Your flight landed at a different airport – compensation, taxi or neither?

Under Article 2(l) of Regulation (EC) No 261/2004, cancellation means the non-operation of a flight which was previously planned and on which at least one place was reserved. The Court of Justice of the EU has held that it is not enough that the aircraft left in accordance with the scheduled itinerary: it must also have reached its destination as it appears in that itinerary. A diverted flight must therefore, as a rule, be regarded as cancelled. But the Court makes an exception: where the aircraft lands at an airport which serves the same town, city or region as the one booked, it would, according to the Court, be consistent neither with the purpose of the regulation nor with the principle of equal treatment to treat the diversion in the same way as a cancellation. Compensation cannot then be claimed on that ground. The question is assessed instead under the rules on delay. Where the airport does not serve the same town, city or region, however, the general rule applies. The Court of Justice has confirmed that such a diversion may give rise to compensation for cancellation (order of 6 October 2021 in Case C‑253/21, TUIfly).

The question was decided on 22 April 2021 in Case C‑826/19, WZ v Austrian Airlines AG, by the Fourth Chamber of the Court of Justice following a request for a preliminary ruling from the Landesgericht Korneuburg in Austria. The passenger had a single booking for a journey from Klagenfurt via Vienna to Berlin Tegel on 21 May 2018, with arrival at Tegel scheduled for 22.20. As the aircraft was unable to land at Tegel because of the prohibition on night flights in force, it was diverted to Berlin Schönefeld, where the passenger arrived at 23.18.

The Court explains the equal-treatment point with an example. If the diversion counted as a cancellation, a passenger who, at the end of the transfer, reached the airport for which the booking was made with a delay of less than three hours would be granted compensation, while a passenger whose flight landed at the correct airport with a comparable delay would get nothing, despite a similar inconvenience. The Court stated at the same time that, on such a diversion, a passenger is, as a rule, entitled to compensation under the regulation where he or she reaches his or her final destination three hours or more after the arrival time originally planned by the operating air carrier.

The relevant point in time is not when the aircraft landed at the alternative airport, but when, at the end of the transfer, you actually reach the airport for which the booking was made, or, as the case may be, another close-by destination agreed with the operating air carrier. The time spent waiting for the transport and the journey time between the airports therefore count. Conversely, as the Court also points out, this means that a carrier can avoid the obligation to pay compensation under Article 7 if it ensures that passengers arrive without a delay of three hours or more beyond the original planned arrival time.

The three-hour threshold itself does not come from this judgment but from Joined Cases C‑402/07 and C‑432/07, Sturgeon and Others, of 19 November 2009. There, passengers on long-delayed flights were treated in the same way as passengers on cancelled flights for the purposes of the right to compensation, but compensation is not payable if the carrier can prove extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

This article describes the rules that apply until 22 October 2027. From 23 October 2027, Regulation (EU) 2026/2202, which amends Regulation 261/2004, applies. Under the new definition in Article 2(l), a flight that is diverted to an airport other than the one on the ticket, and cannot continue there, expressly counts as a cancellation. The exception for airports serving the same town, city or region is set out in the new Article 5(6). It applies only if the airline provided transport to the airport of arrival indicated on the ticket and the delay at arrival there does not exceed three hours.