Opinion of the Advocate General — ECLI:EU:C:2020:991
Date: 2020-12-03
Language of the case: German
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, it seems to me to follow from that judgment that effective enjoyment of the passenger right to assistance is not possible if the need for the air carrier’s prior intervention is overlooked. 69. While the right to the cost of a transfer between the airport of arrival and that for which the booking was made (or another close-by destination agreed with the passenger) is, as I have maintained above, to be interpreted independently of the rights to assistance set out in Article 8(1) of Regulation No 261/2004, I consider that the corresponding obligation of the air carrier must also take account of the requirement of protection for the passenger/consumer as expressed in recital 1 of that regulation. 70. In the light of the foregoing, I suggest that the Court’s answer to the sixth question should be that Article 8(3) of Regulation No 261/2004 is to be interpreted as meaning that where the flight lands at an airport which is not that for which the booking was made, the air carrier must take the initiative and offer the passenger to bear the cost of transferring the passenger to that airport or another close-by destination agreed with the passenger. C. The seventh question 71. By its seventh question, the referring court essentially asks whether a breach of the obligations to bear the cost of transferring passengers from the airport of arrival to that for which the booking was made (or a close-by destination agreed with the passenger), and of transport between the airport and the place of accommodation, which are incumbent on the air carrier pursuant to Article 8(3) and Article 9(1)(c) of Regulation No 261/2004, can give rise to a right to lump-sum compensation pursuant to Article 7(1) of that regulation. 72. First of all, I suggest that the Court should reformulate that question so as to refer to Article 8(3) of Regulation No 261/2004 alone. As regards Article 9(1)(c) of the regulation, I consider that the relevance of the interpretation of that provision for the resolution the dispute in the main proceedings is less than clear from the factual background to the present matter and that, in any event, an independent reading of Article 8(3) of the regulation, which I have advocated in this Opinion, is such as to rule out such relevance in so far as, on that reading, it is only Article 8(3) of Regulation No 261/2004 that is applicable to a case of diversion such as that under consideration in the present case. 73. It does not seem to me that the reformulated question gives rise to any particular difficulties, as it can be answered on the basis of the Court’s existing case-law. 74. First of all, I observe that the Court has already explicitly indicated, albeit obiter dictum, in its judgment in Sousa Rodríguez and Others, (35) that the question of the existence of a right to compensation on the part of the passenger, arising from a breach by the air carrier of the obligations of assistance and care incumbent on it under Articles 8 and 9 of Regulation No 261/2004, is to be answered in the affirmative. 75. It could be asked whether a passenger also enjoys that right where the air carrier has breached the obligation to bear the cost of transferring the passenger from the airport of arrival to that for which the booking was made (or another close-by destination as agreed), contained in Article 8(3) of Regulation No 261/2004. I would state once again that the approach taken in this Opinion is that the obligations of assistance properly so called, breach of which gives rise to a right to compensation under the judgment in Sousa Rodríguez and Others, (36) are contained in Article 8(1) of that regulation alone, and whereas Article 8(3) of the regulation is to be regarded as an independent provision. Nonetheless, I consider that the question must be answered in the affirmative, given that the obligation at issue, just like the obligations of assistance (and care), ‘would be nugatory if it could not be enforced’, to borrow the words of Advocate General Sharpston in her Opinion in Sousa Rodríguez and Others. (37) 76. As to whether the compensation in question can be lump-sum compensation under Article 7(1) of Regulation No 261/2004, as claimed by the applicant in the main proceedings, it is apparent on close examination of the Court’s reasoning in the judgment in McDonagh, (38) where the validity of Article 9 of Regulation No 261/2004 was considered in the light of the principle of proportionality, that it cannot. 77. The Court held that the lack of a temporal or monetary limit on the obligation to provide care contained in Article 9 of that regulation did not infringe the principle of proportionality, given that the financial consequences for air carriers, even if substantial, were not disproportionate to the aim of ensuring a high level of protection for passengers, and that in any event, air carriers, as experienced operators, were entitled to pass on the costs incurred as a result of that obligation to airline ticket prices. At that point, the Court made a further observation so as to clarify that, nonetheless, an air passenger could only obtain, by way of compensation for the failure of the air carrier to comply with its obligation to provide care, reimbursement of the amounts which, in the light of the specific circumstances of each case, proved necessary, appropriate and reasonable to make up for the shortcomings of the air carrier in the provision of care to that passenger, a matter it left to be assessed by the national court. (39) The Court thus intended to convey, it seems to me, that an interpretation that is consistent with the principle of proportionality presupposes a correlation between the compensation payable by the air carrier and the costs incurred by the passenger in question, and by definition, this rules out lump-sum compensation of the kind provided for by Article 7(1) of Regulation No 261/2004. 