Air Nostrum (Air transport - Compensation for air passengers in the event of denied boarding - Judgment) [2020] EUECJ C-191/19 (30 April 2020)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Air Nostrum (Air transport - Compensation for air passengers in the event of denied boarding - Judgment) [2020] EUECJ C-191/19 (30 April 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/C19119.html Cite as: [2020] WLR(D) 261, ECLI:EU:C:2020:339, [2020] 2 Lloyd's Rep 48, [2020] 3 CMLR 36, [2020] Bus LR 975, [2020] EUECJ C-191/19, EU:C:2020:339

(Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Compensation for air passengers in the event of denied boarding — Denied boarding — Cancellation — Connecting flights — Change of the reservation in respect of one of the flights comprising the journey by air against the passenger’s will — Arrival of the passenger without delay at his or her final destination)

REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany), made by decision of 20 February 2019, received at the Court on 27 February 2019, in the proceedings

composed of L.S. Rossi, President of the Chamber, J. Malenovský (Rapporteur) and F. Biltgen, Judges,

– the German Government, by J. Möller, M. Hellmann and A. Berg, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Article 4(3), Article 5(1)(c)(iii) and Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

2 The request has been made in the context of proceedings between OI and Air Nostrum Líneas Aéreas del Mediterráneo SA (‘Air Nostrum’) concerning a request for compensation under Regulation No 261/2004 made by OI as a result of changes made to her reservation against her will.

‘(1) Action by the Community in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.

(2) Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers.

(3) While Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for a denied boarding compensation system in scheduled air transport [(OJ 1991 L 36, p. 5)] created basic protection for passengers, the number of passengers denied boarding against their will remains too high, as does that affected by cancellations without prior warning and that affected by long delays.

(4) The Community should therefore raise the standards of protection set by that regulation both to strengthen the rights of passengers and to ensure that air carriers operate under harmonised conditions in a liberalised market.

(9) The number of passengers denied boarding against their will should be reduced by requiring air carriers to call for volunteers to surrender their reservations, in exchange for benefits, instead of denying passengers boarding, and by fully compensating those finally denied boarding.

(10) Passengers denied boarding against their will should be able either to cancel their flights, with reimbursement of their tickets, or to continue them under satisfactory conditions, and should be adequately cared for while awaiting a later flight.’

‘This Regulation establishes, under the conditions specified herein, minimum rights for passengers when:

(h) “final destination” means the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight; alternative connecting flights available shall not be taken into account if the original planned arrival time is respected;

(j) “denied boarding” means a refusal to carry passengers on a flight, although they have presented themselves for boarding under the conditions laid down in Article 3(2), except where there are reasonable grounds to deny them boarding, such as reasons of health, safety or security, or inadequate travel documentation;

(l) “cancellation” means the non-operation of a flight which was previously planned and on which at least one place was reserved.’

(a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;

(b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier.

(a) have a confirmed reservation on the flight concerned and, except in the case of cancellation referred to in Article 5, present themselves for check-in,

– as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent,

(b) have been transferred by an air carrier or tour operator from the flight for which they held a reservation to another flight, irrespective of the reason.’

‘If boarding is denied to passengers against their will, the operating air carrier shall immediately compensate them in accordance with Article 7 and assist them in accordance with Articles 8 and 9.’

(i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or

(ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or

(iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.’

‘1. Where reference is made to this Article, passengers shall receive compensation amounting to:

(b) EUR 400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres;

In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger’s arrival after the scheduled time.

4. The distances given in paragraphs 1 and 2 shall be measured by the great circle route method.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

10 The applicant in the main proceedings made a reservation through the tour operator L’TUR Tourismus AG for connecting flights from Jerez de la Frontera (Spain) to Frankfurt am Main (Germany) via Madrid (Spain). Those connecting flights, which gave rise to a single reservation, consisted of, first, Air Nostrum flight IB 8505 from Jerez de la Frontera to Madrid, scheduled to depart on 3 October 2015 at 13.35 and to land the same day at 14.45, and, second, flight number AB 5325 from Madrid to Frankfurt am Main, scheduled to depart on 3 October 2015 at 20.00 and to land the same day at 22.40.

