# 62018CO0292

ORDER OF THE COURT (Eighth Chamber)

6 December 2018 (
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(Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Transport — Regulation (EC) No 261/2004 — Right to compensation in the event of flight cancellation — Article 3(5) — Scope — Article 2(a) — Concept of air carrier — Undertaking not yet possessing an operating licence at the date scheduled for the performance of a flight — Question admitting of no reasonable doubt)

In Case C‐292/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Amtsgericht Kassel (Local Court, Kassel, Germany), made by decision of 23 March 2018, received at the Court on 27 April 2018, in the proceedings

Petra Breyer,

Petra Breyer,

Heiko Breyer

Heiko Breyer

v

Sundair GmbH,

Sundair GmbH,

THE COURT (Eighth Chamber),

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

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

Order

| 1 | This request for a preliminary ruling concerns the interpretation of Article 2(a), Article 5(1)(c) and Article 7(1) 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). |
| --- | --- |

1

This request for a preliminary ruling concerns the interpretation of Article 2(a), Article 5(1)(c) and Article 7(1) 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 Ms Petra Breyer and Mr Heiko Breyer, and Sundair GmbH, concerning a potential obligation incumbent on Sundair GmbH to pay compensation to Ms and Mr Breyer for the cancellation of their flight. |
| --- | --- |

2

The request has been made in proceedings between Ms Petra Breyer and Mr Heiko Breyer, and Sundair GmbH, concerning a potential obligation incumbent on Sundair GmbH to pay compensation to Ms and Mr Breyer for the cancellation of their flight.

Legal context

Legal context

Regulation No 261/2004

Regulation No 261/2004

| 3 | Article 2 of Regulation No 261/2004, entitled ‘Definitions’, provides:
  ‘For the purposes of this Regulation, the following definitions shall apply:





  (a) | “air carrier” means an air transport undertaking with a valid operating licence; |
| --- | --- | --- |

3

Article 2 of Regulation No 261/2004, entitled ‘Definitions’, provides:

‘For the purposes of this Regulation, the following definitions shall apply:

(a)

“air carrier” means an air transport undertaking with a valid operating licence;

| (b) | “operating air carrier” means 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; |
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(b)

“operating air carrier” means 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;

| (c) | “Community carrier” means an air carrier with a valid operating licence granted by a Member State in accordance with Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers [OJ 1992 L 240, p. 1]; |
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(c)

“Community carrier” means an air carrier with a valid operating licence granted by a Member State in accordance with Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers [OJ 1992 L 240, p. 1];

...’

| 4 | According to Article 3(5) and (6) of Regulation No 261/2004:
  ‘5.   This Regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2. Where an operating air carrier which has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger.
  6.   This Regulation shall not affect the rights of passengers under Directive 90/314/EEC [of the Council, of 13 June 1990, on package travel, package holidays and package tours (OJ 1990 L 158, p. 59)]. ...’ |
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4

According to Article 3(5) and (6) of Regulation No 261/2004:

‘5.   This Regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2. Where an operating air carrier which has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger.

6.   This Regulation shall not affect the rights of passengers under Directive 90/314/EEC [of the Council, of 13 June 1990, on package travel, package holidays and package tours (OJ 1990 L 158, p. 59)]. ...’

| 5 | Article 5(1) of that regulation provides:
  ‘In case of cancellation of a flight, the passengers concerned shall:
  ...





  (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.’ |
| --- | --- | --- | --- |

5

Article 5(1) of that regulation provides:

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

...

(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.’

| 6 | In accordance with Article 7(1) of that regulation:
  ‘Where reference is made to this Article, passengers shall receive compensation amounting to:





  (a) | EUR 250 for all flights of 1500 kilometres or less; |
| --- | --- | --- |

6

In accordance with Article 7(1) of that regulation:

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

(a)

EUR 250 for all flights of 1500 kilometres or less;

...

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.’

