# 62022CO0607

ORDER OF THE COURT (Eighth Chamber)

10 March 2023 (
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(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Air transport – Regulation (EC) No 261/2004 – Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights – Article 2 – Concept of ‘operating air carrier’ – Flight booked through a tour operator – Allegedly non-existent flight)

In Case C‐607/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany), made by decision of 22 July 2022, received at the Court on 20 September 2022, in the proceedings

Eurowings GmbH

Eurowings GmbH

v

Flightright GmbH

Flightright GmbH

THE COURT (Eighth Chamber),

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

Advocate General: L. Medina,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule 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(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). |
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1

This request for a preliminary ruling concerns the interpretation of Article 2(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 Eurowings GmbH, an air carrier, on the one hand, and Flightright GmbH, to which any rights of air passengers to compensation have been assigned by those passengers, on the other, concerning the compensation sought by Flightright for an alleged cancellation of the flight booked by the passengers concerned. |
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2

The request has been made in proceedings between Eurowings GmbH, an air carrier, on the one hand, and Flightright GmbH, to which any rights of air passengers to compensation have been assigned by those passengers, on the other, concerning the compensation sought by Flightright for an alleged cancellation of the flight booked by the passengers concerned.

Legal context

Legal context

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





  (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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3

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

‘For the purposes of this Regulation:

...

(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;

...’

| 4 | Article 5 of that regulation, entitled ‘Cancellation’, states, in paragraphs 1 and 4 thereof:
  ‘1.   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:





  (i) | they are informed of the cancellation at least two weeks before the scheduled time of departure; or |
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4

Article 5 of that regulation, entitled ‘Cancellation’, states, in paragraphs 1 and 4 thereof:

‘1.   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:

(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 |
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(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. |
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(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.’

| 5 | Article 7 of Regulation No 261/2004, entitled ‘Right to compensation’, provides, in paragraph 1 thereof:
  ‘Where reference is made to this Article, passengers shall receive compensation amounting to:
  ...





  (b) | EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres; |
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5

Article 7 of Regulation No 261/2004, entitled ‘Right to compensation’, provides, in paragraph 1 thereof:

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

...

(b)

EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres;

...’

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

| 6 | Flightright, to which air passengers have assigned any rights which they might have to compensation, is seeking compensation from Eurowings in a total amount of EUR 1600 pursuant to Article 5(1)(c) and Article 7(1)(b) of Regulation No 261/2004. |
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6

Flightright, to which air passengers have assigned any rights which they might have to compensation, is seeking compensation from Eurowings in a total amount of EUR 1600 pursuant to Article 5(1)(c) and Article 7(1)(b) of Regulation No 261/2004.

| 7 | Those passengers had booked, through a tour operator, a package holiday including air travel to Mallorca (Spain). It is apparent from the order for reference that, according to the travel documents issued by that tour operator, the passengers were to be transported on 14 July 2018 on the flight with the flight number EW6850, which was supposed to be operated by Eurowings and was scheduled to depart from Palma de Mallorca (Spain) at 19.45 and to land in Hanover (Germany) at 22.15. However, Eurowings did not operate that flight, with the result that those passengers arrived in Hanover at 2.22 on 15 July 2018 on a re-routed flight with the flight number DE1529. |
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7

Those passengers had booked, through a tour operator, a package holiday including air travel to Mallorca (Spain). It is apparent from the order for reference that, according to the travel documents issued by that tour operator, the passengers were to be transported on 14 July 2018 on the flight with the flight number EW6850, which was supposed to be operated by Eurowings and was scheduled to depart from Palma de Mallorca (Spain) at 19.45 and to land in Hanover (Germany) at 22.15. However, Eurowings did not operate that flight, with the result that those passengers arrived in Hanover at 2.22 on 15 July 2018 on a re-routed flight with the flight number DE1529.

| 8 | Eurowings argues that it never scheduled a flight with the flight number EW6850 departing from Palma de Mallorca for Hanover on 14 July 2018. Since such a flight never existed, it argues that it cannot be classified as an ‘operating air carrier’ within the meaning of Article 2(b) of Regulation No 261/2004. |
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8

Eurowings argues that it never scheduled a flight with the flight number EW6850 departing from Palma de Mallorca for Hanover on 14 July 2018. Since such a flight never existed, it argues that it cannot be classified as an ‘operating air carrier’ within the meaning of Article 2(b) of Regulation No 261/2004.

