Judgment;Summary — ECLI:EU:C:2022:762
Date: 2022-10-06
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Association Agreement;External relations;Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-436/21 – 1 
Case C-436/21 
Request for a preliminary ruling 
Date lodged: 
15 July 2021 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
22 June 2021 
Applicant and appellant on a point of law: 
flightright GmbH 
Defendant and respondent in the appeal on a point of law: 
American Airlines, Inc. 
  
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE, GERMANY) 
ORDER 
[…] 
in the case of 
flightright GmbH, […] 
[…] Potsdam, 
Applicant and appellant on a point of law, 
[…] 
v 
American Airlines Inc., […] Fort Worth, Texas (United States of America), 
Defendant and respondent in the appeal on a point of law 
EN 
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[…] 
Subsequent to the oral hearing of 18 May 2021, the Tenth Civil Law Chamber of 
the Bundesgerichtshof (Federal Court of Justice, ‘BGH’) […] [formation of the 
court] 
made the following order: 
The proceedings are stayed. 
The following questions on the interpretation 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 L 46, p. 1 et seq.) 
and the Agreement on air transport between the Swiss Confederation and the 
European Community of 21 June 1999 (OJ 2002 L 114, p. 73) are referred to 
the Court of Justice of the European Union pursuant to Article 267 TFEU: 
1. If a travel agency combines connecting flights from different air 
carriers into one transport operation, charges the passenger an overall 
price and issues a single electronic ticket for the journey, do these 
qualify as direct connecting flights within the meaning of Article 2(h) 
of the Regulation, or does there also need to be a specific legal 
relationship between the operating air carriers? 
2. If there needs to be a specific legal relationship between the operating 
air carriers:  
Is it sufficient if two successive connecting flights, to be operated by 
the same air carrier, are combined in a reservation of the kind 
described in Question 1? 
3. If Question 2 is answered in the affirmative: 
Are Article 2 of the Agreement and the reference to Regulation (EC) 
No 261/2004 in the Annex to Decision No 1/2006 of the 
Community/Switzerland Air Transport Committee of [18 October 
2006] (OJ 2006 L 298, p. 23) to be interpreted as meaning that the 
Regulation also applies to passengers boarding a flight to a third 
country at an airport in Switzerland? 
Grounds: 
1 I. The applicant, acting under assigned rights, is taking action against the 
defendant for payment of compensation under Regulation (EC) No 261/2004 (‘the 
Regulation’ or ‘the Flight Compensation Regulation’). 
FLIGHTRIGHT 
 
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2 Via a travel agency, the assignor booked a flight from Stuttgart to Zurich with the 
air carrier Swiss and flights from Zurich to Philadelphia and from Philadelphia to 
Kansas City with the defendant for 25 July 2018. The first and second flights ran 
on schedule. On the last leg of the journey, the flight departed late. The assignor 
arrived in Kansas City with a delay of more than four hours. By its action, the 
applicant sought compensation of EUR 600. 
3 The Amtsgericht (Local Court) dismissed the action. The applicant’s appeal on the 
merits was unsuccessful. By the appeal on a point of law, leave for which was 
granted by the appeal court, the applicant continues to pursue the form of order 
sought at first instance. The defendant contests the appeal. 
4 II. The appeal court held that the defendant was not obliged to pay 
compensation. 
5 According to the case-law of the Court of Justice of the European Union, the 
Flight Compensation Regulation applies when a passenger boards a flight in an 
airport located in the territory of a Member State. According to the invoice 
submitted by the travel agency, in the present case, individual flights run by 
different air carriers were combined to reach the desired final destination. From 
the passenger’s point of view, it was a single booking. It was irrelevant whether he 
booked the journey to his final destination directly with the air carrier or through a 
travel agency. 
6 However, the defendant was not the operating air carrier of a flight departing from 
the territory of a Member State. There was nothing to suggest that the defendant 
had accepted a contractual undertaking to transport the assignor from Stuttgart to 
Kansas City. It did also not appear that the defendant had assumed responsibility 
for transport under a code-sharing agreement. Each individual air carrier was 
responsible for running their own connecting flights. The defendant was therefore 
liable only for transport on the two legs of the journey from Zurich to Philadelphia 
and from Philadelphia to Kansas City. 
7 III. The decision as to the appeal on a point of law hinges on the interpretation 
of Articles 2, 3 and 7 of the Flight Compensation Regulation and possibly of the 
Agreement on air transport between the Swiss Confederation and the European 
Community (‘the Agreement’). 
8 1. Pursuant to Article 3(1)(a), the Flight Compensation Regulation applies to 
passengers departing from an airport located in the territory of a Member State. 
