an unavoidable and foreseeable component of the airfare (and therefore forms part of the “final price”), or whether it is instead an “optional price supplement” for a service that complements the air transport service.

Taking into account the business practices of airlines – particularly low-cost carriers – which had evolved over the years, the CJEU concluded that the costs of checked baggage constitute merely optional supplements. The carriage of checked baggage was therefore not regarded as mandatory or indispensable for the transport of passengers. As a result, checked baggage does not fall within the “final price”, and airlines clearly retain the right, within their pricing freedom, to charge an additional fee for its carriage. This right was infringed by the Spanish law, which (according to the interpretation of the referring Spanish court) required the carriage of checked baggage free of charge. The CJEU‘s decision therefore favored the airline concerned.

However, the CJEU also stated in its reasoning that its considerations regarding checked baggage cannot be extended to hand luggage. In the CJEU’s view, the carriage of hand luggage is an indispensable element of passenger transport and therefore forms part of the final price. The CJEU expressly stated that “no surcharge may be levied” for hand luggage, provided its weight and dimensions “meet reasonable requirements” and it complies with applicable safety rules.

It is precisely these findings that consumer protection organizations now rely upon in asserting their demand for free carriage of hand luggage.

Our View

In our opinion, the arguments of the consumer protection organizations are not well-founded and would not necessarily lead to a consumer-friendly outcome.

On the one hand, in case C-487/12, the CJEU itself stated that no surcharge may be imposed for hand luggage if its weight and dimensions “meet reasonable requirements.” The fact that airlines – even in the cheapest ticket category – allow passengers to carry one “personal item”, usually a bag or backpack that fits under the seat in front, was neither addressed in the CJEU’s judgment nor in the Advocate General’s opinion during the preliminary ruling proceedings.

In his opinion, the Advocate General essentially offered two reasons why hand luggage must be included in the ticket price: first, unlike checked baggage, hand luggage remains under the sole responsibility of the passenger and does not create costs for handling, tracking, or storage on the part of the airline; and second, the ability to keep personal belongings considered highly valuable and absolutely essential under one’s own supervision pertains to human dignity.

The first argument, however, is not convincing. The aircraft types most commonly used for short-haul flights in Europe – the Airbus A320 and the Boeing 737 – are configured with around 130 to 200 seats but only have space for around 90 to 110 pieces of hand luggage. In practice, this means that on many short-haul flights passengers must be asked to check in their hand luggage free of charge, leading to these bags being carried in the aircraft’s cargo hold. In the end, numerous pieces of hand luggage fall under the airline’s responsibility, generating various costs (even if the airline does not usually pass these costs on directly to the affected passenger).

The second argument is equally unconvincing, given that even in the lowest category passengers are permitted to bring a personal item. It is surely compatible with “human dignity” to restrict the carriage of valuable belongings to those that fit in luggage of such size. Moreover, due to the aforementioned discrepancy between the number of seats and available storage in the overhead compartments, it is practically impossible for airlines to guarantee every passenger the right to bring a cabin suitcase on board.

On the other hand, in our view, the intended outcome – the obligation to carry hand luggage free of charge, or the prohibition of ticket categories that exclude hand luggage – is not consistent with the objectives of Articles 22 and 23 of Regulation 1008/2008. As the Advocate General emphasized repeatedly, Article 23 was introduced to complement the pricing freedom of Article 22 with a requirement of transparency, so that consumers could properly assess fares when comparing competing offers. Such transparency is desirable – and is also ensured by other provisions, such as those governing General Conditions of Carriage. If an airline clearly and transparently informs potential passengers during the booking process which ticket categories exist and what rights are associated with each, there is no justification for restricting it in its pricing and business model.

Finally, it is doubtful whether the outcome sought by consumer organizations – mandatory free hand luggage – would actually be consumer-friendly. It is likely that the “low-cost carriers” most affected by such a requirement would simply abolish the cheapest ticket category rather than allowing passengers to bring hand luggage at that fare. Passengers who currently opt for this category because they consider a personal item sufficient for their journeys would then be forced to pay higher fares.

