Re-routing at the earliest opportunity: must the airline put you on another carrier's flight?

Article 8(1) opens by stating that passengers shall be offered the choice between three options. The first is reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket for the part or parts of the journey not made, and for the parts already made, if the flight is no longer serving any purpose in relation to your original travel plan, together with, when relevant, a return flight to the first point of departure at the earliest opportunity. The second is re-routing to the final destination at the earliest opportunity, under comparable transport conditions. The third is re-routing to the final destination at a later date at the passenger's convenience, under comparable transport conditions, subject to availability of seats. If the flight is part of a package holiday, there is an exception for reimbursement (Article 8(2)): if the package travel rules give you the right to get the cost of the air ticket back from the tour organiser, the Court of Justice has held (C‑163/18) that you can no longer claim the ticket price from the airline on the basis of the Regulation, even where the tour organiser is financially incapable of paying. The exception concerns reimbursement only.

On the wording, then, it is the passenger who chooses the route forward. The duty to offer the choice under Article 8 arises, among other situations, when a flight is cancelled (Article 5(1)(a)) and when a passenger is denied boarding against their will (Article 4(3)). For a long delay there is a narrower version: where the delay is at least five hours, the carrier must offer the assistance set out in Article 8(1)(a), that is to say the reimbursement route (Article 6(1), point (iii)). According to the Commission's interpretative guidelines, the choice under Article 8(1) is, as a general principle, made only once, provided you were correctly informed of the available options. If you then accepted reimbursement, the carrier is in principle no longer obliged to arrange re-routing as well, but any right to compensation under Article 7 may still apply. So do not accept the first offer without thinking it through, particularly if you need to reach your destination.

The Fourth Chamber of the Court of Justice addressed the requirement on 11 June 2020 in Case C‑74/19, LE v Transportes Aéreos Portugueses SA. What the Court interpreted was the exemption in Article 5(3): if the carrier wants to avoid paying compensation by invoking extraordinary circumstances, it must also have taken all reasonable measures to limit the consequences for the passenger. In making that assessment, the Court relied on the requirement in Article 8(1) of reasonable, satisfactory and timely re-routing of passengers affected by a cancellation or long delay. The case itself concerned a missed connection following a delay.

The Court held that a carrier seeking to be released from its obligation to pay compensation cannot, in principle, merely re-route the passenger on its own next flight if that flight arrives only on the day after the originally scheduled arrival. The carrier must deploy all the resources at its disposal to ensure reasonable, satisfactory and timely re-routing, including seeking alternative direct or indirect flights which may be operated by other air carriers.

According to the operative part, re-routing on the carrier's own flight in that situation is in principle accepted only in two cases: where there was no other possibility of re-routing on a direct or indirect flight, operated by the carrier itself or by any other air carrier, arriving at a time which was not as late as the carrier's next flight, or where such re-routing would have constituted an intolerable sacrifice for the carrier in the light of the capacities of its undertaking at the relevant time. If the carrier settled for its own next flight without looking any further, the judgment says that is not the kind of reasonable measure that releases it from the obligation to pay compensation. In C‑354/18 the Court had also held that, in making a specific offer of re-routing under Article 8(1)(b), the carrier must take into account, among other factors, the arrival time and whether the re-routing is practicable through its own good offices or requires the assistance of another air carrier. In addition, where the town or region is served by several airports and you are re-routed to an airport other than the one for which the booking was made, Article 8(3) says the carrier must also bear the cost of transferring you from there to the airport for which the booking was made, or to another close-by destination agreed with you.