Directive 90/314

Directive 90/314

| 7 | Article 5(1) of Directive 90/314 provides:
  ‘Member States shall take the necessary steps to ensure that the organiser and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organiser and/or retailer or by other suppliers of services without prejudice to the right of the organiser and/or retailer to pursue those other suppliers of services.’ |
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7

Article 5(1) of Directive 90/314 provides:

‘Member States shall take the necessary steps to ensure that the organiser and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organiser and/or retailer or by other suppliers of services without prejudice to the right of the organiser and/or retailer to pursue those other suppliers of services.’

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

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

| 8 | In February 2017, Ms and Mr Breyer booked a package holiday with the tour operator TUI Deutschland GmbH. |
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8

In February 2017, Ms and Mr Breyer booked a package holiday with the tour operator TUI Deutschland GmbH.

| 9 | According to the booking confirmation sent to them, the outbound flight was supposed to take off from Kassel-Calden (Germany) on 9 July 2017 at 06:00 and land in Palma de Mallorca (Spain) at 08:30. The return flight was supposed to take off on 16 July 2017 at 10:20. The referring court does not state at what time the return flight was supposed to land. According to the booking confirmation, the two flights were to be operated by Sundair. |
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9

According to the booking confirmation sent to them, the outbound flight was supposed to take off from Kassel-Calden (Germany) on 9 July 2017 at 06:00 and land in Palma de Mallorca (Spain) at 08:30. The return flight was supposed to take off on 16 July 2017 at 10:20. The referring court does not state at what time the return flight was supposed to land. According to the booking confirmation, the two flights were to be operated by Sundair.

| 10 | However, on the dates of the two flights in question, although Sundair had applied for an operating licence from the Luftfahrtbundesamt (Federal Air Transport Authority, Germany), this had not yet been issued. The licence was not granted until 27 September 2017, that is to say, after the date scheduled for the return flight. |
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10

However, on the dates of the two flights in question, although Sundair had applied for an operating licence from the Luftfahrtbundesamt (Federal Air Transport Authority, Germany), this had not yet been issued. The licence was not granted until 27 September 2017, that is to say, after the date scheduled for the return flight.

| 11 | Five days prior to departure, Ms and Mr Breyer were informed that they were to be transferred to another flight, operated by the air transport undertaking Cobrex Trans. That flight reached the final destination 13 hours and 30 minutes later than the scheduled arrival time prior to the change in the reservation. They were also informed that their return flight would be transferred to a flight with the airline Air Europa. That flight took off on 16 July 2017 at 06:40, that is, 3 hours and 40 minutes earlier than the departure time originally scheduled. |
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11

Five days prior to departure, Ms and Mr Breyer were informed that they were to be transferred to another flight, operated by the air transport undertaking Cobrex Trans. That flight reached the final destination 13 hours and 30 minutes later than the scheduled arrival time prior to the change in the reservation. They were also informed that their return flight would be transferred to a flight with the airline Air Europa. That flight took off on 16 July 2017 at 06:40, that is, 3 hours and 40 minutes earlier than the departure time originally scheduled.

| 12 | Accordingly, Ms and Mr Breyer brought proceedings before the Amtsgericht Kassel (Local Court, Kassel) seeking the payment of compensation from Sundair, pursuant to Articles 5 and 7 of Regulation No 261/2004, of EUR 500 each, minus the total sum of EUR 190.40 that had already been paid to them. |
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12

Accordingly, Ms and Mr Breyer brought proceedings before the Amtsgericht Kassel (Local Court, Kassel) seeking the payment of compensation from Sundair, pursuant to Articles 5 and 7 of Regulation No 261/2004, of EUR 500 each, minus the total sum of EUR 190.40 that had already been paid to them.

