# C_2023261EN.01001701.xml

| 24.7.2023 | EN | Official Journal of the European Union | C 261/17 |
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24.7.2023

EN

Official Journal of the European Union

C 261/17

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Judgment of the Court (Third Chamber) of 8 June 2023 (request for a preliminary ruling from the Landesgericht Korneuburg — Austria) — Austrian Airlines AG v TW

(Case C-49/22, (1) Austrian Airlines (Repatriation flight))

(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)

(2023/C 261/25)

Language of the case: German

Referring court

Landesgericht Korneuburg

Parties to the main proceedings

Applicant: Austrian Airlines AG

Defendant: TW

Operative part of the judgment

| 1. | 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,
  must be interpreted as meaning that a repatriation flight, organised by a Member State in the context of consular assistance, following the cancellation of a flight, does not constitute ‘re-routing, under comparable transport conditions, to [the] final destination’, within the meaning of Article 8(1)(b) of that regulation, which must be offered by the operating air carrier to the passenger whose flight has been cancelled. |
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1.

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,

must be interpreted as meaning that a repatriation flight, organised by a Member State in the context of consular assistance, following the cancellation of a flight, does not constitute ‘re-routing, under comparable transport conditions, to [the] final destination’, within the meaning of Article 8(1)(b) of that regulation, which must be offered by the operating air carrier to the passenger whose flight has been cancelled.

| 2. | Article 8(1) of Regulation No 261/2004
  must be interpreted as meaning that a passenger who, following the cancellation of his or her return flight, registers himself or herself for a repatriation flight organised by a Member State in the context of consular assistance, and who is required to pay on that basis to that State a compulsory contribution to costs, does not have a right to reimbursement of those costs at the expense of the operating air carrier on the basis of that regulation.
  By contrast, such a passenger may invoke before a national court the failure of the operating air carrier to comply, first, with its obligation to reimburse the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made or no longer serving any purpose in relation to the passenger’s original travel plan, and, secondly, with its obligation to provide assistance, including its duty to provide information under Article 8(1) of that regulation, in order to obtain compensation from that operating air carrier. Such compensation must nevertheless be limited to what, in the light of the specific circumstances of each case, proves necessary, appropriate and reasonable to remedy the shortcomings of that operating air carrier. |
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2.

Article 8(1) of Regulation No 261/2004

must be interpreted as meaning that a passenger who, following the cancellation of his or her return flight, registers himself or herself for a repatriation flight organised by a Member State in the context of consular assistance, and who is required to pay on that basis to that State a compulsory contribution to costs, does not have a right to reimbursement of those costs at the expense of the operating air carrier on the basis of that regulation.

By contrast, such a passenger may invoke before a national court the failure of the operating air carrier to comply, first, with its obligation to reimburse the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made or no longer serving any purpose in relation to the passenger’s original travel plan, and, secondly, with its obligation to provide assistance, including its duty to provide information under Article 8(1) of that regulation, in order to obtain compensation from that operating air carrier. Such compensation must nevertheless be limited to what, in the light of the specific circumstances of each case, proves necessary, appropriate and reasonable to remedy the shortcomings of that operating air carrier.

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(1)  OJ C 191, 10.5.2022.

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