If some of them decided to bring a cabin suitcase in addition to their personal item – since this is now included in the ticket price – this would increase the aircraft’s weight, resulting in higher fuel consumption, which both harms the environment and represents a significant cost factor for airlines. Additional costs incurred by airlines in handling hand luggage that cannot be accommodated in the cabin due to space limitations further raise the concern that consumer organizations’ efforts could ultimately lead to higher ticket prices for all passengers.

Don’t hesitate to contact our Aviation Team to learn more about this topic.

Zur bestätigten Buchung und dem Anwendungsbereich der Fluggastrechte-Verordnung

The ECJ on confirmed bookings and reduced fares

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In its ruling of 6 March 2025 (Case C-20/24), the European Court of Justice (ECJ) addressed two key questions regarding the interpretation of Regulation (EC) No 261/2004 (“Air Passenger Rights Regulation”).

First, the court considered whether a boarding pass that does not include departure and arrival times can still be regarded as a “confirmed booking” within the meaning of Article 2(g) of the Regulation. Second, the ECJ examined whether passengers traveling at a free or reduced fare are generally excluded from the scope of the Regulation.

The ECJ held that a boarding pass can constitute “other proof” within the meaning of Article 2(g) of the Air Passenger Rights Regulation, indicating that the booking has been accepted or registered by the airline or travel company. Therefore, a passenger holding such a boarding pass can, in principle, be considered to have a confirmed booking, unless the airline demonstrates that specific extraordinary circumstances justify a different conclusion.

Regarding the exception for passengers traveling for free or at a reduced fare, the ECJ ruled that this exemption does not apply if the passenger has paid the airfare to the travel company under market conditions. This also applies when the package travel price is paid to the travel company by a third party rather than by the passenger themselves. According to the ruling, it is up to the airline (in accordance with national rules of evidence) to prove that the passenger was indeed transported free of charge or at a reduced fare that was not directly or indirectly available to the public.

Don’t hesitate to contact our Aviation Team to learn more about confirmed bookings and reduced fares within the scope of the air passenger rights regulation and in general about passsenger claims in Austria.

EuGH Judikatur 2024

ECJ case law in 2024 on extraordinary circumstances

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In 2024, the European Court of Justice (ECJ) once again addressed the interpretation of extraordinary circumstances under Article 5(3) of the Air Passenger Rights Regulation. The focus was on two key questions: whether certain design defects and a staff shortage during baggage handling could be classified as extraordinary circumstances.

Design Defects

As established in the landmark Wallentin-Hermann case (C-549/07), hidden manufacturing defects may constitute extraordinary circumstances. In 2024, the ECJ provided further clarity in two significant cases involving design defects:

  • Case C-385/23: A design defect in the fuel gauge of a newly introduced aircraft model.
  • Case C-411/23: A design defect in the engine, reported to the airline months prior to the incident.

In both instances, the ECJ ruled that the design defects in question qualified as extraordinary circumstances. The Court reasoned that such defects, discovered post-entry into service, constitute hidden manufacturing defects that jeopardize flight safety. Since airlines have no control over such defects—discovered by manufacturers only after delivery—they fall outside the normal scope of an air carrier’s operations.

Of particular note, in Case C-411/23, the ECJ emphasized that the timing of the airline’s awareness of the defect was irrelevant. What mattered was that the defect existed at the time of the cancellation and was beyond the airline’s control.

Staff Shortage for Baggage Handling

The Touristic Aviation Services case (C-405/23) examined whether a staff shortage at an airport operator responsible for baggage handling could be classified as an extraordinary circumstance.

Here, the ECJ built upon principles established in the SATA International case (C-308/21), which dealt with the failure of an airport operator’s refueling system. The Court reaffirmed that events falling under the responsibility of third parties, such as airport operators, cannot be deemed controllable by airlines if the airline has no influence over them.