78. I readily acknowledge that, when the Court added that observation to its judgment, it was not for the specific purpose of rejecting an entitlement to lump-sum compensation, but simply because it was necessary to place a limit on the amounts claimed by passengers on the basis of breach of the air carrier’s obligation to provide care, in cases where the flight was cancelled in extraordinary circumstances which continued for some time. Nonetheless, in my view the general character of the formulation chosen by the Court, combined with the fact that the observation in question also appears in the operative part of that judgment, indicates that the Court considered that to recognise an entitlement, on the part of the passenger, to lump-sum compensation such as that provided for in Article 7(1) of Regulation No 261/2004, arising from any breach of the obligation to provide care contained in Article 9 of that regulation, would have negative financial consequences for the air carrier of such significance that such an interpretation of that article would infringe the principle of proportionality. 79. It can accordingly be concluded that, in the present case, breach by the air carrier of the obligation of care contained in Article 9(1)(b) of Regulation No 261/2004 entitles the passenger to reimbursement of the amounts which, in the light of the specific circumstances of each case, proved necessary, appropriate and reasonable to make up for that breach. 80. Given that any provision of Regulation No 261/2004 must be interpreted in such a way as to be consistent with the principle of proportionality, it is clear, to my mind, that the same applies where it is the obligation in Article 8(3) of that regulation that is breached by the air carrier. 81. In the light of the considerations set out above, I suggest that the Court’s answer to the seventh question referred should be that a breach of the obligation, incumbent on the air carrier pursuant to Article 8(3) of Regulation No 261/2004, to bear the cost of transferring passengers from the airport of arrival to the airport for which the booking was made (or a close-by destination agreed with the passenger) does not entitle the passenger to the lump-sum compensation referred to in Article 7(1) of that regulation. However, it does entitle the passenger to reimbursement of the amounts which, in the light of the specific circumstances of each case, prove necessary, appropriate and reasonable to make up for the air carrier’s breach. IV. Conclusion 82. Having regard to the foregoing considerations, I suggest that the Court should answer the second, third, sixth and seventh questions referred by the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) as follows: (1) Article 5(1)(c), Article 6, Article 7(1) and Article 8(3) 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 are to be interpreted as meaning that, where a flight lands at an airport which is not that for which the booking was made, but is in the same town, city or region, the passenger is not entitled to compensation on the basis that the flight has been cancelled. A right to compensation would arise only if, as a result of the diversion, the passenger was delayed by three hours or more in reaching the airport for which the booking was made, or the other close-by destination agreed with the air carrier. (2) Article 8(3) of Regulation No 261/2004 is to be interpreted as meaning that where the flight lands at an airport which is not that for which the booking was made, the air carrier must take the initiative and offer the passenger to bear the cost of transferring the passenger to that airport or another close-by destination agreed with the passenger. (3) A breach of the obligation, incumbent on the air carrier pursuant to Article 8(3) of Regulation No 261/2004, to bear the cost of transferring passengers from the airport of arrival to the airport for which the booking was made (or a close-by destination agreed with the passenger), does not entitle the passenger to the lump-sum compensation referred to in Article 7(1) of that regulation. However, it does entitle the passenger to reimbursement of the amounts which, in the light of the specific circumstances of each case, prove necessary, appropriate and reasonable to make up for the air carrier’s breach. 1 Original language: French. 2 Regulation 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). 3 Judgment of 19 November 2009 (C‑402/07 and C‑432/07, EU:C:2009:716). 4 Despite the reference to Article 6(1) of Regulation No 261/2004, it seems clear to me that the ‘long delay’ envisaged by the third question relates to cases of long delay on arrival, or in other words the situation where arrival is delayed by three hours or more, as considered in the judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716), and not cases of long-delayed departure. It is apparent from the order for reference that the claim for compensation brought by the applicant in the main proceedings before the national courts was based, inter alia, on delay on arrival of the flight. In any event, delayed departure does not give rise, in itself, to any right to compensation, given that Article 6 of Regulation No 261/2004 does not make reference to Article 7 of that regulation. 