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In code-share arrangements under Regulation No 261/2004, passengers may get to choose which airline pays compensation if they are subject to a delay of more than three hours.

The regulation broadly applies to any passenger:

  • departing from an airport located in a Member State to which the Treaty applies, or
  • departing from an EU member state, or
  • travelling to an EU member state on an airline based in an EU member state

But what happens when there are two flights booked as a single reservation that depart from a Member State and travel to a non-Member State via a separate non-Member State and the passenger then suffers a delay on the second portion of trip? The passenger is not able to claim compensation, right? According to the Court, they can…

The Case

A case heard by the European Court of Justice (ECJ) recently found that if the above situation unfolds, where the second flight was operated under a code-share agreement, the passengers can in fact make a claim against the carrier that performed the first portion of the journey.

In this case, the passengers had booked a single reservation with Czech carrier, České aerolinie (‘České’) for flights from Prague to Bangkok via Abu Dhabi. The first flight was to be performed by České, with the second flight being performed by non-community carrier, Etihad Airways (Etihad).

Although the first flight was performed as expected, the second flight arrived at the destination over eight hours late.

The question posed to the court was whether there was an obligation to a Community carrier to take responsibility and pay compensation where they operated their leg of the flight as planned, but the second flight arrived at the final destination airport more than three hours late.

The Outcome

The Court upheld that České would be responsible for paying the compensation to the airline passengers. The court emphasised that in the case of flights with one or more connections that are booked as a single reservation, an operating air carrier that has performed the first flight cannot  bypass their responsibilities by claiming that the subsequent flight, operated by another air carrier, was imperfect.

It is worth noting that the first carrier (České) can bring an action against the latter (Etihad) in order to obtain compensation for the pay-out. 

The outcome of this decision will no doubt mean that savvy airlines will now be checking their indemnity position in their codeshare and alliance arrangements to see exactly where they stand.

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