Q, R, S v United Airlines Inc. (2022) C‑561/20 CJEU (4th Chamber); ECLI:EU:C:2022:266
Court of Justice of the European Union, Fourth Chamber
Facts
10 The applicants in the main proceedings made a single reservation, via a travel agency, with the Community carrier Deutsche Lufthansa AG (‘Lufthansa’), for a connecting flight from Brussels (Belgium) to San José (United States), with a stopover in Newark (United States).
11 The entire connecting flight was operated by United Airlines, an air carrier established in a third country. The applicants in the main proceedings arrived at their final destination with a delay of 223 minutes.
12 By a letter of 6 September 2018, the company Happy Flights BVBA, to which the claim lodged by the applicants in the main proceedings had been assigned, gave United Airlines formal notice that it was liable to pay compensation in the amount of EUR 600 per person for that delay, namely a total amount of EUR 1 800, pursuant to Regulation No 261/2004.
13 On 4 October 2018, United Airlines replied to Happy Flights, claiming that that regulation was not applicable, on the ground that that delay had occurred during the second leg of the flight concerned.
14 By a letter of 5 October 2018, Happy Flights replied to United Airlines, referring to the case-law of the Court to refute its position and urged it to pay the compensation referred to in paragraph 12 above.
15 By a letter of 10 October 2018, United Airlines in turn replied to Happy Flights.
16 On 11 October 2018, Happy Flights sent a letter of formal notice to United Airlines. On the same day, the latter informed Happy Flights that it was maintaining its position.
17 On 3 May 2019, Happy Flights, again putting United Airlines on notice to make payment, informed it once more that the claim that had been assigned to it had been transferred to the applicants in the main proceedings.
18 On 22 July 2019, the latter summoned United Airlines to appear before the Nederlandstalige ondernemingsrechtbank Brussel (Brussels Companies Court (Dutch-speaking), Belgium), the referring court, seeking an order requiring it to pay the compensation referred to in paragraph 12 above, together with default interest as from 6 September 2018 and statutory interest.
Issue(s)
19 In that context, that court has doubts as to the answer to be given to certain arguments raised by United Airlines, which concern both the applicability of Regulation No 261/2004 and its validity.
20 In the first place, United Airlines disputes the applicability of Regulation No 261/2004 where a long delay occurs during a flight to and from airports located in the territory of a third country, even if it is the second and last leg of a connecting flight the first leg of which is operated from an airport situated in the territory of a Member State.
21 In that regard, first, the referring court indicates that, although the judgment of 31 May 2018, Wegener (C‑537/17, EU:C:2018:361), which concerned a delay occurring in the first leg of a connecting flight operated by a non-Community air carrier departing from an airport located in the territory of a Member State, militates in favour of the applicability of Regulation No 261/2004, the lessons from that judgment cannot simply be transposed to the case before it, since, in the present case, it is the second leg of the flight concerned, departing from an airport located in the territory of a third country, which is the cause of the delay suffered by the applicants in the main proceedings.
22 Second, the referring court observes that, in the judgment of 11 July 2019, České aerolinie (C‑502/18, EU:C:2019:604), the Court held that Regulation No 261/2004 applied also to the second leg of a connecting flight when the first leg of that flight had been operated from an airport located in the territory of a Member State. The case giving rise to that judgment raised the question whether the Community carrier that had operated the first leg of that flight could be required to compensate a passenger who had suffered a significant delay caused in the second leg of the same flight, physically operated by a third-country air carrier. However, according to that court, the facts of that case differ from those of the dispute before it in so far as that dispute does not concern any Community carrier, the Community carrier which issued the tickets, Lufthansa, not even being a party to that dispute. Therefore, the solution adopted by the Court in that judgment cannot simply be transposed to the said dispute.
23 In the second place, as regards the question of the validity of Regulation No 261/2004, the referring court observes that United Airlines argues that, if that regulation were to apply in the event of a long delay in the second leg of a connecting flight, carried out entirely within the territory of a third country, it would have an extraterritorial effect contrary to international law. More particularly, according to United Airlines, the principle of sovereignty precludes that regulation from applying to a situation occurring in the territory of a third country, such as that at issue in the main proceedings, in which the delay occurred in the territory of the United States and its effects were produced exclusively within that territory. If that argument of United Airlines is correct, the referring court then questions the validity of the same regulation in the light of international law.
24 In those circumstances, the Nederlandstalige ondernemingsrechtbank Brussel (Brussels Companies Court (Dutch-speaking)) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Should Article 3(1)(a) and Article 7 of Regulation [No 261/2004], as interpreted by the Court of Justice, be interpreted as meaning that passengers are entitled to financial compensation from a non-Community air carrier when they arrive at their final destination with a delay of more than three hours as a result of a delay of the last flight, the place of departure and the place of arrival of which are both situated in the territory of a third country, without a stopover in the territory of a Member State, in a series of connecting flights commencing at an airport situated in the territory of a Member State, all of which have been physically operated by that non-Community air carrier and all of which have been reserved in a single booking by the passengers with a Community air carrier which has not physically operated any of those flights?
(2) If the first question is answered in the affirmative, does Regulation [No 261/2004], as interpreted in the first question, infringe international law and, in particular, the principle of the exclusive and complete sovereignty of a State over its territory and airspace, in making EU law applicable to a situation taking place within the territory of a third country?’