5 See judgment of 10 July 2008, Emirates Airlines (C‑173/07, EU:C:2008:400, paragraph 40). 6 Judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 30). 7 Judgment of 13 October 2011 (C‑83/10, EU:C:2011:652). 8 Judgment of 13 October 2011, Sousa Rodríguez and Others (C‑83/10, EU:C:2011:652, paragraph 28). 9 My italics. 10 Order of 5 October 2016 (C‑32/16, EU:C:2016:753). 11 Judgment of 13 October 2011 (C‑83/10, EU:C:2011:652). 12 Order of 5 October 2016, Wunderlich (C‑32/16, EU:C:2016:753, paragraph 18). 13 Order of 5 October 2016 (C‑32/16, EU:C:2016:753). 14 Judgment of 19 November 2009 (C‑402/07 and C‑432/07, EU:C:2009:716, paragraphs 29 to 36). 15 Judgment of 19 November 2009 (C‑402/07 and C‑432/07, EU:C:2009:716). 16 Judgment of 19 November 2009 (C‑402/07 and C‑432/07, EU:C:2009:716). 17 This is particularly clear from the Italian language version of Article 8 of Regulation No 261/2004, in which the term ‘re-routing’ is translated as ‘imbarco su un volo alternativo’ (my italics), which refers to ‘boarding an alternative flight’. 18 Council Regulation of 4 February 1991 establishing common rules for a denied boarding compensation system in scheduled air transport (OJ 1991 L 36, p. 5). 19 Article 6(2) of Regulation No 295/91 was worded as follows: ‘When a town, city or region is served by several airports and an air carrier offers a passenger, who has been denied boarding, a flight to an airport other than the destination airport that the passenger had booked, the cost of travelling between the alternative airports or to an alternative close-by destination, agreed with the passenger, shall be borne by the air carrier’. 20 See Article 6(1) of Regulation No 295/91, under which ‘Apart from the minimum compensation amounts set out in Article 4, the air carrier shall offer free of charge to passengers who are denied boarding: (a) the expenses for a telephone call and/or telex/fax message to the point of destination; (b) meals and refreshments in a reasonable relation to the waiting time; (c) hotel accommodation in cases where an additional stay of one or more nights is necessary’. 21 This provision is worded as follows: ‘In the event of boarding being denied, a passenger shall have the choice between: – reimbursement without penalty of the cost of the ticket for the part of the journey not made, or – re-routing to his final destination at the earliest opportunity, or – re-routing at a later date at the passenger’s convenience’. 22 Proposal for a regulation of the European Parliament and of the Council establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights COM(2001) 784 final – 2001/0305(COD) (OJ 2002 C 103 E/17, p. 225). 23 Among many possible examples, see the Court’s reference to the objectives of Regulation No 261/2004 when it was invited to interpret the word ‘flight’ in its judgment of 10 July 2008, Emirates Airlines (C‑173/07, EU:C:2008:400, paragraph 35), where it observed that ‘to regard a “flight” … as an outward and return journey would in fact have the effect of reducing the protection to be given to passengers under the regulation, which would be contrary to its objective of ensuring a high level of protection for passengers’. 24 See judgment of 22 June 2016, Mennens (C‑255/15, EU:C:2016:472, paragraph 26 and the case-law cited). 25 See, in this regard, Proposal for a regulation of the European Parliament and of the Council establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights COM(2001) 784 final – 2001/0305(COD), paragraph 5. See also judgment of 10 January 2006, IATA and ELFAA (C‑344/04, EU:C:2006:10, paragraph 83). 26 Judgment of 19 November 2009 (C‑402/07 and C‑432/07, EU:C:2009:716). 27 Judgments of 10 January 2006, IATA and ELFAA (C‑344/04, EU:C:2006:10, paragraphs 93 to 100); of 10 July 2008, Emirates Airlines (C‑173/07, EU:C:2008:400, points 38 and 39); of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 48 et seq.); of 23 October 2012, Nelson and Others (C‑581/10 and C‑629/10, EU:C:2012:657, paragraphs 33 to 40); and of 7 September 2017, Bossen and Others (C‑559/16, EU:C:2017:644, paragraph 19 et seq.), and order of 5 October 2016, Wunderlich (C‑32/16, EU:C:2016:753, paragraph 21 et seq.). 28 Judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 49). 29 My italics. 30 My italics. 31 My italics. 32 My italics. 33 The German (‘so können Fluggäste wählen zwischen …’), Finnish (‘matkustajalle on annettava mahdollisuus valita jokin seuraavista vaihtoehdoista …’), Lithuanian (‘keleiviams leidžiama rinktis …’) and Polish (‘pasażerowie mają prawo wyboru pomiędzy …’) language versions merely refer to the fact that passengers may or have the right to choose between the various types of assistance available, without specifying if it is for the air carrier to offer passengers the assistance provided for in that provision or for the latter to ask for it, whereas the other language versions confirm the first alternative. 34 Judgment of 29 July 2019 (C‑354/18, EU:C:2019:637, paragraphs 53 to 55). 35 Judgment of 13 October 2011 (C‑83/10, EU:C:2011:652, paragraph 44). 36 Judgment of 13 October 2011 (C‑83/10, EU:C:2011:652). 37 Opinion of Advocate General Sharpston in Sousa Rodríguez and Others (C‑83/10, EU:C:2011:427, point 60). 38 Judgment of 31 January 2013 (C‑12/11, EU:C:2013:43). 39 See judgment of 31 January 2013, McDonagh (C-12/11, EU:C:2013:43, paragraphs 45 to 51).