| 9 | Flightright brought an action before the Amtsgericht Düsseldorf (Local Court, Düsseldorf, Germany) seeking payment of the compensation provided for by that regulation. That court upheld that action, on the ground that the passengers concerned had a confirmed reservation, within the meaning of that regulation, for the flight with the flight number EW6850 departing from Palma de Mallorca for Hanover. It considered that Eurowings’ general assertion that the flight at issue in the main proceedings had never existed did not satisfy the requirement to demonstrate why a particular flight and flight number were set out in the booking confirmation. |
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9

Flightright brought an action before the Amtsgericht Düsseldorf (Local Court, Düsseldorf, Germany) seeking payment of the compensation provided for by that regulation. That court upheld that action, on the ground that the passengers concerned had a confirmed reservation, within the meaning of that regulation, for the flight with the flight number EW6850 departing from Palma de Mallorca for Hanover. It considered that Eurowings’ general assertion that the flight at issue in the main proceedings had never existed did not satisfy the requirement to demonstrate why a particular flight and flight number were set out in the booking confirmation.

| 10 | Since Eurowings has brought an appeal against the judgment of the Amtsgericht Düsseldorf (Local Court, Düsseldorf) before the referring court, the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany), the latter court questions whether an air carrier can be classified as an ‘operating air carrier’, within the meaning of Article 2(b) of Regulation No 261/2004, even though, according to that air carrier, the flight booked through a tour operator was never scheduled. |
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10

Since Eurowings has brought an appeal against the judgment of the Amtsgericht Düsseldorf (Local Court, Düsseldorf) before the referring court, the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany), the latter court questions whether an air carrier can be classified as an ‘operating air carrier’, within the meaning of Article 2(b) of Regulation No 261/2004, even though, according to that air carrier, the flight booked through a tour operator was never scheduled.

| 11 | In those circumstances, the Landgericht Düsseldorf (Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
  ‘Must Article 2(b) of [Regulation No 261/2004] be interpreted as meaning that an air carrier may be [classified] as an “operating air carrier”, within the meaning of that provision, vis-à-vis a passenger in the case where [that passenger] has concluded a contract with a tour operator for a particular flight of that air carrier without [the air carrier] ever having scheduled a flight with that flight number for that day, that is to say, where such a flight never existed?’ |
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11

In those circumstances, the Landgericht Düsseldorf (Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 2(b) of [Regulation No 261/2004] be interpreted as meaning that an air carrier may be [classified] as an “operating air carrier”, within the meaning of that provision, vis-à-vis a passenger in the case where [that passenger] has concluded a contract with a tour operator for a particular flight of that air carrier without [the air carrier] ever having scheduled a flight with that flight number for that day, that is to say, where such a flight never existed?’

Consideration of the question referred

Consideration of the question referred

| 12 | Under Article 99 of the Rules of Procedure of the Court of Justice, where the reply to the question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, the Court may, at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, rule by reasoned order. |
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12

Under Article 99 of the Rules of Procedure of the Court of Justice, where the reply to the question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, the Court may, at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, rule by reasoned order.

| 13 | It is appropriate to apply that provision in the present case. |
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13

It is appropriate to apply that provision in the present case.

| 14 | By its question, the referring court asks, in essence, whether Article 2(b) of Regulation No 261/2004 is to be interpreted as meaning that an air carrier may be classified as an ‘operating air carrier’, within the meaning of that provision, where a passenger has concluded a contract with a tour operator for a particular flight, with a flight number and a date, which was supposed to be operated by that air carrier, without the air carrier ever having scheduled a flight with that flight number for that date. |
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14

By its question, the referring court asks, in essence, whether Article 2(b) of Regulation No 261/2004 is to be interpreted as meaning that an air carrier may be classified as an ‘operating air carrier’, within the meaning of that provision, where a passenger has concluded a contract with a tour operator for a particular flight, with a flight number and a date, which was supposed to be operated by that air carrier, without the air carrier ever having scheduled a flight with that flight number for that date.

| 15 | Under Article 2(b) of Regulation No 261/2004, an ‘operating air carrier’ is defined 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’. |
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15

Under Article 2(b) of Regulation No 261/2004, an ‘operating air carrier’ is defined 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’.

