Information;Order — ECLI:EU:C:2021:859
Date: 2021-10-11
Language of the case: French
Court formation: Ninth Chamber
Subject matter: Consumer protection;Transport
Procedure: Reference for a preliminary ruling
Origin: France

Anonymised version 
Translation C-686/20 – 1 
Case C-686/20 
Request for a preliminary ruling 
Date lodged: 
18 December 2020 
Referring court: 
Tribunal de proximité d’Aulnay-sous-Bois (France) 
Date of the decision to refer: 
11 December 2020 
Applicant: 
YE 
LP 
AN, legally represented by her parents YE and LP 
OL, legally represented by her parents YE and LP 
VX, legally represented by his parents YE and LP 
CE, legally represented by her parents YE and LP 
Defendant: 
Vueling Airlines SA 
  
TRIBUNAL DE PROXIMITÉ (LOCAL COURT) 
[…] AULNAY-SOUS-BOIS 
[…] 
CIVIL HEARING 
EN 
REQUEST FOR A PRELIMINARY RULING OF 11. 12. 2020 – CASE C-686/20 
 
2  
Anonymised version 
Judgment given […] ON THE ELEVENTH OF DECEMBER TWO 
THOUSAND AND TWENTY 
[…] [composition] 
[…] 
APPLICANTS: 
YE, acting both on her own behalf and on behalf of AN, OL, VX and CE, minors, 
[…] ORLEANS […] 
LP, acting both on his own behalf and on behalf of AN, OL, VX and CE, minors, 
[…] ORLEANS […] 
ON ONE SIDE 
DEFENDANT: 
Company governed by foreign law VUELING, […] El Prat de Llobregat 
BARCELONA (SPAIN) […] 
ON THE OTHER SIDE 
[Or. 2] 
YE and LP, on their own behalf and as legal representatives of their minor 
children AN, OL, VX and CE, purchased plane tickets for flight VY8727 
scheduled to depart from TANGIERS (MOROCCO) on 9 September 2017 at 
19.40 and land in PARIS CDG (FRANCE) on the same day at 23.30. The flight 
was operated by the public limited company VUELING. 
The flight landed in PARIS CDG with a delay of more than three hours. 
By statement received at the registry on 25 May 2018, YE and LP, on their own 
behalf and as legal representatives of their minor children AN, OL, VX and CE, 
brought an action before the Local Court of Aulnay-sous-Bois seeking an order 
requiring the public limited company VUELING to pay them the following sums: 
– EUR 400 per applicant, that is, EUR 2 400, on the basis of Articles 5, 6 and 7 
of European Regulation No 261/2004, together with interest at the statutory 
rate as from 9 May 2018; 
– EUR 300 per applicant, that is, EUR 1 800, in respect of damages for wrongful 
obstruction of legal process; 
– EUR 500 per applicant, that is, EUR 3 000, on the basis of Article 700 of the 
code de procédure civile (French Code of Civil Procedure), in addition to costs. 
VUELING AIRLINES SA 
 
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Anonymised version 
Pursuant to décret No 2019-1333 (Decree No 2019-1333) of 11 December 2019, 
the Tribunal d’instance d’Aulnay-sous-Bois (District Court, Aulnay-sous-Bois) 
became the Local Court of Aulnay-sous-Bois on 1 January 2020. The hearing in 
the case took place on 13 November 2020. 
At that hearing, […] the applicants maintained their claims based on the delay of 
the flight which arrived at its destination 3 hours and 15 minutes late. In response 
to the company’s refusal to compensate their daughter AN, who, having been born 
on 19 May 2016, was under the age of two on the date of the flight, they primarily 
request that the following question be referred to the Court of Justice of the 
European Union (CJEU) for a preliminary ruling: 
‘Does the exclusion from the scope of Regulation (EC) No 261/2004 of air 
passengers “travelling free of charge or at a reduced fare not available directly or 
indirectly to the public”, as provided for in Article 3(3) of that regulation, entail 
the exclusion of passengers under the age of two on the ground that the business 
practice of airlines is generally that tickets for children under the age of two are 
free of charge, even though: 
– that fare is available directly to the public since it is the consequence of the 
application of an objective criterion linked to the age of the passenger and not 
to a particular status; 
– that fare is offered by airlines as part of their commercial programmes; 
– the exclusion of children under the age of two from the scope of the regulation 
would effectively release airlines of their re-routing and care obligations laid 
down in Articles 8 and 9 of that regulation solely in respect of children under 
the age of two; 
– there is no valid reason why the guarantee of a high level of passenger 
protection – which is a consistent theme in the case-law of the CJEU – should 
be denied to the most vulnerable passengers, namely young children, especially 
since it is common ground that the “undoubted financial consequences for air 
carriers” of compensation for passengers provided for by the regulation “cannot 
be considered disproportionate to the aim of ensuring a high level of protection 
for passengers”; 
– there is no valid reason why children under the age of two who experience the 
same delay as other passengers and who are likely to feel the impact more 
acutely, in view of young children’s increased sensitivity to stress, anxiety and 
surrounding tension – feelings which they are unable to control or channel – 
and to their own tiredness and that of their close family members, should be 
excluded from the right to compensation?’  
[…] [alternative claim not relevant for the preliminary ruling procedure] 
[…] [Or. 3] […] [procedural point] 
REQUEST FOR A PRELIMINARY RULING OF 11. 12. 2020 – CASE C-686/20 
 