11 The reservation of the applicant in the main proceedings was changed against her will, with the result that, in place of her seat on the first flight, flight IB 8505, she was given a seat on flight IB 8507, which took off from Jerez de la Frontera on 3 October 2015 at approximately 17.55 and landed in Madrid the same day at approximately 19.05.

12 The applicant in the main proceedings departed from Madrid at 20.00 on the connecting flight originally planned and arrived in Frankfurt am Main 10 minutes before the scheduled arrival time.

13 The applicant in the main proceedings brought an action before the Amtsgericht Frankfurt am Main (Local Court, Frankfurt am Main, Germany) seeking compensation from Air Nostrum under Regulation No 261/2004 for the change, which had been made unilaterally. That court dismissed her action on the ground that she had reached her final destination within the time limits laid down by Article 5(1)(c)(iii) of Regulation No 261/2004.

14 The applicant in the main proceedings appealed against that decision to the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany), taking the view that she was entitled to compensation for denied boarding under Regulation No 261/2004 and that such a right could not be subject to any of the restrictions provided for, in the event of cancellation of a flight, in Article 5(1)(c)(iii) of that regulation.

15 The referring court states that the resolution of the dispute pending before it depends on the Court’s answers to the questions referred. It takes the view, in the first place, that the applicant in the main proceedings may claim compensation under Regulation No 261/2004 only if the change to her reservation resulted in denied boarding. The present case does not concern the cancellation of a flight since the flight on which the applicant in the main proceedings had originally been due to travel went ahead. The referring court takes the view that the amendment of a passenger’s booking against that passenger’s will, leading to that passenger being moved onto a later flight, is covered by Article 4(3) of Regulation No 261/2004 if the original flight went ahead. In its view, a different interpretation of that provision could lead air carriers to circumvent the legal effects of that regulation.

16 In the second place, the referring court is uncertain whether Article 5(1)(c)(iii) of Regulation No 261/2004 can apply by analogy in the event of denied boarding as referred to in Article 4(3) of that regulation.

17 In those circumstances, the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the change in reservation at check-in of a passenger, who has a confirmed reservation on a specific flight, to a later flight against that passenger’s will constitute denied boarding within the meaning of Article 4(3) of Regulation No 261/2004, if the flight on which the passenger had a confirmed reservation then goes ahead?

(2) If Question 1 is answered in the affirmative: Does Article 5(1)(c)(iii) of Regulation No 261/2004 apply by analogy in the event of denied boarding within the meaning of Article 4(3) of that regulation?

18 By its first question, the referring court asks whether Article 4(3) of Regulation No 261/2004 must be interpreted as meaning that, when a passenger’s confirmed reservation for a specific flight is changed against that passenger’s will when he or she arrives at the airport for check-in, to the effect that he or she is moved onto a later flight, and the flight on which he or she had a confirmed reservation goes ahead, this constitutes denied boarding within the meaning of that provision.

19 It should be observed as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. With this in mind, the Court of Justice may have to reformulate the questions referred to it (see, to that effect, judgment of 17 September 2015, van der Lans, C‑257/14, EU:C:2015:618, paragraph 32 and the case-law cited).

20 It is necessary to do so in the context of the present reference for a preliminary ruling.

21 It is not apparent from the order for reference that the applicant in the main proceedings did in fact present herself for check-in within the time limits laid down in Article 3(2) of Regulation No 261/2004.

22 The Court is therefore unable to rule on whether a situation such as that which gave rise to the present dispute is capable of coming within the scope of Article 4(3) of Regulation No 261/2004.

23 By contrast, it is common ground that the applicant in the main proceedings did travel by connecting flights since, despite the change affecting the first of the booked flights in her journey, she reached her final destination by means of the second of the flights in that journey which she had reserved.

