International Journal of Tourism, Travel and Hospitality Law doing so, the EU legislator expanded the definition of »denied boarding« which now covers not only overbooking but all circumstances in which an air carrier might refuse to carry a passenger. b. Cancelled flight Regulation 261/2004 defines the term »cancellation« as non-operation of a flight which was previously planned and on which at least one seat was reserved.10 Due to the broad definition, it was unclear for some time whether this also includes (i) cases where the plane took off but was forced to return to the departure airport during the flight, and (ii) cases where the plane lands at a different airport than originally planned. As regards point (i) the CJEU emphasised that »cancellation« refers not only to the situation in which the airplane in question fails to take off at all, but also covers the case in which that airplane took off but, for whatever reason, was subsequently forced to return to the airport of departure. 11 In its decision the CJEU followed the opinion of AG Sharpston, who pointed out that in such cases the transportation cannot be considered completed since the carrier has not completed any part of the planned route. Passengers are in the same position as if they had remained at the departure airport.12 Regarding point (ii), it is important to note that for a flight to be considered completed, it is not sufficient for the aircraft merely to take off, but it must arrive at the intended destination as planned.13 When a flight is redirected to another airport, it is deemed cancelled, entitling the passenger to compensation.14 However, if the carrier immediately proposes an alternative route with comparable transport conditions to the initially intended airport, this is to be considered a delay rather than a cancellation.15 Another issue addressed by the CJEU which is also linked to flight cancellation is how to handle situations where the airline reschedules a flight several hours earlier than the initially scheduled departure time. In the Eurowings16 case the CJEU deliberated on whether such a flight should be treated as cancelled. The Regulation addresses cases of earlier flight departures only in the context of a route change,17 limiting the option for the carrier to offer an alternative route to the passenger in case of cancellation to a maximum of one to two hours prior the originally scheduled departure. These limitations arise from the fact that a significant advancement in departure time can cause similar inconveniences as a flight delay, as passengers may lose the opportunity to organize and manage their time.18 In accordance with a broad interpretation of passenger rights, it can be concluded that rescheduling a flight to a significantly earlier time is treated similarly to its cancellation.19 10 Art. 2(l) of the Regulation. 11 Case C-83/10, Aurora Sousa of 13 October 2011, para. 35. 12 Opinion of Advocat General Sharpston in case C-83/10, Aurora Sousa of 28 June 2011, para. 35. 13 Case C-826/19, Austrian Airlines AG of 22 April 2021, para. 35. 14 Ibid., para. 36. 15 Commission Notice – Interpretative Guidelines on Regulation (EC) No 261/2004 and on Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council, pp. 5-6, para. 3.2.4. 16 Joined cases C-146/20, C-188/20, C-196/20 in C-270/20, Eurowings of 21 December 2021. 17 Art. 5(1)(ii) and (iii)(c) of the Regulation. 18 Joined cases C-146/20, C-188/20, C-196/20 in C-270/20, Eurowings of 21 December 2021, para. 76. 19 Ibid., paras. 79 and 80.
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