Order;Summary — ECLI:EU:C:2023:201
Date: 2023-03-10
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-607/22 – 1 
Case C-607/22 
Request for a preliminary ruling 
Date lodged: 
20 September 2022 
Referring court: 
Landgericht Düsseldorf (Germany) 
Date of the decision to refer: 
22 July 2022 
Defendant and appellant: 
Eurowings GmbH 
Applicant and respondent: 
flightright GmbH 
  
[…] 
Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany) 
Order 
In the case of 
Eurowings GmbH v flightright GmbH 
the 22nd Civil Chamber of the Regional Court, Düsseldorf, 
further to the hearing of 22 July 2022, 
[…] [composition of the Chamber] […] 
ordered as follows: 
The proceedings are stayed. 
The following question on the interpretation of EU law is referred to the Court of 
Justice of the European Union pursuant to Article 267 TFEU: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 22. 7. 2022 – CASE C-607/22 
 
2  
Must 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 (‘the Air Passenger Rights Regulation’) be 
interpreted as meaning that an air carrier may be categorised as an ‘operating 
air carrier’, within the meaning of that provision, vis-à-vis a passenger in the 
case where the latter has concluded a contract with a tour operator for a 
particular flight of that air carrier without the latter ever having scheduled a 
flight with that flight number for that day, that is to say, where such a flight 
never existed? 
Grounds: 
I. 
The applicant, a company having its registered office in Germany, and acting 
under assigned rights, claims compensation of EUR 1 600.00 from the defendant 
for an alleged flight cancellation, in accordance with Article 7(1)(b) and 
Article 5(1)(a) of the Air Passenger Rights Regulation. 
Customers of the applicant (‘the assignors’) booked a package holiday, including 
carriage by air, to Mallorca with the tour operator TUI Deutschland GmbH. 
According to the travel documents issued by the tour operator, the assignors were 
to be carried on the defendant’s flight, with flight number EW 6850, on 14 July 
2018, departing from Palma de Mallorca at 7:45 p.m. and landing in Hanover at 
10:15 p.m. The defendant did not operate that flight. The assignors arrived at their 
destination of Hanover at 2:22 a.m. on 15 July 2018, by means of alternative 
transport, flight DE1529. 
The defendant submits that it never scheduled a flight with flight number 
EW 6850 travelling from Palma de Mallorca to Hanover on 14 July 2018. It 
claims that such a flight never existed. 
On 17 July 2018, the assignors assigned to the applicant any claims for 
compensation to which they might be entitled under Article 7(1)(b) of the Air 
Passenger Rights Regulation. 
The Amtsgericht (Local Court) upheld the action on the ground that the assignors 
had, on 11 May 2018, a confirmed reservation within the meaning of the Air 
Passenger Rights Regulation for flight EW 6850 from Palma de Mallorca to 
Hanover. That court stated that such a confirmed reservation follows from the 
content of the submitted booking confirmation of TUI Deutschland GmbH. That 
court further held that the defendant’s sweeping assertion that the flight did not 
exist does not meet the requirements for a substantiated submission. In that 
respect, the defendant is obliged, on the basis of a secondary burden of raising and 
presenting an issue, to explain why, for example, a specific flight and specific 
flight number were set out in the booking confirmation. In so far as the defendant 
EUROWINGS 
 
3 
also disputed the cancellation of the flight at issue on the ground that a non-
existent flight cannot be cancelled, the Local Court took the view that that 
submission was not sufficiently substantiated and was therefore immaterial. 
By its appeal, the defendant seeks to have the judgment of the Local Court set 
aside and the action dismissed. The applicant contends that the appeal should be 
dismissed. 
II. 
The success of the defendant’s appeal hinges crucially on the answer to the 
question set out above. 
More specifically: 
If an air carrier cannot be categorised as an ‘operating air carrier’, within the 
meaning of Article 2(b) of the Air Passenger Rights Regulation, vis-à-vis a 
passenger in the case where the latter has concluded a contract with a tour 
operator for a particular flight of that air carrier, but the air carrier never scheduled 
that flight, that is to say, the flight never existed, the action would already have to 
be dismissed due to the fact that the air carrier lacks legal capacity to be sued. 
According to Article 2(b) of the Air Passenger Rights Regulation, the term 
‘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. 
In its judgment [of 21 December 2021] in Joined Cases C-146/20, C-188/20, 
C-196/20 and C-270/20 [Azurair and Others, EU:C:2021:1038], the Court of 
Justice held that an air carrier which decides to perform a particular flight, 
including fixing its itinerary, and, by so doing, offers to conclude a contract of air 
carriage with members of the public is to be regarded as an ‘operating air carrier’ 
within the meaning of the Air Passenger Rights Regulation. 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 (paragraph 56). 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 (paragraph 59). 
In the view of the present Chamber, the question that arises in the present case is 
therefore whether it is sufficient for fulfilment of the condition ‘intends to 
perform’ within the meaning of Article 2(b) of the Air Passenger Rights 
Regulation that a tour operator confirms a seat on a flight to a passenger without 
the air carrier having ever scheduled that flight – not even with different times – 
that is to say, such a flight never existed. 
REQUEST FOR A PRELIMINARY RULING OF 22. 7. 2022 – CASE C-607/22 
 
