Opinion of the Advocate General — ECLI:EU:C:2021:760
Date: 2021-09-23
Language of the case: German
Subject matter: Right of establishment;Consumer protection;Approximation of laws;Freedom to provide services;Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

Translation  C-263/20 — 1 
Case C-263/20 
Request for a preliminary ruling 
Date lodged: 
15 June 2020 
Referring court: 
Landesgericht Korneuburg (Austria) 
Date of the decision to refer: 
26 May 2020 
Applicant: 
Airhelp Limited 
Defendant: 
Laudamotion GmbH 
  
[…] 
REPUBLIC OF AUSTRIA  
Landesgericht Korneuburg (Regional Court, Korneuburg)  […] 
The Regional Court, Korneuburg, sitting as an appellate court […] in the case of 
the applicant Airhelp Limited, Central Hong Kong, […] versus the defendant 
Laudamotion GmbH, 2320 Schwechat, […] concerning EUR 500.00 […], 
following an appeal against the judgment of the Bezirksgericht Schwechat 
(District Court, Schwechat) of 19 December 2019 […], has made the following 
O r d e r 
(I) The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
(1) Are Article 5(1)(c) and Article 7 of Regulation (EC) No 261/2004 of the 
European Parliament and of the Council of 11 February 2004 establishing 
EN 
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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’), to be 
interpreted as meaning that the passenger has a right to [Or. 2] compensation 
where the original time of departure of 14.40 is brought forward to 8.25 on 
the same day? 
(2) Is Article 5(1)(c)(i) to (iii) of the Air Passenger Rights Regulation to be 
interpreted as meaning that examination as to whether the passenger is 
informed of the cancellation is to be conducted solely in accordance with that 
provision and precludes the application of national law on the receipt of 
declarations which was enacted in transposition of Directive 2000/31/EC of 
the European Parliament and of the Council of 8 June 2000 on certain legal 
aspects of information society services, in particular electronic commerce, in 
the Internal Market (‘Directive on Electronic Commerce’) and includes a 
provision whereby declarations are deemed to be received? 
(3) Are Article 5(1)(c)(i) to (iii) of the Air Passenger Rights Regulation and 
Article 11 of the Directive on Electronic Commerce to be interpreted as meaning 
that, where a passenger reserved a flight via a booking platform and 
provided his telephone number and email address, but the booking platform 
forwarded to the air carrier the telephone number and an email address that 
was generated automatically by the booking platform, delivery to the 
automatically generated email address of the notification that the flight has 
been brought forward is to be regarded as information or delivery of 
notification that the flight has been brought forward, even where the booking 
platform does not forward, or delays forwarding, the air carrier’s 
notification to the passenger? [Or. 3] 
(II) The proceedings are stayed pending receipt of the ruling of the Court of 
Justice of the European Union […]. 
Grounds: 
Passengers M***** O***** and G***** P*****, who are resident in the Czech 
Republic, reserved the defendant’s flight OE 503 on 14 June 2018 from Palma de 
Mallorca (PMI, Spain) to Vienna (VIE, Austria). The scheduled time of departure 
was 14.40, with a scheduled time of arrival of 17.05. The passengers used the 
reservation system of the online platform k*****.com. The court is aware that the 
operator of the booking platform is established in the Czech Republic. The email 
address which they entered was: m*****.o*****@gmail.com. k*****.com made 
the reservation in the passengers’ names and, as the reservation was being 
processed, an email address was generated specifically for that reservation. That 
email address (6703421@hositojsmezasemy.com) was entered as the contact 
email address in the air carrier’s system. No other email address was entered or 
known to the air carrier. 
AIRHELP 
 
3 
The applicant, which is seeking judgment awarding EUR 500, submits that the 
passengers have a right to compensation under Article 7 of the Air Passenger 
Rights Regulation of EUR 250 each, giving a total of EUR 500, and that that 
claim was assigned by them to the applicant by a declaration of assignment dated 
12 October 2018. The applicant argues, first, that the flight was delayed by more 
than three hours and, second, that the passengers also have a right to 
compensation because they were not informed that the flight had been brought 
forward by just under six hours until 10 June 2018, that is to say, less than seven 
days before the flight [Or. 4]; that it would have been easy for the defendant to 
establish which reservations had been made via the k*****.com platform in the 
case of all email address entered; that the platform is a travel agent; and that it is 
for the air carrier to ascertain the identity of the other party to the contract, which 
is obvious in the case of automatically generated emails. 