9 In accordance with the case-law of the Court of Justice of the European Union, the 
applicability of the Flight Compensation Regulation to a flight with several 
connections, if that flight is to be regarded as a single unit, must be assessed with 
regard to the place of a flight’s initial departure and the place of its final 
destination (judgment of 31 May 2018, Wegener, C-537/17, […], paragraphs 25 
and 26; judgment of 11 July 2019, České aerolinie, C-502/18, […], paragraph 16; 
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order of 12 November 2020, KLM Royal Dutch Airlines, C-367/20, […], 
paragraph 19). 
10 Thus, the Flight Compensation Regulation is only applicable in the present case if 
the three flights booked by the assignor are to be considered as a single flight, or if 
the two flights operated by the defendant at least constitute a single unit and 
Article 3(1)(a) of the Regulation also applies to a flight boarded in Switzerland.  
11 2. Whether a flight is to be regarded as one unit is also relevant to the question of 
who can be held liable to pay compensation for a delay of three or more hours in 
reaching the final destination. 
12 In this regard, the Court of Justice has ruled that any operating air carrier which 
participated in the performance of at least one of those connecting flights is liable 
to pay that compensation, regardless of whether or not the flight which that carrier 
operated was the cause of the long delay to the passenger’s arrival at his or her 
final destination (judgment of 11 July 2019, České aerolinie, C-502/18, […], 
paragraphs 20-26; order of 12 November 2020, KLM Royal Dutch Airlines, 
C-367/20, […], paragraphs 28 and 29). 
13 The concept of ‘final destination’ is defined in Article 2(h) of the Regulation as 
being the destination on the ticket presented at the check-in counter or, in the case 
of directly connecting flights, the destination of the last flight (judgment of 
26 February 2013, Folkerts, C-11/11, […], paragraph 34). 
14 3. According to the case-law of the Court of Justice, the concept of ‘connecting 
flight’ must be understood as referring to two or more flights constituting a whole 
for the purposes of the right to compensation for passengers provided for in the 
Flight Compensation Regulation. 
15 That is the case when two or more flights were booked as a single unit. It is 
irrelevant in that regard whether the individual flights are effected using the same 
or different aircraft (judgment of 11 July 2019, České aerolinie, C-502/18, […], 
paragraphs 16 and 27; order of 30 April 2020, flightright, C-939/19, […], 
paragraph 18; order of 12 November 2020, KLM Royal Dutch Airlines, C-367/20, 
[…], paragraphs 19 and 29). This also applies if solely the first flight departed 
from an airport situated in the territory of a Member State, and the second 
departed from and arrived at airports situated in the territory of a third state 
(judgment of 31 May 2018, Wegener, C-537/17, […], paragraphs 19 and 20). 
16 4. Pursuant to Article 2(g) of the Regulation, ‘reservation’ means that the 
passenger has proof which indicates that the reservation has been accepted and 
registered by the air carrier or tour operator. Inter alia, said proof may take the 
form of a ticket within the meaning of Article 2(f) of the Regulation, which has 
been issued or authorised by the air carrier or its authorised agent. 
17 In the present case, neither of the two operating air carriers itself issued a ticket, 
but only the travel agency with whom the reservation was made. 
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18 The travel agency issued an invoice for an ‘agency agreement’ showing a standard 
‘subscription price’ for the flights in question and for the return flight from 
Kansas City to Stuttgart via Chicago and Heathrow. It is also clear from the 
invoice that the travel agency issued a single electronic ticket for the flights, the 
number of which – sometimes with additional figures – was duplicated on the 
boarding cards for the three flights in question. 
19 5. This raises the question of whether, if a travel agency combines connecting 
flights from different air carriers into one transport operation, charges the 
passenger an overall price and issues a single electronic ticket for the journey, this 
qualifies as a single reservation which combines a flight with one or more 
connecting flights to form a whole, or whether there also needs to be a specific 
legal relationship between the operating air carriers. 
20 a) According to the now settled case-law of the Court of Justice, a contract 
consisting of a single reservation for the entire journey establishes the obligation, 
for an air carrier, to carry a passenger from the place of departure to the final 
destination. 
21 The same applies when an operating air carrier with which the passengers 
concerned do not have contractual relations operates only the carriage on a flight 
which does not finish at the final destination (judgment of 7 March 2017, 
flightright and Others, C-274/16, […], paragraphs 71 and 72; order of 
13 February 2020, flightright, C-606/19, […], paragraph 29). Under the second 
sentence of Article 3(5) of the Flight Compensation Regulation, where an 
operating air carrier which has no contract with the passenger performs 
obligations under the Regulation, it shall be regarded as doing so on behalf of the 
person having a contract with that passenger. 
