Airhelp Limited v Austrian Airlines AG (2022) C-451/20 CJEU (3rd Chamber)
Court of Justice of the European Union, Third Chamber
Facts
See [7] to [9]:
7
NT had a reservation for a connecting flight to connect Chişinău (Moldova) to Bangkok (Thailand), via Vienna (Austria). It was planned that the air carrier would operate the two flights making up this connecting flight which gave rise to a single reservation. The first of these connected Chişinău to Vienna, with a scheduled departure and arrival on May 29, 2019 at 3:55 p.m. and 4:40 p.m. respectively. The second flight segment then connected Vienna to Bangkok, with a departure and arrival scheduled on May 29, 2019 at 11:20 p.m. and May 30, 2019 at 2:20 p.m. respectively. According to the great circle route calculation method, the distance between Chişinău and Bangkok is more than 3500 km.
8
The flight from Chişinău to Vienna was canceled less than seven days before the scheduled departure. Consequently, Austrian Airlines changed NT’s reservation by transferring it to another flight, bearing the number TK 68 and connecting Istanbul (Turkey) to Bangkok, with a scheduled departure and arrival on May 30, 2019, respectively at 1:25 a.m. and at 3.00 p.m. It is apparent from the reference for a preliminary ruling that it was not possible to determine how and at what time NT was transported from Chişinău to Istanbul. The flight connecting Istanbul to Bangkok reached the latter destination at 4:47 p.m., ie with a delay of 1 hour and 47 minutes compared to the scheduled schedule of this rerouting flight.
9
Assuming that the flight from Istanbul to Bangkok had not been delayed, NT would have arrived at its final destination, Bangkok, 40 minutes later than if it had been able to travel according to its original plan via Vienna. However, since this Istanbul-Bangkok flight was delayed by 1 hour and 47 minutes, NT actually arrived at its final destination 2 hours and 27 minutes after the scheduled arrival of the connecting flight originally booked.
10
NT assigned to Airhelp the right it had against Austrian Airlines under Article 7 of Regulation No 261/2004.
11
Airhelp brought an action before the Bezirksgericht Schwechat (District Court, Schwechat, Austria) for compensation in the amount of 300 euros, on the ground that Austrian Airlines had not offered NT rerouting allowing it to reach its final destination within two hours of the scheduled arrival of the originally booked connecting flight, while acknowledging that Austrian Airlines was entitled to claim a reduction of half of the amount of compensation provided for in Article 7, paragraph 1 of Regulation No 261/2004 , pursuant to paragraph 2 of that same article.
Issue(s)
Does EU Regulation 261/2004 apply where both the origin and destination are outside the EU, i.e. in a third country, and only a stopover point is in the EU?
Discussion
See [26] to [41], and in particular [41]:
26
It is in this sense that the Court has consistently held that a flight with one or more connections having been the subject of a single reservation constitutes a group for the purposes of the right to compensation of passengers provided for by the Regulation No 261/2004, implying that the applicability of Regulation No 261/2004 should be assessed with regard to the initial place of departure and the final destination of that flight (see, to that effect, judgment of 11 July 2019, České aerolinie , C‑502/18 , EU:C:2019:604 , point 16 and case-law cited, as well as order of 12 November 2020, KLM Royal Dutch Airlines, C‑367/20, EU:C:2020:909 , point 19 and cases cited).
27
That interpretation is also supported by the case-law of the Court, according to which, for the purposes of the lump-sum compensation provided for in Article 7 of Regulation No 261/2004, the only important factor is, on the one hand, the delay observed in relation to at the scheduled arrival time at the final destination, understood as the destination of the last flight taken by the passenger concerned and, on the other hand, the distance between the place of first take-off and the final destination, disregarding any connecting flights (see, to that effect, judgment of 26 February 2013, Folkerts, C‑11/11 , EU:C:2013:106 , paragraph 35 , and order of 22 April 2021, British Airways, C‑592/20 , unpublished, EU:C:2021:312, point 33 and the case-law cited).
28
Indeed, it cannot be considered that a connecting flight must be understood as a whole for the purposes of compensation under Article 7 of Regulation No 261/2004, whereas such a flight should be artificially segmented for the purpose of determining the scope of that Regulation.
29
Thirdly, the objective of Regulation No 261/2004 does not preclude such an interpretation of Article 3(1) of that regulation from being set aside. The objective of ensuring a high level of protection for air passengers does indeed require that Regulation No 261/2004 be interpreted in accordance with that objective, but that cannot lead to the undue extension of the scope of that regulation to situations that do not fall under this one.
30
It follows that Article 3(1) of Regulation No 261/2004 cannot be interpreted as meaning that a passenger on a connecting flight whose initial place of departure and final destination are located in third country may rely on the provisions of this regulation on the sole ground that one or more stopovers of the segments of this flight are located on the territory of the Union.