| 13 | However, although Article 2(a) of Regulation No 261/2004 defines the concept of ‘air carrier’ as ‘an air transport undertaking with a valid operating licence’, the referring court is unsure whether Articles 5 and 7 of that regulation apply to an undertaking that, at the time the flight in question was booked, had applied for an operating licence but did not receive it until after the date scheduled for that flight. The referring court queries whether, in order to implement the objective of that regulation, which is to achieve a high level of protection for passengers, that concept should not be interpreted as applying also to undertakings which have applied for a licence and subsequently offered flights for sale before the licence has been issued to them. |
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13

However, although Article 2(a) of Regulation No 261/2004 defines the concept of ‘air carrier’ as ‘an air transport undertaking with a valid operating licence’, the referring court is unsure whether Articles 5 and 7 of that regulation apply to an undertaking that, at the time the flight in question was booked, had applied for an operating licence but did not receive it until after the date scheduled for that flight. The referring court queries whether, in order to implement the objective of that regulation, which is to achieve a high level of protection for passengers, that concept should not be interpreted as applying also to undertakings which have applied for a licence and subsequently offered flights for sale before the licence has been issued to them.

| 14 | In those circumstances, the Amtsgericht Kassel (Local Court, Kassel) decided to stay the proceedings and to refer the following question to the Court:
  ‘Are Articles 5(1)(c), 7(1) and 2(a) of Regulation No 261/2004 to be interpreted as applying to an air transport undertaking which, at the time of the intended performance of a flight, does not hold an operating licence within the meaning of Article 2(a) of Regulation No 261/2004, has already lodged an application for the operating licence before the intended performance of the flight and to which that licence was issued only later (after the time scheduled for the performance of the flight)?’ |
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14

In those circumstances, the Amtsgericht Kassel (Local Court, Kassel) decided to stay the proceedings and to refer the following question to the Court:

‘Are Articles 5(1)(c), 7(1) and 2(a) of Regulation No 261/2004 to be interpreted as applying to an air transport undertaking which, at the time of the intended performance of a flight, does not hold an operating licence within the meaning of Article 2(a) of Regulation No 261/2004, has already lodged an application for the operating licence before the intended performance of the flight and to which that licence was issued only later (after the time scheduled for the performance of the flight)?’

Consideration of the question referred

Consideration of the question referred

| 15 | In the main proceedings, passengers whose flights were cancelled are seeking compensation, under Article 5(1)(c) of Regulation No 261/2004, of an amount calculated in accordance with Article 7 of the same regulation, from an air transport undertaking which, on the dates scheduled for those flights, had applied for an operating licence but to which the licence had not yet been issued. |
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15

In the main proceedings, passengers whose flights were cancelled are seeking compensation, under Article 5(1)(c) of Regulation No 261/2004, of an amount calculated in accordance with Article 7 of the same regulation, from an air transport undertaking which, on the dates scheduled for those flights, had applied for an operating licence but to which the licence had not yet been issued.

| 16 | In those circumstances, entitlement to compensation depends on the answer to the preliminary question of whether an undertaking such as that in the main proceedings may be regarded as falling within the scope of Regulation No 261/2004, and in particular Article 3(5) thereof, read in conjunction with Article 2(a) thereof. |
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16

In those circumstances, entitlement to compensation depends on the answer to the preliminary question of whether an undertaking such as that in the main proceedings may be regarded as falling within the scope of Regulation No 261/2004, and in particular Article 3(5) thereof, read in conjunction with Article 2(a) thereof.

| 17 | The question referred must therefore be taken to mean that the referring court is, in essence, asking whether Article 3(5) of Regulation No 261/2004, read in conjunction with Article 2(a) thereof, must be interpreted to mean that an undertaking, such as that at issue in the main proceedings, which has applied for an operating licence but to which a licence has not been issued on the dates scheduled for the performance of those flights, is capable of falling within the scope of that regulation, and, should that question be answered in the affirmative, whether the passengers concerned are entitled to compensation on the basis of Article 5(1)(c) and Article 7(1) of the same regulation. |
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17

