Passenger’s right to re-routing in case of flight cancellation (Art. 8)

The airline’s notification of cancellation and offer to reschedule the trip sent to the ticket intermediary cannot be equated with notification to the passengers themselves, according to a new judgment from the Western High Court.

If a flight is canceled, passengers are entitled to a refund of the ticket price within 7 days, re-routing under comparable transport conditions at the earliest opportunity or re-routing under comparable transport conditions at a later date at the passenger’s choice, subject to availability.

This follows from Art. 8(1) of the Air Regulation, cf. Art. 5(1)(a).

It is up to the airline to prove that passengers have been offered a choice as stated above – the airline is said to have the “burden of proof”.

In the situation where the air ticket has been purchased through a ticket intermediary (such as Kiwi.com, Flybillet.dk and Travellink), and where the airline has offered the above choice to the passengers by sending an email to the incorrect email address provided to the airline by the ticket intermediary, the email cannot be considered to have reached the passengers. It makes no difference that the airline believed that the provided – incorrect – email address actually belonged to the passengers.

When the e-mail cannot be considered to have reached the passengers, it also means that the airlinehas not fulfilled its obligations under Art.Article 8(1) of the Aircraft Regulation, cf. Article 5(1) (a). Thus, the airline will also be liable for the passengers’ expenses for their own re-routing of thetrip, the new judgment from the Western High Court states.

The problem is that some ticket agents set up passengers (without their knowledge) with the airline under fictitious – non-existent – email addresses and phone numbers. As a result, such subsequent notifications from the airline about delays, cancellations and rebooking options do not reach the passengers.

It follows from the CJEU’s ruling of 27 September 2022 (Case C-307/21), paragraph 27, that the airline can only fulfill its obligations under the Regulation by sending the information to the ticket intermediary if the passenger has expressly authorized the ticket intermediary to receive the forwarded information from the airline and the airline is aware of this authorization.

According to today’s judgment from the Danish Western High Court and the European Court of Justice’s case C-307/21, it is the airline that must document 1) that the passengers have given such express permission and 2) that the airline was aware of the permission.