24 Moreover, it is common ground that the question referred has arisen in proceedings for the award of compensation by the air carrier under Article 7 of Regulation No 261/2004.

25 Therefore, in view of those factors and in order to provide an answer that will assist the referring court in resolving the dispute before it, it is necessary to reformulate the first question and to consider that that question is asking, in essence, whether Regulation No 261/2004, and in particular Article 7 thereof, must be interpreted as meaning that a passenger who had a single reservation for connecting flights is entitled to compensation in the case where that reservation is amended against the passenger’s will, with the result that, first, the passenger did not board the first of his or her reserved flights even though that flight went ahead and, second, the passenger was given a seat on a later flight which allowed him or her to board the second of his or her reserved flights and thus to reach his or her final destination at the arrival time originally scheduled.

26 In this regard, it must be noted that a flight with one or more connections, booked as a single unit, constitutes a whole for the purposes of the right to compensation for passengers provided for by Regulation No 261/2004 (see, to that effect, judgment of 31 May 2018, Wegener, C‑537/17, EU:C:2018:361, paragraphs 18 and 19).

27 The Court has thus drawn legal consequences from the position of the passenger in question at the end of his or her air journey, namely on arrival at his or her final destination, defined in Article 2(h) of Regulation No 261/2004 (see, to that effect, judgments of 31 May 2018, Wegener, C‑537/17, EU:C:2018:361, paragraph 17, and of 26 February 2013, Folkerts, C‑11/11, EU:C:2013:106, paragraphs 34 and 35).

28 In the case of connecting flights, that interpretation follows from the actual wording of that Article 2(h), according to which ‘alternative connecting flights available shall not be taken into account if the original planned arrival time is respected’.

29 As regards, more specifically, the right to compensation in the case of connecting flights, the Court has ruled that Article 7 of Regulation No 261/2004 must be interpreted as meaning that compensation is payable to a passenger who arrived at his or her final destination at least three hours later than the scheduled arrival time (see, to that effect, judgment of 26 February 2013, Folkerts, C‑11/11, EU:C:2013:106, paragraph 47).

30 In the present case, it is common ground that the applicant in the main proceedings, at the end of her air journey, arrived at her final destination no later than the arrival time originally scheduled.

31 Consequently, she cannot benefit from the right to compensation on the basis of Article 7 of Regulation No 261/2004.

32 It is true, first, as is apparent from recitals 1 and 2 thereof, that Regulation No 261/2004 seeks to remedy serious trouble and inconvenience befalling passengers during air travel and, second, that a change to a flight reservation results in inconvenience for the passenger concerned. However, such inconvenience cannot be regarded as ‘serious’, within the meaning of that regulation, in the case where the passenger arrives at his or her final destination at the arrival time originally scheduled.

33 In those circumstances, it would be contrary to the purpose of Regulation No 261/2004 to provide compensation for a passenger such as the applicant in the main proceedings under Article 7 of that regulation.

34 In the light of all the foregoing, the answer to the first question is that Regulation No 261/2004, and in particular Article 7 thereof, must be interpreted as meaning that compensation is not payable to a passenger who had a single reservation for connecting flights in the case where that reservation was amended against the passenger’s will, with the result that, first, the passenger did not board the first of his or her reserved flights even though that flight went ahead and, second, the passenger was given a seat on a later flight which allowed him or her to board the second of his or her reserved flights and thus to reach his or her final destination at the arrival time originally scheduled.

35 In the light of the answer given to the first question, there is no need to answer the second question.

36 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, and in particular Article 7 thereof, must be interpreted as meaning that compensation is not payable to a passenger who had a single reservation for connecting flights in the case where that reservation was amended against the passenger’s will, with the result that, first, the passenger did not board the first of his or her reserved flights even though that flight went ahead and, second, the passenger was given a seat on a later flight which allowed him or her to board the second of his or her reserved flights and thus to reach his or her final destination at the arrival time originally scheduled.

Court of Justice of the European Communities (including Court of First Instance Decisions)