Duty to inform passengers of flight cancellation lies with operating carrier
Bas Jacob Adriaan Krijgsman v Surinaamse Luchtvaartmaatschappij N.V. 
Soon after its bird-strike decision, the Court of Justice of the European Union (CJEU) issued yet another decision regarding the interpretation of EU Regulation 261/2004 that deals with the rights of passengers in cases of cancellation, delay and denied boarding.
The CJEU ruled that should an air carrier be unable to prove that a passenger was informed of a cancellation of his flight more than two weeks prior to the scheduled departure time, it is obliged to pay compensation to that passenger. Such an obligation does not only apply in cases where the contract of carriage is concluded with the passenger directly, but also when this is done via a travel agency.
Mr Krijgsman was supposed to take a flight from Amsterdam to Paramaribo on 14 November 2014. He had booked his round trip online via a travel agent. The flight was operated by Surinaamse Luchtvaart Maatschappij (Surinam Airways).
Surinam Airways informed the travel agent of the cancellation on the 9 October 2014, but the travel agent only informed the passenger on the 4 November 2014 — ten days before the scheduled departure.
When the passenger claimed compensation based on Regulation 261/2004, Surinam Airways refused since it had notified the cancellation on the 9 October 2014 to the travel agent — more than fourteen days before the scheduled date of departure.
The travel agent declined liability arguing it was not responsible for flight schedule changes. It argued that the air carrier was responsible for updating its passengers, of whom the email address had been sent to the carrier upon booking.
The Dutch District Court of the Northern Region in the Netherlands concluded that Regulation 261/2004 failed to specify the circumstances under which passengers need to be informed by the air carrier of a cancellation when such a flight had been booked via a website or a travel agency. The Dutch District Court hence requested a preliminary ruling of the CJEU.
In rendering its judgment, it considered the following elements:
- EU Regulation 261/2004 provides that passengers are entitled to compensation when their flight is cancelled unless they are informed at least two weeks in advance.
- The burden of proof that such information was provided to the passenger lies on the operating carrier.
- The context and objective of the provisions of EU Regulation 261/2004 need to be taken into account.
- Surinam Airways was unable to demonstrate that Mr Krijgsman was informed of the cancellation more than two weeks prior to scheduled departure time, Surinam Airways is liable to pay compensation to the passenger.
The court concluded that, contrary to what Surinam Airways has argued, the above interpretation not only applies when the contract for carriage was entered into with the carrier directly, but also when this is done via a third party such as a travel agency.
Only the operating carrier is liable to compensate passengers if it fails to fulfil its obligations under the Regulation. This includes those obligations relating to notification in case of cancellation. This is without prejudice to the carrier’s right to seek reimbursement from the travel agent under applicable national law.
Whereas this decision is not as unexpected or as scope-stretching as previous decisions such as Sturgeon, Nelson and Wallentin-Hermann, carriers should review their agreements with third parties selling tickets on their behalf in great detail and ensure that information to contact the passenger directly is provided.
The common practice of carriers to inform the travel agents who will then subsequently contact the passengers exposes them to additional liabilities under Regulation 261/2004 by virtue of the present judgment.
This decision can however be considered as not broadening the scope of the Regulation too much.
Paragraph seven of the Regulation already provides that:
- The obligations the Regulation creates rest with the operating air carrier.
- The burden of proof concerning the questions as to whether and when the passenger has been informed of the cancellation rest with the operating air carrier.
These provisions were also referred to by the CJEU in its judgment.
Most cancellations are not known to the carrier two weeks in advance.
Sub-paragraphs (ii) and (iii) of Article 5(1)(c) provide the following regime:
- If passengers are informed of the cancellation between two weeks and seven days before departure, and are offered re-routing that allows them to take off not more than two hours before the scheduled departure time and allows them to reach their final destination within less than four hours after the scheduled arrival time, no compensation is due.
- If passengers are only informed less than seven days prior to departure, then the re-routing obligation leaves less room: carriers need to provide for an alternative flight departing not more than one hour before scheduled departure time and arrives less than two hours after scheduled arrival time to dodge the duty of compensation (iii).
The extraordinary circumstances defence remains valid in all cases of flight cancellations, in the light of the re-routing possibilities discussed so far.