Austrian Airlines AG v TW.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:454
• Date: 08 June 2023
• Docket Number: C-49/22
• Celex Number: 62022CJ0049
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

8 June 2023 (*)

(Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Article 5(1)(a) – Cancellation of a flight – Article 8(1) – Obligation to provide assistance – Concept of ‘re-routing’ – Compensation for air passengers in the event of cancellation of a flight – COVID‑19 pandemic – Repatriation flight organised by a Member State in the context of consular assistance – Flight operated by the same operating air carrier and at the same time as the cancelled flight – Costs to be borne by the passenger in excess of the net costs of that flight)

In Case C‑49/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), made by decision of 4 January 2022, received at the Court on 24 January 2022, in the proceedings

Austrian Airlines AG

v

TW,

THE COURT (Third Chamber),

composed of K. Jürimäe (Rapporteur), President of the Chamber, M. Safjan, N. Piçarra, N. Jääskinen and M. Gavalec, Judges,

Advocate General: N. Emiliou,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Austrian Airlines AG, by M. Brenner and M. Klemm, Rechtsanwälte,

– TW, by F. Puschkarski, A. Skribe and P. Zwifelhofer, Rechtsanwälte,

– the Austrian Government, by G. Kunnert, A. Posch and J. Schmoll, acting as Agents,

– the German Government, by J. Möller, P. Busche and M. Hellmann, acting as Agents,

– the European Commission, by G. Braun, G. Wilms and N. Yerrell, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 2 March 2023,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 5(1)(a) and Article 8(1)(b) 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 proceedings between Austrian Airlines AG and TW concerning Austrian Airlines’s refusal to reimburse to TW and his wife the sum that they had to pay for a repatriation flight organised by the Republic of Austria in the context of its consular tasks, following the cancellation of their flight by Austrian Airlines due to the COVID‑19 pandemic.

Legal context

European Union law

Regulation No 261/2004

3 Recitals 1 and 4 of Regulation No 261/2004 state:

‘(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.

…

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

4 Article 2 of that regulation is entitled ‘Definitions’. Point (b) of that article defines ‘operating air carrier’ as ‘an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger’.

5 Article 3 of that regulation, entitled ‘Scope’, provides, in paragraph 3:

‘This Regulation shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. However, it shall apply to passengers having tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator.’

6 Article 5 of that regulation, entitled ‘Cancellation’, is worded as follows:

‘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

…

(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless [they are informed of the cancellation of the flight]:

…

2. When passengers are informed of the cancellation, an explanation shall be given concerning possible alternative transport.

3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

…’

7 Article 7 of Regulation No 261/2004, entitled ‘Right to compensation’, provides for standardised compensation for passengers, the amount of which varies, inter alia, according to the distance of the flight.

8 Article 8 of that regulation, entitled ‘Right to reimbursement or re-routing’, provides:

‘1. Where reference is made to this Article, passengers shall be offered the choice between:

(a) – reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan, together with, when relevant,

– a return flight to the first point of departure, at the earliest opportunity;

(b) re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; or

(c) re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.

2. Paragraph 1(a) shall also apply to passengers whose flights form part of a package, except for the right to reimbursement where such right arises under [Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (OJ 2015 L 326, p. 1)].

…’

9 Article 12 of Regulation No 261/2004 is entitled ‘Further compensation’. It provides, in paragraph 1:

‘This Regulation shall apply without prejudice to a passenger’s rights to further compensation. The compensation granted under this Regulation may be deducted from such compensation.’

Directive (EU) 2015/637

10 Under Article 9 of Council Directive (EU) 2015/637 of 20 April 2015 on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries and repealing Decision 95/553/EC (OJ 2015 L 106, p. 1):

‘The consular protection referred to in Article 2 may include assistance, inter alia, in the following situations:

…

(e) relief and repatriation in case of an emergency;

…’

Austrian law

11 Paragraph 3(2)(5) of the Bundesgesetz über die Wahrnehmung konsularischer Aufgaben (Konsulargesetz) (Federal Law on the exercise of consular tasks (Consular Law)) (BGBl. I, 40/2019) (‘the Consular Law’) provides:

‘Consular protection is that part of consular tasks which comprises the provision of assistance in legal protection and emergency situations. This includes, among other things, the provision of assistance in cases of … relief and repatriation in case of an emergency.’

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

12 As part of a package holiday, TW and his wife each had a confirmed reservation for flight OS 17, on 7 March 2020, from the airport in Vienna (Austria) to Mauritius, as well as for flight OS 18, on 20 March 2020, from the airport on Mauritius to Vienna. Both flights were to be operated by Austrian Airlines.

13 Flight OS 17 went ahead as scheduled. By contrast, on 18 March 2020, Austrian Airlines cancelled flight OS 18 as a result of the measures taken by the Austrian Government due to the COVID‑19 pandemic.

14 According to the information provided by the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), which is the referring court, although Austrian Airlines had the contact details of TW and of his wife, it did not inform them of that cancellation or of their rights under Article 8(1) of Regulation No 261/2004. It was not until 19 March 2020 that they were notified, by their travel organiser, of the cancellation of their return flight and the organisation of a repatriation flight by the Austrian Ministry of Foreign Affairs, scheduled for 20 March 2020, a date by which no more regular flights...