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[…] [T]he public limited company VUELING does not object to paying 
compensation to the married couple YE and LP and their three eldest children, but 
refuses to pay any sum whatsoever in respect of compensation to AN who, aged 
under two on the date of the flight, travelled free of charge. It argues that there is 
no need for either the referral to the CJEU or […] [the subject matter of the 
alternative claim], since it is clear from Article 3(3) – the provisions of which are 
perfectly comprehensible – that children under the age of two, who have no 
confirmed reservation for themselves or an allocated seat and who are present in 
the aircraft free of charge, are not entitled to compensation under the regulation. 
[…] 
[…] [procedural points] 
GROUNDS 
[…] [procedural point] 
In the matter of flight delays, it follows from Article [3](1)(b) of Regulation 
No 261/2004 of 11 February 2004 that that regulation applies to passengers 
departing from an airport located in a third country to an airport situated in the 
territory of a Member State to which the Treaty applies, unless they received 
benefits or compensation and were given assistance in that third country, if the 
operating air carrier of the flight concerned is a Community carrier, as is the case 
here. 
Consideration of the question referred to the CJEU 
Under Article 19(3)(b) of the Treaty on European Union (TEU), the Court of 
Justice of the European Union (CJEU) is, in accordance with the Treaties, to give 
preliminary rulings, at the request of courts or tribunals of the Member States, on 
the interpretation of Union law or the validity of acts adopted by the institutions. 
Under Article 267 of the Treaty on the Functioning of the European Union 
(TFEU), the Court of Justice of the European Union has jurisdiction to give 
preliminary rulings concerning the interpretation of the Treaties. Where such a 
question is raised before any court or tribunal of a Member State, that court or 
tribunal may, if it considers that a decision on the question is necessary to enable 
it to give judgment, request the Court to give a ruling thereon. 
Article 3(3) of Regulation No 261/2004 of 11 February 2004 provides that the 
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’. 
In the present case, it is not disputed that the married couple YE and LP travelled 
on flight VY8727 on 9 September 2017 operated by the public limited company 
VUELING AIRLINES SA 
 
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Anonymised version 
VUELING with their four children, including AN, who at that time was under the 
age of two, or that the arrival of the flight was delayed by more than three hours. 
It is apparent from the documents in the case that AN did not have an allocated 
seat and that her name does not appear on the [Or. 4] reservations booked by her 
parents. They have not produced a boarding card in her name. 
In their claim that AN is entitled to compensation, the applicants submit, in the 
first place, that the condition of availability to the public laid down in the first 
sentence of that article applies both to passengers travelling free of charge and to 
passengers qualifying for a free fare. They state that, in the present case, the 
possibility of travelling free of charge is based on an objective criterion linked to 
the age of the passenger, with the result that it is an advantage available directly to 
the public. In the second place, the applicants assert that the offer made by 
numerous airlines of allowing children under the age of two to travel on free 
tickets is a commercial offer for the purposes of the second sentence of that 
article. In the third place, they argue that the exclusion of children under the age 
of two from the scope of the regulation at issue would have the effect of depriving 
them of their right to re-routing, thereby placing them, in view of their age, in a 
particularly vulnerable situation, contrary to the spirit of the regulation which, on 
the contrary, is intended to afford air passengers a significant level of protection. 
The airline, for its part, states that children under the age of two do not have a 
confirmed reservation for themselves or a ticket, that they travel on their parents’ 
lap and that their presence in the aircraft is permitted free of charge. It infers from 
this that Article 3(3) of the regulation excludes them from the scope of that 
regulation. 
The interpretation of that article has already given rise to numerous decisions by 
national courts which have never, to this court’s knowledge, referred a question to 
the CJEU for a preliminary ruling in that regard. However, not all of those courts 
have adjudicated in the same way. Thus: 
– by judgment of 8 April 2019 […], the Tribunal d’instance de Paris (District 
Court, Paris) held that a child under the age of one could receive compensation 
under Regulation No 261/2004 on the following grounds: 
The airline failed to prove ‘that the [child’s] ticket had been issued at a reduced 
fare not available directly or indirectly to the public. The tickets produced were 
purchased on the website OPODO, as shown by the documents submitted by the 
married couple in support of their claims. The child is therefore entitled to the 
benefit of European Regulation No 261/2004, since that regulation does not, 
moreover, lay down any age condition for that entitlement’; 
– by judgment of 20 May 2019 […], the Tribunal d’instance d’Ivry-sur-Seine 
(District Court, Ivry-sur-Seine) made a determination to the contrary, citing the 
following grounds: 
REQUEST FOR A PRELIMINARY RULING OF 11. 12. 2020 – CASE C-686/20 
 