31
In any event, a reading according to which, in the context of connecting flights, a stopover at an airport situated in the territory of the Union is sufficient to make Regulation No 261/2004 applicable would not only run counter of the settled case-law of the Court, recalled in paragraphs 25 and 26 of this judgment, but would also contravene the requirements of Article 3(1) of that regulation and the principle of legal certainty.
32
In this respect, it should be recalled that Article 3(1) of Regulation No 261/2004 clearly provides for two distinct hypotheses in which this regulation is applicable to the passengers concerned. As is apparent from paragraph 21 of the present judgment, the first situation, referred to in that provision, under (a), and which concerns all passengers departing from an airport situated in the territory of the Union, is not subject under any other condition or cause of inapplicability, while the second case, referred to in that provision, under b), which concerns all passengers departing from an airport located in a third country and arriving at an airport located in the territory of the Union and provided that their flight was performed by a Community carrier, nevertheless excludes the applicability of the said Regulation to such passengers if they have received benefits or compensation and assistance in the third country.
33
However, the interpretation according to which a passenger could rely on the provisions of Regulation No 261/2004 on the sole ground that the airport of a stopover of his connecting flight is located on the territory of the Union is incompatible with the second hypothesis, referred to in Article 3(1)(b) of Regulation No 261/2004.
34
First, such an interpretation would result in passengers whose initial place of departure or final destination not corresponding to an airport situated on the territory of the Union would necessarily come under at least the first hypothesis, referred to in Article 3(1)(a) of Regulation No 261/2004, whereas passengers falling under the second scenario, referred to in that Article(1)(b), although their final destination is an airport located on the territory of the Union, would only be covered by this regulation if, on the one hand, their flight was carried out by a Community carrier and, on the other hand, they are not concerned by the cause of inapplicability referred to in paragraph 32 of this judgment.
35
Secondly, such an interpretation would deprive Article 3(1)(b) of Regulation No 261/2004 of part of its meaning, in so far as its applicability, even in cases where the final destination of the passenger concerned corresponds to an airport situated on the territory of the Union, would be limited solely to passengers on direct flights to the Union.
36
Thus, the passenger of a flight from a third country and bound for the Union with a connection in an airport located on the territory of the Union would automatically come under Article 3(1)(a), of that regulation, whereas the same would not apply to a passenger on a direct flight linking exactly the same airport of departure and the same final destination if, moreover, his flight was not provided by a carrier Community airline or if it is affected by the ground for inapplicability also referred to in Article 3(1)(b) of the same regulation.
37
Indeed, in certain situations, such as that at issue in the main proceedings, such an interpretation would result in the two cases referred to in Article 3(1) of Regulation No 261/2004 being simultaneously applicable to the same scenario.
38
On the one hand, in this case, the place of stopover of the first flight segment is located on the territory of the Union and is identical to the place of departure of the second flight segment, the journey is carried out by an air carrier Community, and it does not appear from the file submitted to the Court that NT received benefits or compensation and assistance in the third country where the airport of departure was located. NT could therefore a priori rely on the provisions of Regulation No 261/2004 under Article 3(1)(b) thereof.
39
On the other hand, if Article 3(1) of Regulation No 261/2004 had to be interpreted as meaning that a stopover at an airport situated in the territory of the European Union is sufficient to make that regulation applicable to the passenger concerned, NT could also consider that his situation falls within the hypothesis envisaged in said Article, paragraph 1, sub a). It follows that, in a situation such as that at issue in the main proceedings, it is not possible to determine with certainty under which of the two circumstances referred to in Article 3(1) of that regulation the passenger concerned falls.
40
Thirdly and lastly, such an interpretation would have the consequence that, with regard to the concept of ‘connecting flights’, this would have to be understood sometimes as a ‘unit’ made up of two or more flights constituting a whole and sometimes as two or more separate flights. Such inconstancy in the scope conferred on this concept would infringe the principle of legal certainty which requires, according to settled case-law, that EU legislation be certain and that its application be foreseeable for individuals (see, to this effect, judgment of 14 October 2010, Nuova Agricast and Cofra v Commission, C‑67/09 P , EU:C:2010:607 , paragraph 77 and the case-law cited).
41
Having regard to all of the foregoing considerations, the answer to the first question must be that Article 3(1) of Regulation No 261/2004 must be interpreted as meaning that that regulation does not apply to a connecting flight which has been the subject of a single reservation and which is composed of two flight segments to be operated by a Community air carrier when both the airport of departure of the first flight segment and the arrival airport of the second flight segment are located in a third country, only the airport where the stopover takes place being located on the territory of a Member State.
Useful for
EU261 does not apply where both origin and destination outside the EU
