Plaintiff had booked a round trip flight FMO-FRA-GRU-FLN-GRU-MUC-FMO with defendant air carrier (LH). The section GRU-MUC was a codesharing flight with RG, recognizable by indication of both flight numbers (LH/RG) and the note “operated by RG”. The flight GRU-MUC was cancelled and plaintiff rerouted to a later LH flight to FRA. Due to delayed departure of the latter flight of more than 4 hrs, plaintiff missed her connecting flight to FMO. As the next available flight FRA-FMO was also cancelled she was rerouted once more to CGN.Plaintiff sued LH for compensation of EUR 600 under Reg. (EC) 261/2004. First instance court granted the claim, court of appeal dismissed same. Upon further appeal of plaintiff, German Supreme Court (BGH) repealed the judgement remanding the case to the court of appeal:”Operating carrier” in art. 5 par. 1 lit c of Reg. 261/2004 had to be interpreted the same way as “actual carrier” in art. 39 Montreal Convention, thus meaning the carrier which actually operated the flight regardless of an exclusive contractual relationship with another carrier. The purpose of a high level of consumer protection would not require a different interpretation. In case of code sharing only the carrier actually operating the flight was able to influence its performance. The purpose of the provision would not allow to regard the other cooperation partner of the code share flight as being “operating” same as well.Operating carrier of the flight GRU-MUC had therefore only been RG resulting into no liabilty of LH under Reg. 261/2004 for the cancellation of the original flight GRU-MUC.Anyway, this was not sufficient to dismiss the claim as the LH flight GRU-MUC which plaintiff was rerouted to was delayed for more than 4 hrs resulting into a delayed arrival of considerably more than 3 hrs. Given ECJ decision C-402, 432/7 (Sturgeon/Condor and Böck/Air France), passengers suffering such delay had a similar claim for compensation like passengers of cancelled flights. The claim for compensation could therefore be based on the delay of the substitue flight.Court of appeal will therefore have to render a new judgement which will have to consider whether the technical problems – which due to its conclusions had caused the delay – had been of a nature that would constitute “extraordinary circumstances” under art. 5 par. 3 of Reg. 261/2004.Full text of BGH judgement Xa ZR 132/08 of Nov. 26, 2009 available in German here>>.
