Direct flight or indirect flight, that is (still) the question

The Artists’ Resale Right (“ARR”) consists in the entitlement of visual artists to receive a royalty (i.e. a share of the proceeds) on the re-sale of their original works, provided that an art-market professional is involved in that sale and the sale price is above a specified minimum threshold.

Regulation delay of flights

Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishes common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.

Article 7 of the Regulation determines the amounts of compensation: € 250 for all flights of 1500 kilometres or less and  € 400 for all intra-Community flights of more than 1500 kilometres.

Case law

There have been several decisions of the European Court of Justice on this Regulation. One of the best known cases is the Sturgeon case. The Court decided that passengers whose flights are delayed may be treated as passengers whose flights are cancelled. Those passengers may thus rely on the right to compensation when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier. A technical problem in an aircraft which leads to the cancellation or delay of a flight is not covered by the concept of ‘extraordinary circumstances’.

Direct flight or indirect flight

Ms Irene Uhden from Hamburg had booked a flight from Rome to Hamburg with KLM Royal Dutch Airlines. She was supposed to make a stop in Amsterdam. The flight from Rome left later than originally scheduled and as a result she missed the connecting flight in Amsterdam to go to Hamburg the same day. She only arrived in Hamburg the following morning and overall she had a delay of more than 11 hours.

KLM granted her a compensation of € 250. Ms Uhden did not agree and claimed an additional compensation of € 150 before the District Court (Amtsgericht) of Hamburg. The District Court denied the claim and stated that Ms Uhden is not entitled to any sum more than KLM had paid already, since for the calculation of the compensation it is decisive which is the direct distance between Rome and Hamburg (1326 KM). Ms Uhden appealed. She was of the opinion that the defendant has to pay because the ‘distance’ that determines the height of the compensation to pay should be calculated in the present case as the sum of the actual travelled routes, from which it follows that the routes Rome-Amsterdam (1302 km) and Amsterdam and Hamburg (378) should be added and therefore in total 1680 km.

In the appeal the Court (Landgericht) of Hamburg requested a preliminary ruling to the European Court of Justice in Luxembourg. The question was whether article 7 should be interpreted as meaning that the term “distance” relates only the direct distance between the point of departure and the last destination, regardless of the distance actually flown in the individual case? 

The question will not be answered. Probably the costs of further proceeding would be more than any possible outcome for Ms Uhden. By letter of 7 June 2016, the Hamburg Regional Court informed the European Court that there was no longer a dispute before him. The President of the European Court has ordered on 20 June 2016 that the case be removed from the register.

We have to wait until the moment that another passenger will claim ‘as a matter of principle’ an additional amount of € 150.


Roderick D. Rischen

Rischen & Nijhuis, advocaten

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