The question referred must therefore be taken to mean that the referring court is, in essence, asking whether Article 3(5) of Regulation No 261/2004, read in conjunction with Article 2(a) thereof, must be interpreted to mean that an undertaking, such as that at issue in the main proceedings, which has applied for an operating licence but to which a licence has not been issued on the dates scheduled for the performance of those flights, is capable of falling within the scope of that regulation, and, should that question be answered in the affirmative, whether the passengers concerned are entitled to compensation on the basis of Article 5(1)(c) and Article 7(1) of the same regulation.

| 18 | Under Article 99 of the Rules of Procedure, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order where, inter alia, the answer to the question referred for a preliminary ruling admits of no reasonable doubt. |
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18

Under Article 99 of the Rules of Procedure, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order where, inter alia, the answer to the question referred for a preliminary ruling admits of no reasonable doubt.

| 19 | Since that is the case here, it is appropriate to apply that provision. |
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19

Since that is the case here, it is appropriate to apply that provision.

| 20 | First of all, it should be recalled that Article 3 of Regulation No 261/2004, which defines the scope of the regulation, provides in paragraph 5 that the regulation applies to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2 of that article. |
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20

First of all, it should be recalled that Article 3 of Regulation No 261/2004, which defines the scope of the regulation, provides in paragraph 5 that the regulation applies to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2 of that article.

| 21 | In that regard, it must be noted that the concept of ‘air carrier’ is defined in Article 2(a) of Regulation No 261/2004 as an air transport undertaking with a valid operating licence. |
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21

In that regard, it must be noted that the concept of ‘air carrier’ is defined in Article 2(a) of Regulation No 261/2004 as an air transport undertaking with a valid operating licence.

| 22 | Moreover, in a broader context, Article 3(1) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3), which replaced Regulation No 2407/92, to which Article 2(c) of Regulation No 261/2004 refers, provides, inter alia, that no undertaking established in the European Union is permitted to carry by air passengers for remuneration and/or hire unless it has been granted the appropriate operating licence. |
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22

Moreover, in a broader context, Article 3(1) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ 2008 L 293, p. 3), which replaced Regulation No 2407/92, to which Article 2(c) of Regulation No 261/2004 refers, provides, inter alia, that no undertaking established in the European Union is permitted to carry by air passengers for remuneration and/or hire unless it has been granted the appropriate operating licence.

| 23 | It follows, without a doubt, that an undertaking to which an operating licence has not yet been issued is not permitted to carry out any flight. |
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23

It follows, without a doubt, that an undertaking to which an operating licence has not yet been issued is not permitted to carry out any flight.

| 24 | Consequently, an undertaking which, despite the requirements set out in Article 3(5) of Regulation No 261/2004, read in conjunction with Article 2 thereof, and in view of the fact that there is no automatic right to an operating licence, did not have such a licence at the time for the performance of the scheduled flights, cannot be considered as falling within the scope of those provisions or, consequently, of that regulation as a whole. |
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24

Consequently, an undertaking which, despite the requirements set out in Article 3(5) of Regulation No 261/2004, read in conjunction with Article 2 thereof, and in view of the fact that there is no automatic right to an operating licence, did not have such a licence at the time for the performance of the scheduled flights, cannot be considered as falling within the scope of those provisions or, consequently, of that regulation as a whole.

| 25 | The non-performance of flights by that undertaking, in circumstances such as those in the main proceedings, cannot, therefore, result in the effects of a cancellation under Article 5(1)(c) of Regulation No 261/2004, read in conjunction with Article 7(1) thereof. |
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25

The non-performance of flights by that undertaking, in circumstances such as those in the main proceedings, cannot, therefore, result in the effects of a cancellation under Article 5(1)(c) of Regulation No 261/2004, read in conjunction with Article 7(1) thereof.