| 16 | That definition thus sets out two cumulative conditions which must be satisfied if an air carrier is to be classified as an ‘operating air carrier’ relating, first, to the performance of the flight in question and, second, to there being a contract concluded with a passenger (judgment of 4 July 2018, Wirth and Others, C‐532/17, EU:C:2018:527, paragraph 18). |
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16

That definition thus sets out two cumulative conditions which must be satisfied if an air carrier is to be classified as an ‘operating air carrier’ relating, first, to the performance of the flight in question and, second, to there being a contract concluded with a passenger (judgment of 4 July 2018, Wirth and Others, C‐532/17, EU:C:2018:527, paragraph 18).

| 17 | The first condition emphasises the concept of a ‘flight’, which is its key component. The Court has previously held that that concept must be understood as ‘an air transport operation, being as it were a “unit” of such transport, performed by an air carrier which fixes its itinerary’ (judgment of 4 July 2018, Wirth and Others, C‐532/17, EU:C:2018:527, paragraph 19 and the case-law cited). |
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17

The first condition emphasises the concept of a ‘flight’, which is its key component. The Court has previously held that that concept must be understood as ‘an air transport operation, being as it were a “unit” of such transport, performed by an air carrier which fixes its itinerary’ (judgment of 4 July 2018, Wirth and Others, C‐532/17, EU:C:2018:527, paragraph 19 and the case-law cited).

| 18 | It follows that an air carrier which, in the course of its air passenger carriage activities, decides to perform a particular flight, including fixing both its itinerary as well as its timetable, and, by so doing, offers to conclude a contract of air carriage with members of the public must be regarded as the operating air carrier. The adoption of such a decision means that that air carrier bears the responsibility for performing the flight in question, including, inter alia, any cancellation or significantly delayed time of arrival (see, to that effect, judgment of 4 July 2018, Wirth and Others, C‐532/17, EU:C:2018:527, paragraph 20). |
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18

It follows that an air carrier which, in the course of its air passenger carriage activities, decides to perform a particular flight, including fixing both its itinerary as well as its timetable, and, by so doing, offers to conclude a contract of air carriage with members of the public must be regarded as the operating air carrier. The adoption of such a decision means that that air carrier bears the responsibility for performing the flight in question, including, inter alia, any cancellation or significantly delayed time of arrival (see, to that effect, judgment of 4 July 2018, Wirth and Others, C‐532/17, EU:C:2018:527, paragraph 20).

| 19 | Where an air carrier does not decide to perform a particular flight and does not make an offer of air carriage, it cannot be considered that that air carrier intended to perform such a flight within the meaning of Article 2(b) of Regulation No 261/2004, with the result that it cannot be classified as an ‘operating air carrier’ within the meaning of that provision. |
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19

Where an air carrier does not decide to perform a particular flight and does not make an offer of air carriage, it cannot be considered that that air carrier intended to perform such a flight within the meaning of Article 2(b) of Regulation No 261/2004, with the result that it cannot be classified as an ‘operating air carrier’ within the meaning of that provision.

| 20 | However, that situation must be distinguished from the situation in which there is an offer made by the air carrier, but that offer is subject to subsequent amendments by that air carrier, giving rise, as the case may be, to a delay or cancellation of the flight. |
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20

However, that situation must be distinguished from the situation in which there is an offer made by the air carrier, but that offer is subject to subsequent amendments by that air carrier, giving rise, as the case may be, to a delay or cancellation of the flight.

| 21 | In the latter situation, the Court has previously held that an air carrier which has made an offer of air carriage which corresponds to the offer referred to by a tour operator in its relations with a passenger, even though changes may be made to that offer, must be regarded as having intended to perform a flight within the meaning of Article 2(b) of Regulation No 261/2004, with the result that it may be classified as an ‘operating air carrier’ within the meaning of that provision (see, to that effect, judgment of 21 December 2021, Azurair and Others, C‐146/20, C‐188/20, C‐196/20 and C‐270/20, EU:C:2021:1038, paragraphs 59 and 62). |
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21

In the latter situation, the Court has previously held that an air carrier which has made an offer of air carriage which corresponds to the offer referred to by a tour operator in its relations with a passenger, even though changes may be made to that offer, must be regarded as having intended to perform a flight within the meaning of Article 2(b) of Regulation No 261/2004, with the result that it may be classified as an ‘operating air carrier’ within the meaning of that provision (see, to that effect, judgment of 21 December 2021, Azurair and Others, C‐146/20, C‐188/20, C‐196/20 and C‐270/20, EU:C:2021:1038, paragraphs 59 and 62).

