Airhelp Limited v Laudamotion GmbH.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:1039
• Date: 21 December 2021
• Docket Number: C-263/20
• Celex Number: 62020CJ0263
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

21 December 2021 (*)

(Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Common rules on compensation and assistance to passengers in the event of cancellation or long delay of flights – Article 2(l) – Article 5(1)(c) – Flight booked through an online platform – Flight departure time brought forward by the operating air carrier – Classification – Receipt of notification of the flight being brought forward sent to an electronic address not belonging to the passengers concerned – Directive 2000/31/EC – Electronic commerce – Article 11 – Presumption of receipt – Scope of the operating air carrier’s obligation to provide information)

In Case C‑263/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), made by decision of 26 May 2020, received at the Court on 15 June 2020, in the proceedings

Airhelp Limited

v

Laudamotion GmbH,

THE COURT (First Chamber),

composed of L. Bay Larsen, Vice-President of the Court, acting as President of the First Chamber, J-C. Bonichot and M. Safjan (Rapporteur), Judges,

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Airhelp Limited, by D. Stanonik and E. Stanonik-Palkovits, Rechtsanwälte,

– Laudamotion GmbH, by M. Klemm, Rechtsanwalt,

– the European Commission, by G. Braun and K. Simonsson, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 23 September 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 5(1)(c) 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), and of Article 11 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

2 The request has been made in proceedings between Airhelp Limited and Laudamotion GmbH concerning the latter’s refusal to compensate air passengers, who had assigned their rights to Airhelp, for having brought forward their flight.

Legal context

Regulation No 261/2004

3 Under recitals 1, 7 and 12 of Regulation No 261/2004:

‘(1) Action by the [European Union] 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.

…

(7) In order to ensure the effective application of this Regulation, the obligations that it creates should rest with the operating air carrier who performs or intends to perform a flight, whether with owned aircraft, under dry or wet lease, or on any other basis.

…

(12) The trouble and inconvenience to passengers caused by cancellation of flights should also be reduced. This should be achieved by inducing carriers to inform passengers of cancellations before the scheduled time of departure and in addition to offer them reasonable re-routing, so that the passengers can make other arrangements. Air carriers should compensate passengers if they fail to do this, except when the cancellation occurs in extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.’

4 Article 2 of that regulation, entitled ‘Definitions’, provides:

‘For the purposes of this Regulation:

…

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

5 Article 5 of the regulation, entitled ‘Cancellation’, provides in its paragraphs 1 and 4:

‘1. In case of cancellation of a flight, the passengers concerned shall:

(a) be offered assistance by the operating air carrier in accordance with Article 8; and

(b) be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in [the] event of re-routing when the reasonably expected time of departure of the new flight is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in Article 9(1)(b) and 9(1)(c); and

(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless:

(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.

…

4. The burden of proof concerning the questions as to whether and when the passenger has been informed of the cancellation of the flight shall rest with the operating air carrier.’

6 Article 7 of that regulation, entitled ‘Right to compensation’, provides in its paragraph 1:

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

(a) EUR 250 for all flights of 1 500 kilometres or less;

…’

7 Article 13 of Regulation No 261/2004, entitled ‘Right of redress’, states:

‘In cases where an operating air carrier pays compensation or meets the other obligations incumbent on it under this Regulation, no provision of this Regulation may be interpreted as restricting its right to seek compensation from any person, including third parties, in accordance with the law applicable. In particular, this Regulation shall in no way restrict the operating air carrier’s right to seek reimbursement from a tour operator or another person with whom the operating air carrier has a contract. Similarly, no provision of this Regulation may be interpreted as restricting the right of a tour operator or a third party, other than a passenger, with whom an operating air carrier has a contract, to seek reimbursement or compensation from the operating air carrier in accordance with applicable relevant laws.’

Directive 2000/31

8 Section 3, entitled ‘Contracts concluded by electronic means’, of Chapter II of Directive 2000/31 comprises Articles 9 to 11 of that directive. Article 11 of that directive, entitled ‘Placing of the order’, provides in its paragraph 1:

‘Member States shall ensure, except when otherwise agreed by parties who are not consumers, that in cases where the recipient of the service places his order through technological means, the following principles apply:

– the service provider has to acknowledge the receipt of the recipient’s order without undue delay and by electronic means,

– the order and the acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them.’

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

9 Two air passengers reserved, through an online booking platform, a flight from Palma de Mallorca (Spain) to Vienna (Austria), operated by the air carrier Laudamotion. When making the reservation on that booking platform, those passengers entered their private email addresses and telephone numbers. That platform then reserved the flight with Laudamotion in the names of the passengers, generating an electronic address specific to that reservation. That address was the only contact address available to Laudamotion.

10 The reserved flight, which was initially scheduled to depart on 14 June 2018 at 14.40, was brought forward by the operating air carrier to 8.25 on the same day, corresponding to the flight being brought forward by more than six hours.

11 Airhelp, to which the two passengers assigned any right to compensation arising out of Regulation No 261/2004, brought an action before the Bezirksgericht Schwechat (District Court, Schwechat, Austria). It claimed that the operating air carrier was liable to pay the two passengers a total sum of EUR 500 under Article 7(1)(a) of that regulation since the flight in question had been brought forward by more than six hours and the passengers had not been notified of that fact until four days before the scheduled departure, on 10 June 2018...