Belgian Supreme Court rules on compensation for delayed flights

G.M. v Thomas Cook Airlines Belgium NV [12.10.2017]

On 12 October 2017, the Belgian Hof van Cassatie (the Belgian Supreme Court) finally ruled on the applicability of delay cases under EC Regulation 261/2004 (the Regulation) establishing common rules on compensation and assistance to passengers in the event of denied boarding, cancellation or delayed flights.

The decision

The case was referred to the Supreme Court pursuant to consistent case law of the Justices of Peace of Zaventem and Vilvoorde who ruled that the Regulation does not apply to delay cases. They held that the wording of Article 7 of the Regulation, which reserves the right to compensation in cancellation cases, is clear and did not need to be clarified by the Court of Justice of the European Union (CJEU). In light of these rulings, the case was referred to the Belgian Supreme Court.

The Supreme Court overturned these judgments and followed the interpretation given by the CJEU in the cases Sturgeon (2009) and Nelson (2012). The CJEU ruled that Articles 5, 6 and 7 of the Regulation should be interpreted as meaning that passengers whose flight has been delayed, resulting in arrival at their final destination over three hours later than scheduled, should be treated in the same way as passengers whose flight was cancelled, therefore broadening the right to compensation in delay cases.

The Supreme Court concurred with the reasoning of the CJEU. Passengers who incur a delay of over three hours are held to find themselves in a similar situation as passengers whose flight is cancelled. According to the CJEU, they experience the same inconveniences and are consequently entitled to receive the same compensation as defined in Article 7 of the Regulation.

Further, the Supreme Court ruled that the interpretation given by the CJEU not only binds the national referring judge, but every other national judge as well. This ruling, therefore, implies that Belgian courts are bound by the very wide range of CJEU interpretative judgments that have been pronounced since the entry into force of the Regulation. The Supreme Court added that, as the CJEU's interpretations are binding, opposing the application of the Regulation in delay cases would result in an unfair treatment of the passengers and that doing so would go against the objective of the Regulation.


The Belgian Supreme Court was one of the last high courts in Europe to pronounce itself on the question of whether the right to compensation also applies to delay cases under the Regulation; in light of this, the ruling was not surprising nor unexpected.

However, big question marks still exist, especially regarding the compatibility of such forfeiture amount of compensation with the right to compensation as provided for in the Montreal Convention (1999). The Montreal Convention provides limits of liability for damages payable in delay cases and requires proof of the damages sustained. Furthermore, from a factual perspective, it can (and probably will) be debated whether a delay of, for instance, four hours results in the same inconvenience as a cancelled flight.