22 b) In the Chamber’s view, the case-law of the Court of Justice clarifies the 
fact that a valid reservation can also be made by third parties who have a direct or 
indirect contractual relationship with the operating air carrier and have been 
authorised by that carrier to accept reservations and issue tickets. 
23 The Court applied the principle that a flight with one or more connections, booked 
as a single unit, constitutes a whole for the purposes of the right to compensation 
for passengers provided for in the Flight Compensation Regulation, even where 
the booking was made through a tour operator (judgment of 30 April 2020, Air 
Nostrum, C-191/19, […], paragraph 10). The Court of Justice also held that, in the 
event of cancellation, the air carrier must in principle reimburse the full price paid 
by the passenger, if the reservation was made via an authorised intermediary and 
if the price includes a commission for the intermediary, unless the commission 
was fixed without the knowledge of the air carrier (judgment of 12 September 
2018, Harms, C-601/17, […], paragraphs 16-19). 
24 In the Chamber’s view, that is consistent with the aforementioned rule in 
Article 2(f) of the Regulation, according to which the necessary authorisation may 
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be given not only by the air carrier but also by its authorised agent, and with 
Article 2(g) of the Regulation, according to which it is sufficient for a reservation 
to be accepted and registered by a tour operator. 
25 c) By contrast, the Chamber considers that it has not been definitively 
clarified whether, if a reservation consisting of several connecting flights operated 
by different air carriers is made through a travel agency or another authorised 
third party, there also needs to be a specific legal relationship between those air 
carriers. 
26 aa) According to the case-law of the Court of Justice, in the context of a flight 
with one or more connections, an operating air carrier that has operated the first 
flight cannot take refuge behind a claim that the performance of a subsequent 
flight operated by another air carrier was imperfect (judgment of 11 July 2019, 
České aerolinie, C-502/18, […], paragraphs 27 and 28). Conversely, an operating 
air carrier which performed the final flight cannot take refuge behind the poor 
performance of a previous flight operated by a different air carrier (order of 
12 November 2020, KLM Royal Dutch Airlines, C-367/20, […], paragraphs 29 
and 30). 
27 It is the Chamber’s understanding that the decisions of the Court are based on the 
premise that there is at least one person who has given a contractual undertaking 
to transport the passenger from the place of departure of the first flight to the 
destination of the final flight, and thus under the second sentence of Article 3(5) 
of the Regulation, each operating air carrier performs obligations under the 
Regulation on behalf of this person. 
28 In both cases in which the Court of Justice held that an air carrier was liable for 
disruption on a connecting flight operated by another undertaking, the reservation 
had been made with the air carrier named in the action. The undertakings 
concerned were also linked to one another by way of a code-sharing agreement 
(judgment of 11 July 2019, České aerolinie, C-502/18, […], paragraphs 8 and 29; 
order of 12 November 2020, KLM Royal Dutch Airlines, C-367/20, […], 
paragraph 10). 
29 bb) In the present case, the only apparent connection between the two 
operating air carriers is that they allow third parties to act as intermediaries and to 
issue tickets which combine connecting flights operated by them. 
30 The Chamber cannot infer any definitive answer as regards this situation from the 
aforementioned case-law of the Court of Justice. 
31 (1) In the Chamber’s view, the principle set out in the second sentence of 
Article 3(5) of the Regulation can be relied on only where the operating air 
carriers express upon reservation that they jointly assume responsibility for 
transporting the passenger from the place of departure of the first flight to the 
destination of the final flight. 
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32 According to the case-law of the Court of Justice referred to above, this joint 
liability can be assumed if one of the air carriers involved accepts or confirms 
such a reservation and has entered into a code-sharing agreement with the other 
operating undertakings. In the Chamber’s view, similar situations arise if the air 
carriers involved have come together to form an alliance and advertise their close 
cooperation to potential customers, or if the air carriers involved are connected 
under company law, for example as parent and subsidiary companies. 
33 (2) In the Chamber’s view, it is both obvious and conclusive that air carriers 
allowing third parties to combine the flights they offer with flights of another 
undertaking can be seen as sufficient interaction between different air carriers to 
consider this combination of flights as a single reservation. However, on the basis 
of the existing case-law, it cannot be definitively concluded that there does not 
also need to be a specific legal relationship between the operating air carriers. 