The ECJ also provided guidance on reasonable measures, stating that airlines must proactively seek alternatives, such as engaging the services of another provider, to minimize disruption and ensure continued operations.

Don’t hesitate to contact our Aviation Team to learn more about the ECJ case law in 2024 on extraordinary circumstances and in general about passsenger claims in Austria.

Kostenlose Tarife, öffentliche Verfügbarkeit und zeitlicher Zusammenhang bei Alternativbeförderung

Reduced Fares, Public Availability, and Temporal Connection for Alternative Transportation

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The first decision by the European Court of Justice (ECJ) of 2025 (C-516/23) provides significant clarifications regarding the interpretation of the Passenger Rights Regulation. The preliminary ruling addressed questions concerning the application of the regulation, particularly with respect to reduced fares or those not directly or indirectly available to the public, as well as the temporal connection between a canceled flight and alternative transportation.

The ECJ clarified that passengers do not travel “free of charge” under Article 3 (3), first sentence, first variant, of Regulation (EC) No. 261/2004 if they were required to pay air transport taxes and charges when booking their flight. Taxes and charges are integral components of the ticket and are not excluded from it. A passenger is only considered to travel free of charge if the ticket is obtained without any form of compensation.

With respect to the second variant of Article 3 (3), first sentence, of Regulation (EC) No. 261/2004, the ECJ ruled that a ticket is not considered “not directly or indirectly available to the public” if the ticket was booked as part of a promotional campaign. Such campaigns offering reduced fares, even if limited in time or quantity and directed at a specific professional group, are deemed publicly available.

Conversely, a fare is not considered available to the public if the target group for which it is intended is sufficiently well-defined. A group of healthcare professionals described only abstractly, without detailed reference to specific distinguishing characteristics, and for whom ticket issuance does not require prior individual approval, falls under the definition of a ticket available to the public.

Finally, the ECJ addressed the temporal connection between a canceled flight and alternative transportation under Article 8(1)(c) of Regulation (EC) No. 261/2004. According to the ECJ, no temporal connection between the canceled flight and the requested alternative flight is required. Alternative transportation to the final destination may, subject to seat availability and comparable travel conditions, also be requested at a later time.

Don’t hesitate to contact our Aviation Team to learn more about passsenger claims in Austria.

Passenger Mobility Package

The Passenger Mobility Package – An Overview

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Each year, over 13 billion journeys by plane, train, coach, bus, or ferry are made within the EU. In 2022 alone, 55.5 million package holidays were sold in the EU. The protection and continuous improvement of travelers’ rights have thus become a central initiative of the European Union.

In November 2023, the European Commission published the so-called “Passenger Mobility Package.” This package aims, among other things, to strengthen passenger rights and introduce more effective regulations for package holidays.

Strengthening Passenger Rights

The passenger regulations for air, rail, sea, and bus travel foresee largely similar changes. On the one hand, national enforcement bodies – in Austria, for example, the Agency for Passenger and Traveler Rights (apf) – are required to conduct more intensive monitoring. This monitoring should be carried out both announced and unannounced through audits, inspections, surveys, reviews, and examination of documents.

On the other hand, the provision of information regarding passenger rights is to be provided electronically in the future. Additionally, the introduction of a standardized refund form is planned, though its use will not be mandatory for travelers. The proposal also includes solutions for refund issues concerning flight tickets booked through travel agents.

The “Passenger Mobility Package” also contains a new regulation for travelers using multiple modes of transport, such as plane, train, and bus, and who miss connections due to delays. The regulation for multimodal travel addresses this existing gap and includes provisions for reimbursement when connections are missed, while under certain conditions, it allows for liability exemption for online travel agents.

More Effective Regulations for Package Holidays

A significant new aspect of the Package Travel Directive concerns the regulation of vouchers: travelers must be informed that they are not obligated to accept a voucher. Furthermore, each voucher must be protected against insolvency. The insolvency protection does not only apply to vouchers but to refunds in general and should be granted within three months after the traveler has submitted their refund request with all necessary documentation.