| 22 | It is for the referring court, which alone has jurisdiction to assess the facts of the case before it, to determine whether, in the light of the considerations set out in paragraphs 18 to 21 of the present order, Eurowings had not made any offer of air carriage or had made an offer of air carriage which it had, as the case may be, subsequently amended. |
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22

It is for the referring court, which alone has jurisdiction to assess the facts of the case before it, to determine whether, in the light of the considerations set out in paragraphs 18 to 21 of the present order, Eurowings had not made any offer of air carriage or had made an offer of air carriage which it had, as the case may be, subsequently amended.

| 23 | It should be added that in the scenario where the air carrier is not an ‘operating air carrier’ within the meaning of Article 2(b) of Regulation No 261/2004, with the result that it is not liable to pay compensation under that regulation, the passenger does not lose the right to bring legal proceedings, in accordance with national law, against the other party to the contract – in this instance, the tour operator – in order to seek compensation for the loss suffered as a result of that operator’s conduct. |
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23

It should be added that in the scenario where the air carrier is not an ‘operating air carrier’ within the meaning of Article 2(b) of Regulation No 261/2004, with the result that it is not liable to pay compensation under that regulation, the passenger does not lose the right to bring legal proceedings, in accordance with national law, against the other party to the contract – in this instance, the tour operator – in order to seek compensation for the loss suffered as a result of that operator’s conduct.

| 24 | In the light of all of the foregoing, the answer to the question referred is that Article 2(b) of Regulation No 261/2004 must be interpreted as meaning that an air carrier cannot be classified as an ‘operating air carrier’, within the meaning of that provision, where a passenger has concluded a contract with a tour operator for a particular flight, with a flight number and a date, which was supposed to be operated by that air carrier, without the air carrier ever having scheduled a flight with that flight number for that date, but may be regarded as an ‘operating air carrier’, within the meaning of that provision, where it has made an offer which, as the case may be, has been the subject of subsequent amendments on its part. |
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24

In the light of all of the foregoing, the answer to the question referred is that Article 2(b) of Regulation No 261/2004 must be interpreted as meaning that an air carrier cannot be classified as an ‘operating air carrier’, within the meaning of that provision, where a passenger has concluded a contract with a tour operator for a particular flight, with a flight number and a date, which was supposed to be operated by that air carrier, without the air carrier ever having scheduled a flight with that flight number for that date, but may be regarded as an ‘operating air carrier’, within the meaning of that provision, where it has made an offer which, as the case may be, has been the subject of subsequent amendments on its part.

Costs

Costs

| 25 | 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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25

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

| | Article 2(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, |
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Article 2(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,

Article 2(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 an air carrier cannot be classified as an ‘operating air carrier’, within the meaning of that provision, where a passenger has concluded a contract with a tour operator for a particular flight, with a flight number and a date, which was supposed to be operated by that air carrier, without the air carrier ever having scheduled a flight with that flight number for that date, but may be regarded as an ‘operating air carrier’, within the meaning of that provision, where it has made an offer which, as the case may be, has been the subject of subsequent amendments on its part. |
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must be interpreted as meaning that an air carrier cannot be classified as an ‘operating air carrier’, within the meaning of that provision, where a passenger has concluded a contract with a tour operator for a particular flight, with a flight number and a date, which was supposed to be operated by that air carrier, without the air carrier ever having scheduled a flight with that flight number for that date, but may be regarded as an ‘operating air carrier’, within the meaning of that provision, where it has made an offer which, as the case may be, has been the subject of subsequent amendments on its part.

must be interpreted as meaning that an air carrier cannot be classified as an ‘operating air carrier’, within the meaning of that provision, where a passenger has concluded a contract with a tour operator for a particular flight, with a flight number and a date, which was supposed to be operated by that air carrier, without the air carrier ever having scheduled a flight with that flight number for that date, but may be regarded as an ‘operating air carrier’, within the meaning of that provision, where it has made an offer which, as the case may be, has been the subject of subsequent amendments on its part.

| | [Signatures] |
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[Signatures]

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  )	Language of the case: German.

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