4  
The applicant takes the view that, in accordance with the findings of the Court of 
Justice in its judgment in Cases C-188/20 and C-196/20, the risk of tour operators 
providing inaccurate information, that is to say, also false information, is to be 
assumed by the air carrier. According to the applicant, the Court of Justice 
proceeds on the assumption – as do the Commission and the Advocate General – 
that statements made by the tour operator are to be attributed to the air carrier, that 
is to say, they must ultimately be treated in the same way as statements made by 
the air carrier. Accordingly, it follows from the confirmation of an individualised 
flight by the tour operator that the air carrier has made an offer of air carriage. If, 
in accordance with the case-law of the Court of Justice, it is irrelevant for the air 
carrier’s liability whether a booking for a flight was actually made, it is logically 
also irrelevant whether the flight ever existed. Even if the tour operator confirms a 
flight with different flight times, that confirmed flight does not exist. Moreover, 
regard being had to the protective purpose of the regulation, the passenger is not 
required to obtain information in order to substantiate his or her claim, beyond 
submitting the booking. If a passenger is required to plead and prove that a flight 
exists, that is to say, that the air carrier offered to conclude a contract of air 
carriage with members of the public, this would represent a constitutive condition 
not covered by the case-law of the Court of Justice and would require the 
passenger to perform a factually impossible act. The passenger is not required to 
provide any evidence beyond the existence of a confirmed booking. The ‘specific 
flight’ referred to by the Court of Justice in paragraph 62 of the decision cited 
above relates only to the specificity in the tour operator’s confirmation, but not to 
the actual existence of the flight. 
The defendant takes the view that it is not to be regarded as the operating air 
carrier vis-à-vis the assignors with regard to the flight at issue. In addition, there is 
no event giving rise to a claim, as the flight was not cancelled, but, rather, it was 
not scheduled at all. 
The present Chamber considers that categorisation of an air carrier as an 
‘operating air carrier’ within the meaning of Article 2(b) of the Air Passenger 
Rights Regulation requires underlying flight scheduling. A passenger who wishes 
to assert claims under the Air Passenger Rights Regulation bears the burden of 
pleading and proving the existence of such flight scheduling or an offer to 
conclude a contract of air carriage with members of the public. 
The present Chamber takes the view that it is only if the air carrier against which a 
claim has been brought can be categorised as an ‘operating air carrier’ within the 
meaning of Article 2(b) of the Air Passenger Rights Regulation that, in a second 
step, it can be sufficient for a confirmed reservation within the meaning of the Air 
Passenger Rights Regulation that the passenger has received, from the tour 
operator with which he or she has a contract, ‘other proof’ within the meaning of 
Article 2(g) of the Air Passenger Rights Regulation, by which he or she is assured 
transport on a particular flight. 
EUROWINGS 
 
5 
In its view, the present case is also not comparable to that underlying the question 
which it referred for a preliminary ruling in Case C-188/20. In that case, the 
defendant air carrier claimed that it had not scheduled the flights in question at the 
times stated in the ‘travel registration’ document. The present Chamber takes the 
view that the confirmation of a booking for a flight with flight times deviating 
from that confirmation constitutes, first of all, an offer of carriage. The extent to 
which such flight times are then corrected by the tour operator or air carrier does 
not change the fact that a flight was in fact initially scheduled and a corresponding 
offer of carriage was made. The situation in which the initial offer is subsequently 
changed is also addressed by the Court of Justice in the decision cited above, in 
which it proceeds on the assumption that, for the purposes of categorisation as an 
‘operating air carrier’, the offer made by that air carrier corresponded to the offer 
referred to by a tour operator in its relations with a passenger, ‘even though 
changes may be made to that offer’ (paragraph 59). However, the present 
Chamber takes the view that a change cannot be made to that offer if such an offer 
never existed in the first place. 
III. 
[…] [stay of proceedings] […] [signatures] […]