I beg to differ.

I very much doubt that an English court would have been prepared to adopt such an interpretation. I suspect that the court would instead have pointed to the glaring inconsistency in the treatment of two cases in which the passenger suffers the same disadvantage, where the two cases are divided by a pure technicality which is capable of being manipulated by the airlines. The court could well have said that the legislation was patently defective and required revision at the earliest opportunity. The court might even - after deeply probing any claimed policy reasons behind the difference in treatment - have said that it would be irrational for the legislature to maintain the difference in treatment between these two types of case.

The consequence of such pronouncements would be that it would become nigh on politically impossible for the executive not to propose, and the legislature not to adopt, amendments to the legislation to make it make sense. If there are other considerations which the court was not able to take into account (as a court can only rule on the basis of what the parties before it place before it), they can be taken into account at that stage. In other words, there would be a rapid legislative fix - provided that this is still the proper course of action when everything is taken into account, not just what was available to the court.

Thereafter, the courts would be able to rule on any disputed compensation claims on the basis of legislation that said what it meant and meant what it said.

All of this would take place on the basis of the policy view which you prefer, which is that the underlying policy position and the ultimate legislative result is a reasonable and desirable one.

This is why many English lawyers are so baffled by the way in which the ECJ takes it upon itself to (in effect) legislate on the basis of incomplete and partial information. It's not that the result is necessarily wrong. It's the ECJ's process that appears to be wrong.