Order — ECLI:EU:C:2018:997
Date: 2018-12-06
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Order of the Court (Eighth Chamber), 6 December 2018 Transport — Air transport — Regulation No 261/2004 — Compensation and assistance to passengers — Air carrier — Concept — Undertaking not yet possessing an operating licence at the date scheduled for the performance of a flight — Not included — Right to compensation for passengers — No right to compensation — Limits [(European Parliament and Council Regulation No 261/2004, Arts 2(a), 3(5), 5(1)(c) and 7(1); Council Directive 90/314, Art. 5(1)) Article 3(5) 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, read in conjunction with Article 2(a) thereof, must be interpreted as meaning that an undertaking, such as that at issue in the main proceedings, which had lodged an application for an operating licence that was not issued to it at the time for the performance of scheduled flights cannot fall within the scope of that regulation, so that the passengers concerned have no right to compensation under Article 5(1)(c) and Article 7(1) of the regulation. The non-performance of flights by that undertaking, in circumstances such as those in the main proceedings, cannot, therefore, result in the effects of a cancellation under Article 5(1)(c) of Regulation No 261/2004, read in conjunction with Article 7(1) thereof. In view of the particular circumstances of the main proceedings, it should be noted that the fact that Article 3(5) of Regulation No 261/2004, read in conjunction with Article 2(a) thereof, prevents the passengers concerned from receiving compensation under that regulation does not prevent them from seeking reparation in other ways, including — as provided for in Article 3(6) of the same regulation — under Directive 90/314 which, in particular, provides, in Article 5(1) thereof, that Member States shall take the necessary steps to ensure that the organiser and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organiser and/or retailer or by other suppliers of services without prejudice to the right of the organiser and/or retailer to pursue those other suppliers of services. (see paras 25, 26, 28, operative part)