34 As regards the right to reimbursement of the price of the flight in the event of 
cancellation, the Court of Justice has held that an air carrier must also cover any 
commission paid to an intermediary, unless the latter acted without the air 
carrier’s knowledge (judgment of 12 September 2018, Harms, C-601/17, […], 
paragraph 16 et seq.). As the Chamber understands, this does not provide a 
definitive answer to the question of what legal consequences arise when an 
intermediary makes a single reservation involving several air carriers. 
35 In another judgment, the Court of Justice applied the principle that an operating 
air carrier which has no contract with the passenger must be regarded in cases of 
doubt as fulfilling the freely consented obligations vis-à-vis the contracting 
partner of the passenger concerned, without clarifying in detail with whom the 
reservation was made or who confirmed the reservation (judgment of 13 February 
2020, flightright, C-606/19, […], paragraph 8). As the Chamber understands, it 
cannot be inferred conclusively from this that a reservation through a travel 
agency or another authorised third party is sufficient. It cannot be ruled out that 
the reservation in the original case on which that decision was based was 
confirmed by one of the operating air carriers, and that this fact was not 
mentioned in the decision simply because this point was not disputed. 
36 6. The Senate suggests that a reservation at a single price and the issuing of a 
single ticket for all legs of the journey should be considered sufficient to rely on 
the aforementioned principles concerning a single reservation. Thus, in the present 
case, the defendant would be required to pay compensation, because it undertook 
to transport the assignor from Stuttgart to Kansas City. 
37 As the Chamber has already pointed out in a previous decision (BGH, decision of 
19 July 2016, X ZR 138/15, […], paragraph 34), it is clear from Article 2(f) of the 
Regulation that a passenger can have a right to compensation against the operating 
air carrier even when that air carrier was not involved in the individual reservation 
or its confirmation but permitted an agent or a tour operator to accept and confirm 
such a reservation. The air carrier must in this case assume responsibility for the 
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booking confirmation issued by the agent or tour operator as if it were one of its 
own. 
38 b) In the Chamber’s view, this interpretation is supported by the level of 
protection provided by the Flight Compensation Regulation and the case-law of 
the Court of Justice of the European Union based thereon. 
39 Recitals 1 to 4 of the Flight Compensation Regulation state the objective of 
ensuring a high level of protection for passengers and of taking the requirements 
of consumer protection into account. The Court of Justice inferred from this 
principle that the provisions of the Regulation conferring rights on air passengers 
must be interpreted broadly (see, in this regard, judgment of 19 November 2009, 
Sturgeon and Others, C-402/07 and C-432/07, […], paragraph 45), while when 
terms appear in a provision which constitutes a derogation from a principle or, 
more specifically, from EU rules for the protection of consumers, they must be 
read so that that provision can be interpreted strictly (see, in this regard, judgment 
of 22 December 2008, Wallentin-Hermann, C-549/07, […], paragraph 17). 
40 Upholding a right to compensation is also consistent with the previously 
expressed view of the Court of Justice on responsibility for performance 
obligations assumed under the booking confirmation (BGH, order of 19 July 
2016, X ZR 138/15, […], paragraph 38 et seq.). 
41 In the case where an air carrier with which two successive flights have been 
booked refuses carriage on the second flight on the assumption that the passenger 
can no longer catch this flight due to the delay in the arrival of the first flight, the 
Court of Justice has previously upheld a right to compensation. The Court of 
Justice has regarded as crucial in this regard the fact that the right should 
compensate for the inconvenience arising on account of an irreversible loss of 
time of three hours or more, and that an operating air carrier must in any case be 
responsible for this inconvenience when it is established that the loss of time is 
attributable to it – either because it is responsible for the delay to the first flight 
operated by it, or because it mistakenly assumed that the passengers concerned 
would not be able to present themselves at the gate in time for the connecting 
flight, or because it sold tickets for successive flights for which the time available 
to catch the connecting flight was insufficient (judgment of 4 October 2012, 
Rodríguez Cachafeiro and Martínez-Reboredo Varela-Villamor, C-321/11, […], 
paragraph 34). 
42 From the perspective of the passengers whom the right to compensation is 
intended to protect, a comparable situation exists where the air carrier did not 
issue or authorise the tickets for successive flights itself, but rather permitted a 
tour operator to issue such tickets and thereby also to combine flights which are 
operated by different air carriers. 
43 d) This does not just apply to cases where the individual flights are operated 
by air carriers that have entered into a code-sharing agreement (see, in this regard, 
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Opinion of Advocate General Tanchev of 6 June 2018 in Case C-186/17, […], 
paragraph 41) or have a legal relationship of another kind. 