The defendant contests the form of order sought, both as to the grounds for, and 
the amount of, the claim, and contends that the action should be dismissed. It 
argues that the flight was 29 minutes, not more than three hours, late; that an 
email advising that the flight had been brought forward was sent out on 23 May 
2018; that as the passengers’ contact details had not been forwarded to it, the 
defendant was unable to contact them directly, an action which would not have 
been permissible for reasons of data protection; and that it has no contractual 
relationship with k*****.com, which is not a travel agent and which makes 
reservations in the defendant’s systems by pretending to be a passenger against the 
defendant’s will. The defendant contends that it had no way of knowing that 
k*****.com would receive the confirmation of reservation, boarding passes and 
other information via the email address generated specifically for the reservation; 
that, the passenger must take responsibility for using k*****.com; and that an air 
carrier cannot reasonably be expected to verify who the email addresses entered 
actually belong to or engage in detective work to establish each passenger’s actual 
email address. 
By the judgment under appeal, the District Court, Schwechat, which was seised 
at first instance, rejected the form of order sought. [Or. 5] 
In addition to the uncontested facts recounted above, it found that the defendant 
has no contractual relationship with the booking platform k*****.com and that 
k*****.com has no access to the defendant’s reservation system; that, were the 
defendant to review each individual reservation and, in particular, the email 
address entered for it, the defendant would realise that an email address such as 
that used in this case had most probably been generated automatically but, as 
incoming reservations are not opened and checked individually by an employee 
due to the large number of reservations received (around 20 000 a day), there is 
initially no difference as far as the defendant is concerned between reservations 
made via k*****.com and reservations made by the passengers themselves; that it 
cannot be determined whether it is technically possible to establish, without 
having to retrieve each individual reservation, whether a reservation was made via 
k*****.com or whether it is technically possible for the defendant to prevent 
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reservations being made via or by k*****.com; that, when flight times are 
changed, the defendant initially informs passengers by email and that, if that does 
not work, the defendant tries to contact them via some other channel, for example 
by sending a text message to the telephone number provided; that on 23 May 2018 
and on 29 May 2018 the defendant sent information about the earlier flight time to 
the email address generated automatically by k*****.com and, as both emails 
were delivered successfully, the defendant assumed that it had informed the 
passengers of the change to the flight time; and that passenger M***** O***** 
received on 10 June 2018 an email from tickets@k*****.com to his (regular) 
email address (m*****.o*****@gmail.com), informing him [Or. 6] that the time 
of departure had been changed from 14.40 to 8.25. […] The court of first instance 
did not make any further findings, especially as to when the flight which had been 
brought forward landed. Nor did it consider whether the passengers knew or 
should have known that they had been allocated an automatically generated email 
address and whether and, if so, how passengers had the facility to retrieve 
information sent to the automatically generated email address. 
The applicant appealed against that judgment to the referring court, requesting 
that the judgment under appeal be amended to the effect that the form of order 
sought is granted. The applicant refers in particular to the judgment of the Court 
of 11 May 2017, Krijgsman, C-302/16, and argues that it must be guaranteed that 
a passenger whose flight has been booked via a third party and then cancelled 
must be identified. It argues that the air carrier bears the burden of proof as to 
whether information was provided and as to the fact that it was unable to check 
whether the email address belonged to the passenger. 
The defendant requests that the appeal be dismissed. It contends that the judgment 
of the Court of 11 May 2017, Krijgsman, C-302/16, does not apply because the air 
carrier was entitled to assume that the email address provided belonged to the 
passengers; that the defendant did not assume that it had notified a travel agent; 
and that the passengers, not the air carrier, must take responsibility for the fact that 
contact data were provided during the reservation procedure [Or. 7] that did not 
belong to the passengers. 
Lastly, the defendant argues in its response that a flight brought forward by 
several hours is not the same as a cancelled flight. 
The referring court, sitting as an appellate court, is called upon to rule at second 
and final instance on the applicant’s claims. In doing so, it has to confine itself to 
a review of the legal issues, in accordance with the provisions enacted in national 
procedural law […]. It has to consider whether bringing a flight forward 
establishes the same right to compensation as cancellation (Question 1). Then it 
must consider whether the passengers must be regarded as having been validly 
informed of the cancellation (Questions 2 and 3). 
The possible outcomes are as follows: 
AIRHELP 
 
5 
(a) If this was not a cancellation, no right to compensation exists as there has been 
no incomplete performance, in which case the judgment under appeal would have 
to be set aside and the court of first instance would have to examine the facts in 
light of an alleged and unexamined delay rather than a cancellation. 
