Opinion of Advocate General Pikamäe delivered on 3 December 2020.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2020:991
• Date: 03 December 2020
• Celex Number: 62019CC0826
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 3 December 2020 (1)

Case C‑826/19

WZ

v

Austrian Airlines AG

(Request for a preliminary ruling from the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria))

(Reference for a preliminary ruling – Air transport – Compensation of air passengers in the event of cancellation or delay of flights – Flight diverted to an airport which is not that for which the booking was made – Regulation (EC) No 261/2004 – Article 2(l) – Concept of ‘cancellation’ – Article 8(3) – Bearing the cost of transfer – Initiative – Breach of the obligations laid down in Articles 8 and 9 of the Regulation – Right to compensation )

1. Where a flight is diverted and lands at an airport which is not that for which the booking was made, but is nearby, is it to be regarded as having been cancelled for the purposes of Regulation (EC) No 261/2004, (2) so as to entitle the passengers to compensation under Article 7(1) of that regulation, or merely as having been delayed, in which case, under the judgment in Sturgeon and Others, (3) the passengers have no such entitlement unless there is a delay of three hours or more?

2. After the plane has landed, is the air carrier required to take the initiative and offer to bear the cost of transferring the passenger either to the airport for which the booking was made, or to another close-by destination agreed with the passenger, in accordance with Article 8(3)?

3. Does a breach of the obligation to provide assistance referred to in that article, and in Article 9(1)(c) of Regulation No 261/2004, give rise to a right to lump-sum compensation under Article 7(1) of that regulation?

4. These are some of the questions raised by the request for a preliminary ruling from the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), and are those which, in accordance with the Court’s request, this Opinion will focus on.

5. In the judgment it will give in due course, the Court will, amongst other things, have the opportunity to rule for the first time on the interpretation of Article 8(3) of Regulation No 261/2004, and to clarify the place of that article in the logic and general scheme of the regulation.

I. Legal background

6. Recitals 1, 2 and 4 of Regulation No 261/2004 state:

‘(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.

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

…

(4) [The European Union] 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.’

7. Article 5 of that regulation, headed ‘Cancellation’, provides:

‘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 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:

…

(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.

…’

8. Article 6 of the regulation, headed ‘Delay’, provides:

‘1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:

(a) for two hours or more in the case of flights of 1 500 kilometres or less; or

(b) for three hours or more in the case of all intra-Community flights of more than 1 500 kilometres and of all other flights between 1 500 and 3 500 kilometres; or

(c) for four hours or more in the case of all flights not falling under (a) or (b),

passengers shall be offered by the operating air carrier:

(i) the assistance specified in Article 9(1)(a) and 9(2); and

(ii) when the reasonably expected time of departure is at least the day after the time of departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and

(iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a).

2. In any event, the assistance shall be offered within the time‑limits set out above with respect to each distance bracket.’

9. Article 7 of the regulation, headed ‘Right to compensation’, provides:

‘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;

(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;

(c) EUR 600 for all flights not falling under (a) or (b).

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.

…’

10. Article 8 of the regulation, headed ‘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.

…

3. When, in the case where a town, city or region is served by several airports, an operating air carrier offers a passenger a flight to an airport alternative to that for which the booking was made, the operating air carrier shall bear the cost of transferring the passenger from that alternative airport either to that for which the booking was made, or to another close-by destination agreed with the passenger.’

11. Article 9 of the regulation, headed ‘Right to care’, is worded as follows:

‘1. Where reference is made to this Article, passengers shall be offered free of charge:

(a) meals and refreshments in a reasonable relation to the waiting time;

(b) hotel accommodation in cases

– where a stay of one or more nights becomes necessary, or

– where a stay additional to that intended by the passenger becomes necessary;

(c) transport between the airport and place of accommodation (hotel or other).

…’

II. Facts, procedure and the questions referred

12. WZ made a single booking with Austrian Airlines for a trip consisting of two flights on 21 May 2018, the first from Klagenfurt (Austria) to Vienna (Austria), respectively scheduled to depart at 18.35 and arrive at 19.20, and the second between Vienna and Berlin Tegel (Germany), respectively scheduled to depart at 21.00 and arrive at 22.20.

13. The weather conditions prevailing at aircraft turnaround three flights back in the rotation sequence had led to a delay which affected subsequent flights with the same aircraft on the Vienna–Berlin route, and the flight to Berlin Tegel that WZ had booked was delayed beyond the latest time permitted under the night flying restrictions in force at that airport.

14. Austrian Airlines therefore diverted the flight in question to Berlin Schönefeld airport, which is outside the city of Berlin, in the Land of Brandenburg. The diverted flight took off from Vienna at 22.07 and landed in Berlin Schönefeld at 23.18.

15. According to the referring court, the diversion of the flight caused WZ to be not only delayed (the flight landing at 23.18 instead of the scheduled arrival time of 22.20), but also inconvenienced, as the airport of arrival was further from his home (24 km instead of 8 km), which meant that the journey home took longer (41 minutes from Berlin Schönefeld instead of 15 minutes from Berlin Tegel). Austrian Airlines did not offer WZ alternative transport between Berlin Schönefeld and Berlin Tegel.

16. WZ claimed EUR 250 in compensation pursuant to Article 5 of Regulation No 261/2004, read in conjunction with Article 7 of that regulation. That claim was based on the delay on arrival of the flight as well as on the fact that Austrian Airlines had failed to offer him onward transport from Berlin Schönefeld to Berlin Tegel.

17. Austrian Airlines disputed the claim and argued, first, that the applicant had been delayed by only 58 minutes in reaching his final destination of Berlin. It argued, secondly, that WZ had been able to return home without difficulty using onward transportation. Thirdly, it contended that there had been ‘extraordinary circumstances’, within the meaning of Article 5(3) of Regulation No 261/2004, on the basis that significant meteorological difficulties had been encountered three flights back in the rotation sequence, leading Eurocontrol to assign the rotation in question, which was performed by the same aircraft, a later time-slot than had been anticipated.

18. The Bezirksgericht Schwechat (District Court, Schwechat, Austria) dismissed WZ’s claims, holding that the...