| 26 | In view of the particular circumstances of the main proceedings, it should be noted that the fact that Article 3(5) of Regulation No 261/2004, read in conjunction with Article 2(a) thereof, prevents the passengers concerned from receiving compensation under that regulation does not prevent them from seeking reparation in other ways, including — as provided for in Article 3(6) of the same regulation — under Directive 90/314. In particular, Article 5(1) of that directive provides that Member States shall take the necessary steps to ensure that the organiser and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organiser and/or retailer or by other suppliers of services without prejudice to the right of the organiser and/or retailer to pursue those other suppliers of services. |
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26

In view of the particular circumstances of the main proceedings, it should be noted that the fact that Article 3(5) of Regulation No 261/2004, read in conjunction with Article 2(a) thereof, prevents the passengers concerned from receiving compensation under that regulation does not prevent them from seeking reparation in other ways, including — as provided for in Article 3(6) of the same regulation — under Directive 90/314. In particular, Article 5(1) of that directive provides that Member States shall take the necessary steps to ensure that the organiser and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organiser and/or retailer or by other suppliers of services without prejudice to the right of the organiser and/or retailer to pursue those other suppliers of services.

| 27 | It should also be noted that, in view of the high level of consumer protection which must be guaranteed in EU policies, the solution adopted in paragraphs 24 and 25 of this order is without prejudice to the rights that consumers, such as the applicants in the main proceedings, may have against businesses under other instruments of EU law, such as Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22). |
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27

It should also be noted that, in view of the high level of consumer protection which must be guaranteed in EU policies, the solution adopted in paragraphs 24 and 25 of this order is without prejudice to the rights that consumers, such as the applicants in the main proceedings, may have against businesses under other instruments of EU law, such as Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

| 28 | In the light of all the foregoing considerations, the answer to the question referred must be that Article 3(5) of Regulation No 261/2004, read in conjunction with Article 2(a) thereof, must be interpreted as meaning that an undertaking, such as that at issue in the main proceedings, which had lodged an application for an operating licence that was not issued to it at the time for performance of scheduled flights cannot fall within the scope of that regulation, so that the passengers concerned have no right to compensation under Article 5(1)(c) and Article 7(1) of the regulation. |
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28

In the light of all the foregoing considerations, the answer to the question referred must be that Article 3(5) of Regulation No 261/2004, read in conjunction with Article 2(a) thereof, must be interpreted as meaning that an undertaking, such as that at issue in the main proceedings, which had lodged an application for an operating licence that was not issued to it at the time for performance of scheduled flights cannot fall within the scope of that regulation, so that the passengers concerned have no right to compensation under Article 5(1)(c) and Article 7(1) of the regulation.

Costs

Costs

| 29 | 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. |
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29

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.

| | On those grounds, the Court (Eighth Chamber) hereby rules: |
| --- | --- |

On those grounds, the Court (Eighth Chamber) hereby rules:

| | Article 3(5) 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, read in conjunction with Article 2(a) thereof, must be interpreted as meaning that an undertaking, such as that at issue in the main proceedings, which had lodged an application for an operating licence that was not issued to it at the time for the performance of scheduled flights cannot fall within the scope of that regulation, so that the passengers concerned have no right to compensation under Article 5(1)(c) and Article 7(1) of the regulation. |
| --- | --- |

Article 3(5) 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, read in conjunction with Article 2(a) thereof, must be interpreted as meaning that an undertaking, such as that at issue in the main proceedings, which had lodged an application for an operating licence that was not issued to it at the time for the performance of scheduled flights cannot fall within the scope of that regulation, so that the passengers concerned have no right to compensation under Article 5(1)(c) and Article 7(1) of the regulation.

Article 3(5) 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, read in conjunction with Article 2(a) thereof, must be interpreted as meaning that an undertaking, such as that at issue in the main proceedings, which had lodged an application for an operating licence that was not issued to it at the time for the performance of scheduled flights cannot fall within the scope of that regulation, so that the passengers concerned have no right to compensation under Article 5(1)(c) and Article 7(1) of the regulation.

| | [Signatures] |
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[Signatures]

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(
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  )	Language of the case: German.

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