Discussion
With respect to the first question:
27 It thus follows from the clear wording of that provision that the situation of passengers on a connecting flight who have departed from an airport located in the territory of a Member State falls within the scope of Regulation No 261/2004.
28 That conclusion is not called into question either by the fact that that flight made a stopover in the territory of a third country or by the fact that the air carrier which operated that flight is not a ‘Community carrier’ within the meaning of Article 2(c) of that regulation.
29 The Court has consistently held that a flight with one or more connections which was the subject of a single reservation constitutes a whole for the purposes of the right of passengers to compensation under Regulation No 261/2004, implying that the applicability of that regulation is to be assessed with regard to the place of the flight’s initial departure and the place of the final destination of that flight (judgment of 24 February 2022, Airhelp (Delay of re-routing flight), C‑451/20, EU:C:2022:123, paragraph 26 and the case-law cited).
30 It follows that, since connecting flights that have been subject to a single booking must be regarded as constituting a whole for the purposes of passengers’ right to compensation provided for by Regulation No 261/2004 and since the applicability of that regulation to the passengers of those flights must be assessed in the light of the initial place of departure and the final destination of those flights, the place where a delay occurs, as the Advocate General stated in point 40 of his Opinion, has no bearing on that applicability.
31 Moreover, as is apparent from Article 3(1)(b) of Regulation No 261/2004, the operation of a flight by a Community carrier is a condition for the application of that regulation only as far as concerns passengers taking flights from an airport located in the territory of a third country to an airport located in the territory of a Member State. Conversely, in accordance with Article 3(1)(a) of the said regulation, that condition is not required as regards passengers taking flights from an airport located in the territory of a Member State.
32 Last, the objective of consumer protection pursued by Regulation No 261/2004 confirms the conclusion set out in paragraph 27 above. As the Advocate General emphasised in point 41 of his Opinion, making a distinction according to whether a delay is caused in the first or the second leg of a connecting flight that has been the subject of a single reservation would amount to an unjustified distinction, such that United Airlines would be obliged to pay compensation in the event of delay occurring during the first leg of that flight, but would not be obliged to do so in the event of delay occurring during the second leg of the said flight, even though such a connecting flight must be regarded as a whole for the purposes of entitlement to compensation and passengers suffer, in both cases, the same delay at the final destination as well as, therefore, the same inconvenience.
33 In the light of the foregoing, a connecting flight from the European Union, such as that at issue in the main proceedings, must be considered to fall within the scope of Regulation No 261/2004, by virtue of Article 3(1)(a) thereof.
With respect to the second question:
49 In the present case, the principle that each State has complete and exclusive sovereignty over its airspace is relied upon, in essence, in order for the Court to assess whether the European Union had competence, in the light of that principle, to adopt Regulation No 261/2004 in so far as that regulation applies to passengers on a connecting flight departing from an airport located in the territory of a Member State to an airport located in the territory of a third country, the significant delay of which is caused in a leg of that flight operated in the territory of that third country.
50 Therefore, even though the principle at issue appears only to have the effect of creating obligations between States, it is nevertheless possible, in circumstances such as those of the case which has been brought before the referring court, in which Regulation No 261/2004 is liable to create obligations under EU law as regards the defendant in the main proceedings, that the latter may rely upon that principle and that the Court may thus examine the validity of that regulation in the light of such a principle.
51 However, since a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying such a principle (judgment of 21 December 2011, Air Transport Association of America and Others, C‑366/10, EU:C:2011:864, paragraph 110 and the case-law cited).
52 First of all, as has been recalled in paragraphs 26 and 27 above, by virtue of Article 3(1)(a) of Regulation No 261/2004, connecting flights fall within the scope of that regulation on the ground that the passengers have started their journey from an airport located in a Member State. In so doing, that regulation establishes, for the purposes of its applicability, a close connection with the territory of the European Union.
53 Thus, it must be noted that the applicability criterion of Regulation No 261/2004 provided for in Article 3(1)(a) of that regulation does not undermine the conditions for the application of the principle of complete and exclusive sovereignty of a State over its airspace, since it covers passengers departing from an airport located in the territory of a Member State which may therefore fall, in view of such a connection, within the competence of the European Union.
54 Next, it should be pointed out, as the Council of the European Union has done in its observations, that that regulation applies to a long delay caused in a leg of a flight operated in a third country only in limited and clearly defined circumstances in which the flight concerned, taken as a whole, is operated from an airport located in the territory of a Member State. Such a flight and its passengers thus retain a close connection with the territory of the European Union, including for the leg of the flight operated outside the European Union.
55 In that regard, it should be observed, as the Advocate General did in point 64 of his Opinion, that Regulation No 261/2004 is not intended to apply, by virtue of Article 3(1)(a) of that regulation, to flights which are wholly operated in a third country or between two third countries, without any connection with the territory of the European Union.
56 Accordingly, in adopting Regulation No 261/2004, the EU institutions cannot be considered to have committed a manifest error of assessment as regards the conditions for the application of the principle of customary international law according to which each State has complete and exclusive sovereignty over its airspace.
Useful for
Irrelevant under EU261 that delay caused in third or non-EU country