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Anonymised version 
‘It is proven and undisputed that although the child … indeed appears on the 
airline reservation under the name of his mother and was therefore included in the 
flight … in question, his name does not appear on the passenger list. All that 
appears is the reference “INF” alongside [his mother’s] name, indicating that she 
was travelling with a child under the age of two. That arrangement was put in 
place by airlines to enable, for commercial purposes, children under the age of 
two to travel on their parents’ lap free of charge. Accordingly, in those 
circumstances, the child has neither a plane ticket nor a boarding card. Article 3(3) 
of Regulation No 261/2004 excludes passengers travelling free of charge from the 
benefit of that regulation. [A child] who is unable to produce a plane ticket 
indicating an allocated seat is therefore not entitled to the lump-sum compensation 
claimed from the company’; 
– by judgment of 18 July 2019 […], the Tribunal d’instance de Rennes (District 
Court, Rennes) adjudicated in the same way, citing the following grounds: 
‘It is common ground that the child, who was nine months old on the date of the 
scheduled flight, indeed appears on the airline reservation under the name of [his 
mother] and that he was required to travel on her lap. For obvious reasons relating 
to air safety, arrangements are made to ensure that the seat of the parent 
accompanying the child has two sets of breathing apparatus in case of an air 
accident. It has not been shown that the rights to re-routing and care of the child 
under conditions comparable to adults are excluded. It is apparent from the 
documents before the court that [the child’s] parents did not book a seat 
specifically for their child and that all that was charged to [his mother’s] ticket 
was a fare in respect of the baby’s baggage and accessories in the amount of 
EUR 54.69. Article 3(3) cited above excludes passengers travelling free of charge 
from the right to compensation. Furthermore, [Or. 5] the applicants in this case 
have not produced any plane ticket or boarding card in [the child’s] name in order 
to claim that lump-sum compensation. The fact that the “baby baggage”’ 
supplement was paid for is not sufficient to confer on [the child] the status of 
passenger for the purposes of the regulation. The applicants have not produced 
any evidence showing that [the child] was in possession of a ticket issued at a 
preferential fare as part of a commercial programme. Last, compensation is in the 
form of a lump sum and is thus payable without the need for specific harm to have 
been caused. There was therefore no discrimination against [the child] on account 
of that exclusion from the scope of the regulation. Consequently, the claim for 
payment of lump-sum compensation in the amount of EUR 250 brought by [the 
child], represented by his legal representatives, is hereby dismissed’. 
It is apparent from those decisions that the child was recognised as having a right 
to compensation in the decision of 8 April 2019 on account of, in particular, the 
existence of a ticket in the child’s name, and that the decisions of 20 May 2019 
and 18 July 2019 took the contrary view on the basis, inter alia, of the absence of 
a ticket and boarding card in the child’s name, even though, in both cases, the 
name of the child appeared on the reservation of one of the child’s parents. 
VUELING AIRLINES SA 
 
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Anonymised version 
Not only is the interpretation of Article 3(3) of Regulation No 261/2004 necessary 
for the resolution of the present dispute, but it also follows from the foregoing that 
that question frequently arises before the national courts as a result of the 
exponential increase in proceedings brought on the basis of that regulation and 
that those proceedings have given rise to conflicting decisions. 
[…][verbatim statement of the operative part] 
ON THOSE GROUNDS 
The court […] [procedural point] 
REFERS the following questions to the Court of Justice of the European Union 
for a preliminary ruling: 
(1) Is the first sentence of Article 3(3) of Regulation No 261/2004 to be 
interpreted as meaning that the condition of availability to the public 
applies to both preferential fares and free-of-charge travel? 
(2) Is the second sentence of Article 3(3) of Regulation No 261/2004 to 
be interpreted as meaning that passengers whose presence in the 
aircraft is permitted free of charge on account of their young age are 
excluded from the scope of the regulation if they do not have: [Or. 6]  
(a) a ticket in their name? 
(b) a reservation in their name? 
(c) a ticket and reservation in their name? 
[…] 
[…] [procedural points] 
[…] [signatures]