EU항공여객운송 체제에서의 운항지연과 운항취소의 판단기준 -2009년 EU사법재판소 Sturgeon 판결의 비판적 검토-

This paper reviews the EU Cases C-402/07 and C-432/07, Sturgeon v. Condor Flugdienst GmbH and Böck and Lepuschitz v. Air France [2009] ECLI:EU:C:2009:716. The firtst issue of the Cases is whether, in order to consider a situation to be a cancellation the original flight scheduling is not abandoned, regardless of how long the delay, and whether it would constitute a cancellation. The second issue is whether an instance in which passengers are transported significantly later on a flight operating under a modified flight number carrying only a part of the passengers booked on the initial flight, together with other passengers not booked on the initial flight, constitutes a cancellation rather than a delay. ECJ held that articles 2(l), 5 and 6 of Regulation (EC) No 261/2004 must be interpreted as meaning that a flight which is delayed, irrespective of the duration of the delay, even if it is long, cannot be regarded as cancelled where the flight is operated in accordance with the air carrier’s original planning. Also, ECJ said that articles 5, 6 and 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. This paper reviews and criticizes some issues as to Sturgeon case by examining EU Regulations and practical point of views.