A recourse provision allows the tour operator to demand a full refund of all payments from the service provider within seven days if a service is canceled or not provided.

Although no EU-wide travel warning will be introduced, it is clarified that official travel warnings are crucial for assessing a free cancellation. In the wake of the Covid-19 pandemic and given current crisis situations due to natural disasters and wars, this is a particularly important aspect.

Don’t hesitate to contact our Team to learn more about the Passenger Mobility Package.

Incorrect Information Provided by the Tour Operator

Incorrect Information Provided by the Tour Operator

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The European Court of Justice (ECJ) ruled in joined cases C-650/23 and C-705/23 that a passenger who had a confirmed booking for a flight on the basis of a package tour can claim compensation from the operating air carrier within the meaning of Art 7 (1) of Regulation (EC) No 261/2004 even if incorrect information provided by the tour operator led to the passenger believing that the flight originally booked would not be operated, although it took place as planned.

The decision concerns a flight from Heraklion (Greece) to Linz (Austria). One day before the scheduled departure, the passenger was informed by the tour operator of a change in flight times and the destination airport. For this reason, the passenger did not show up for check-in for the flight in question. However, the flight was actually carried out as planned; the tour operator’s information was therefore incorrect. The passenger then demanded compensation from the operating air carrier and based his claim on Article 4 of Regulation (EC) 261/2004 (denied boarding). The Schwechat District Court awarded him this compensation, but the airline appealed against this decision to the Korneuburg Regional Court. The airline’s two main arguments were the missing of the facts of denied boarding and the lack of accountability of a rebooking by the tour operator.

The Regional Court of Korneuburg initiated a preliminary ruling procedure and wanted to know from the European Court of Justice whether a passenger who has a confirmed booking as part of a package tour can claim compensation from the operating airline if the tour operator has informed the passenger without prior consultation with the airline that the booked flight will not be carried out, although in reality it took place as planned.

Referring to its previous case law and the aim of Regulation (EC) 261/2004 to ensure a high level of protection for passengers, the European Court of Justice ruled that the operating air carrier is liable for incorrect information provided by the tour operator to passengers regarding the rescheduling or cancellation of a flight. Furthermore, the ECJ referred to the possibility of the operating air carrier to have recourse against the tour operator in accordance with Art. 13 of the Regulation.

Don’t hesitate to contact our Aviation Team to learn more about passsenger claims in Austria.

Hidden defect in the design

Hidden defect in the design

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The European Court of Justice (ECJ) ruled in case C-411/23 that a hidden defect in the design of an aircraft about which the manufacturer informed about few months in advance may constitute extraordinary circumstances within the meaning of Article 5 (3) of Regulation (EC) No 261/2004.

The case in question pertains a flight from Krakow (Poland) to Chicago (USA) that was scheduled to be operated by an aircraft for which the airline had been notified of a potential defect in the design several months before the scheduled departure. Consequently, several restrictions were imposed on the use of these aircrafts.

Four days prior to scheduled departure, an engine malfunction occurred, which was indeed due to the identified defect in the design. The engine was sent for servicing and due to a global engine shortage, an alternative engine was not available until after the scheduled departure.

As a result, the flight in question had to be operated with an alternative aircraft leading to a three hour delay.

Based on these facts of the case, the operating air carrier was of the opinion that the cancellation was necessary due to extraordinary circumstances and, therefore, refused to pay compensation payments to passengers.

The ECJ determined that the occurrence of such hidden defect in the design that was supposed to be used for the operation of the flight is within the meaning of Article 5 (3) of regulation (EC) No 261/2004 even if the airline had been informed by the manufacturer months before the scheduled departure. Furthermore, the ECJ decided that maintaining a fleet of replacement aircrafts is considered a reasonable measure, provided it is technically and economically feasible, depending on the airline’s capacities.

Don’t hesitate to contact our Aviation Team to learn more about passsenger claims in Austria.