(b) If this was a cancellation and the notification emailed on 23 May 2018 is 
regarded as having informed the passengers of the cancellation of the flight on 
14 June 2018, no right to compensation under Article 5(1)(c)(i) of the Air 
Passenger Rights Regulation exists, in which case the judgment under appeal 
would again have to be set aside and the court of first instance would have to 
examine the facts in light of an alleged and unexamined delay. 
(c) If the notifications emailed on 23 May 2018 and 29 May 2018 cannot be 
regarded as having informed the passengers of the cancellation of the flight on 
14 June 2018 [Or. 8], the passengers were not informed until 10 June 2018 (by 
email from k*****.com), in which case, as the re-routing was more than one hour 
before the scheduled time of departure and thus outside the time limit laid down in 
Article 5(1)(c)(iii) of the Air Passenger Rights Regulation, the judgment under 
appeal would have to be amended to the effect that the form of order sought is 
granted. 
Consideration of the questions referred: 
Question 1: 
The Air Passenger Rights Regulation confers a right to compensation for 
incomplete performance, denied boarding, cancellation and delay. It does not 
regulate flights that are brought forward. 
The applicant relied in the proceedings at first instance on press release No 
89/2015, X ZR 59/14, issued by the German Bundesgerichtshof (Federal Court of 
Justice, ‘the BGH’). Although the BGH delivered its judgment of 9 June 2015 on 
the basis of an admission by the air carrier and without any further considerations, 
its press release expresses the chamber’s provisional finding that, where a 
scheduled flight is brought forward by the air carrier by more than a negligible 
amount of time, that may substantiate a right to compensation under Article 7(1) 
of the Air Passenger Rights Regulation, as the original flight plan is abandoned 
where a flight is brought forward by several hours. 
The defendant, on the other hand, relies in its response on a judgment delivered by 
the Handelsgericht Wien (Commercial Court, Vienna) on 13 November 2018 (1 R 
285/18k […]). That court found that the application by analogy of the rules 
governing cancellations is frustrated by an unintended loophole in the regulation, 
which deals with denied boarding due to overbooking, [Or. 9], not flights brought 
forward. It has to be noted that the Commercial Court, Vienna, relied on a German 
judgment, delivered by the Amtsgericht Hannover (Local Court, Hanover) on 
3 December 2013 (561 C 3773/13), which ruled at first instance on a case which 
the BGH ultimately brought to a close by a judgment by consent. 
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The referring court tends to concur with the BGH that, where a flight is brought 
forward, the original flight plan has been abandoned and thus the flight has been 
cancelled. 
In light of the different findings made by national courts, the appellate court is 
entitled and obliged to refer the question to the Court. Similar questions were 
referred to the Court in Cases C-79/14 and C-345/19; however, those proceedings 
have since been removed from the register. Comparable questions have been 
referred and are pending in Cases C-10/20 (Flightright) and C-188/20 (Azurair). 
Question 2: 
The following national provisions are relevant for the purpose of examining 
whether the passengers were informed of the earlier flight time: 
Paragraph 862a of the applicable version of the Allgemeines bürgerliches 
Gesetzbuch (Austrian Civil Code, ‘the ABGB’), […] which entered into force in, 
and has remained unchanged since, 1916, reads: 
‘Acceptance shall be regarded as received in time if the declaration was received 
by the proposer within the notification period. However, even if it is out of time, 
the contract shall enter into force if the proposer should have realised that the 
declaration of acceptance was sent in time and fails promptly to notify the other 
party immediately prior to his withdrawal.’ [Or. 10] 
Paragraph 12 of the E-Commerce-Gesetz (Federal Act governing certain legal 
aspects of electronic commercial and legal transactions, ‘the ECG’), 
Bundesgesetzblatt (Federal Law Gazette) I No 152/2001, reads: 
‘Electronic contractual declarations, other legally significant electronic 
declarations and electronic confirmations of receipt shall be regarded as received 
if the party for whom they are intended can retrieve them under normal 
circumstances. This provision may not be departed from to the disadvantage of 
consumers by contractual agreement.’ 