44 As stated above, the authorisation required by Article 2(f) of the Regulation may 
be given not only by the air carrier but also by its authorised agent. Where such an 
agent acts on behalf of several providers and offers air travel in the form of a 
single reservation for multiple connecting flights operated by different air carriers, 
it seems logical to protect the passenger’s faith that the individual air carriers are 
not responsible solely for transport on the respective flight operated by them, but 
jointly for transport from the journey’s place of departure to its final destination. 
45 IV. If a combination of individual flights by a travel agency is insufficient to 
create a link between connecting flights run by different air carriers, the decision 
in the present case hinges on whether the two flights operated by the defendant at 
least can be considered as a whole and whether the fact that this combined flight 
departed from Switzerland is sufficient for the Regulation to apply. 
46 1. As regards the two flights from Zurich to Kansas City via Philadelphia, the 
Chamber understands in the present case that there is already a sufficient link, as 
both flights were to be operated by the defendant and the latter allowed the travel 
agency to make combined bookings of this kind. The purpose of the second 
question referred for a preliminary ruling is to determine whether that 
understanding is correct. 
47 2. The flight consisting of those two legs did not depart from the territory of a 
Member State. Therefore, if applicable, the further question arises as to whether 
the Flight Compensation Regulation applies where passengers depart on a flight 
from Switzerland. 
48 a) Under Article 2 of the Agreement, the rules set out in its Annex apply in so 
far as they relate to air transport or directly related matters as listed in the Annex. 
49 According to point 7 of the Annex, these rules include the Flight Compensation 
Regulation. This reference was inserted by Decision No 1/2006 (OJ 2006 L 298, 
p. 23) of the Air Transport Committee established under Article 21 of the 
Agreement, which is authorised to make changes to the Annex in the light of 
newly adopted legislation pursuant to Article 23(4) of the Agreement. 
50 The second indent of the introduction to the Annex provides that where any of the 
acts listed in the Annex contain references to Member States of the European 
Union, the references are, for the purpose of the Agreement, to be understood to 
apply equally to Switzerland. 
51 In an earlier decision (BGH, decision of 9 April 2013, X ZR 105/12, […], 
paragraph 22), the Chamber inclined towards the view that, on the basis of these 
provisions, such flights departing from Switzerland and having a destination in a 
third country also fall within the scope of the Regulation (see also Landgericht 
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Korneuburg (Regional Court, Korneuburg, Germany) judgment of 15 July 2014, 
21 R 106/14g). That assessment has not changed. 
52 As the Chamber pointed out in that decision, such an interpretation would be 
consistent not only with the wording of the Agreement but also with the objective, 
set out in its preamble, of aligning the rules relating to air transport in Europe, 
including the territory of Switzerland. 
53 Thereunder, air transport undertakings in Switzerland can and must operate under 
the same conditions as those in the Member States of the European Union. 
Consumers and customers of air transport undertakings should find the same 
quality standards in Switzerland and accordingly be able to enforce the same 
rights against these undertakings in Switzerland as in the Member States of the 
European Union, and the air transport undertakings for their part should be subject 
to the same conditions of competition. 
54 It would be difficult to reconcile this with a situation where the Flight 
Compensation Regulation was applicable only to passengers who embarked on a 
flight in the territory of Switzerland to an airport in the territory of a Member 
State of the European Union. This is because, pursuant to Article 3(1)(a) of the 
Regulation, the Regulation is also applicable to passengers who fly to a third 
country from an airport in the European Union. 
55 c) By contrast, the Zivilgericht des Kantons Basel-Stadt (Civil Court for the 
Canton of Basel-Stadt, Switzerland) took the view that the Flight Compensation 
Regulation only applied to passengers boarding a flight in Switzerland if their 
destination was a Member State of the European Union (Zivilgericht Basel-Stadt 
(Civil Court, Basel-Stadt), decision of 11 March 2011, […]; decision of 20 June 
2011, […]; decision of 15 May 2012, […]). 
56 That is why the Chamber has referred the question to the Court of Justice for a 
preliminary ruling. 
57 d) At this initial stage, nothing has changed, 
58 Thus far it appears that the Schweizer Bundesgericht (Federal Supreme Court, 
Switzerland) has not yet ruled on this issue […] [reference to national literature]. 
The Court of Justice was unable to respond to the previous question referred by 
the Chamber because that case was resolved in another way. 
[…] [Names of the judges who took part in the deliberations] 
Previous instances: 
AG Nürtingen (Local Court, Nürtingen, Germany), decision of 14 March 2019 – 
12 C 96/19 – 
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LG Stuttgart (Regional Court, Stuttgart, Germany), decision of 12 December 
2019 – 5 S 93/19 –