Paragraph 862a of the ABGB has been applied in all case-law on the receipt of 
declarations similar to the air carrier’s notification of a change to the flight time in 
this case. That provision is supplemented by Paragraph 12 of the ECG in the case 
of electronic declarations. It was the documented intention of the legislature that 
that provision should correspond to the second indent of Article 11(1) of the 
Directive on Electronic Commerce; however, it goes beyond the rule on receipt 
laid down in the directive in that it applies not only to orders (that is to say, to 
declarations of contract proposal or acceptance) and acknowledgements of receipt, 
but also to all other legally significant electronic declarations, even those 
unrelated to information society services, such as a simple exchange of 
declarations by email. All these provisions provide for declarations to be deemed 
to be received, essentially from the time at which the declaration can be retrieved. 
However, Article 5(1)(c)(ii) and (iii) and Article 5(2) of the Air Passenger Rights 
AIRHELP 
 
7 
Regulation suggest that information for the passenger under Article 5 of the Air 
Passenger Rights Regulation may be regarded as received only once the 
notification has been received by the passenger. 
It is therefore necessary to examine whether receipt of the declaration notifying 
the earlier flight time has to be appraised under national law on the receipt of 
emails or under the Directive on [Or. 11] Electronic Commerce, or whether the 
Air Passenger Rights Regulation alone applies. The need to coordinate certain 
national laws to ensure the proper functioning of the internal market (recital 6) 
suggests that the Directive on Electronic Commerce and the respective national 
transpositions apply. This view is supported by the obligation imposed by 
Article 14(2) of the Air Passenger Rights Regulation on an operating air carrier 
cancelling a flight to provide each passenger affected with a written notice setting 
out the rules for compensation and assistance in line with the regulation. The fact 
that passengers who are travelling do not necessarily have the same access to 
electronic media as they do at home suggests that the receipt of declarations from 
air carriers should be understood differently. The referring court is therefore of the 
opinion that the question of whether the passenger was informed of a cancellation 
has to be examined solely in accordance with Article 5 of the Air Passenger 
Rights Regulation. 
It would appear to the referring court that this question has not yet been clarified 
in the Court’s case-law. 
Question 3: 
The question of information or receipt in this particular case has to be examined 
first in light of the judgment of the Court of 11 May 2017, Krijgsman, C-302/16, 
by which the Court found, inter alia, that it is clear from Article 13 of the Air 
Passenger Rights Regulation that the regulation in no way restricts the operating 
air carrier’s right to seek reimbursement from a tour operator or another person 
[Or. 12] with whom the operating air carrier has a contract (judgment in 
Krijgsman, paragraph 30). If that is an essential factor for the purpose of 
adjudication, the judgment in Krijgsman cannot be applied to this case. It has been 
established that no contractual relationship exists between the booking platform 
and the air carrier and that the only contractual relationship that exists is between 
the booking platform and one of the two passengers. Therefore, it would be 
necessary to consider if, mirroring the judgment in Krijgsman, the right to 
compensation should be denied and the passenger should be advised of his right to 
compensation from the booking platform. 
According to one Austrian commentary on Paragraph 12 of the ECG, it should, in 
principle, be assumed that a declaration sent via a standardised email account was 
not received. Anyone who surely knows or should know that he has such an 
account but fails to act on that (e.g. by blocking the account or having the 
messages forwarded) must accept that messages which can be retrieved from it are 
valid in his regard, provided that they contain the necessary references. Thus, such 
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declarations are valid even if they are not known about ([…]). As the question of 
whether the passenger knew or even just should have known about the 
automatically generated email account has not been raised in these proceedings, a 
message sent to him via that account would not be regarded as received. 
The referring court further holds that the information forwarded to the booking 
platform is, in principle, forwarded to the passenger and it was only the contested 
information concerning the earlier flight time that was forwarded late. The 
passenger provided the booking platform with the correct email address and did 
not know that it was not provided to the air carrier. Had the air carrier expended 
additional effort, it could have realised that this was an automatically generated 
[Or. 13] email address; however, it would not necessarily have had to conclude 
that messages sent to that address would be received late by the passenger, if at 
all. Given that, according to Article 5(4) of the Air Passenger Rights Regulation, 
the burden of proof as to whether and when the passenger was informed of the 
cancellation of the flight rests with the operating air carrier, the referring court 
assumes that, in a situation in which neither the passenger nor the air carrier can 
be held to blame for having used the automatically generated email address, it 
must be assumed in the event of doubt that the air carrier failed to discharge its 
obligation to inform the passenger of the earlier flight time. 
As it would appear to the referring court that this question has not yet been 
clarified in the Court’s case-law, the court is obliged to refer the question for a 
preliminary ruling. 
[…] 
Regional Court, Korneuburg, […] 
Korneuburg, 26 May 2020 
[…]