Judgment;Summary — ECLI:EU:C:2020:339
Date: 2020-04-30
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation  C-191/19 — 1 
Case C-191/19 
Request for a preliminary ruling 
Date lodged: 
27 February 2019 
Referring court: 
Landgericht Frankfurt am Main (Germany) 
Date of the decision to refer: 
20 February 2019 
Applicant and appellant: 
OI 
Defendant and respondent: 
Air Nostrum Lineas Aereas del Mediterraneo SA 
  
Landgericht Frankfurt am Main 
24th Civil Chamber 
[...] 
Order 
In the case of 
OI [...] 
applicant and appellant 
[...] 
v 
EN 
REQUEST FOR A PRELIMINARY RULING OF 20. 2. 2019 — CASE C-191/19 
 
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Air Nostrum Lineas Aereas del Mediterraneo SA, ... Valencia, 
defendant and respondent 
[...] 
At the hearing on 27 November 2018, the 24th Civil Chamber of the Landgericht 
Frankfurt am Main […] made the following order: 
I. The following questions on the interpretation of Articles 4(3), 5(1)(c)(iii) 
and 7(1)(b) of Regulation (EC) No 261/2004 of [Or. 2] 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) are referred to the Court of Justice of the 
European Union for a preliminary ruling: 
1. Does the change in reservation of a passenger at check-in, who has a 
confirmed reservation on a specific flight, to a later flight against his will 
constitute denied boarding within the meaning of Article 4(3) of the Air 
Passenger Rights Regulation, if the flight on which the passenger had a 
confirmed reservation is then carried out? 
2. If Question 1 is answered in the affirmative: Does Article 5(1)(c)(iii) 
of the Air Passenger Rights Regulation apply by analogy in the event of 
denied boarding within the meaning of Article 4(3) of the Air Passenger 
Rights Regulation? 
II.  The appeal proceedings are stayed. [Or. 3] 
Grounds 
The applicant had confirmed reservations with the defendant on flight IB 8505, to 
be carried out by the defendant, on 3 October 2015 from Jerez (scheduled time of 
departure 13.35) to Madrid (scheduled time of arrival 14.45) and on the 
connecting flight AB 5325 on 3 October 2015 from Madrid (scheduled time of 
departure 20.00) to Frankfurt (scheduled time of arrival: 22.40). 
The applicant’s reservation was changed from flight IB 8505 to flight IB 8507. 
Flight IB 8507 departed from Jerez at approximately 17.55 and landed in Madrid 
at approximately 19.05. The connecting flight AB 5325 departed on schedule at 
20.00, with the result that the applicant arrived in Frankfurt without being 
delayed, but rather ten minutes ahead of schedule. 
The applicant, after a partial withdrawal in the amount of EUR 200, claimed 
compensation of EUR 400 under the Air Passenger Rights Regulation at first 
instance before the Local Court. 
AIR NOSTRUM 
 
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Anonymised version 
The Local Court dismissed the claim on the ground that the applicant had reached 
her final destination within the time limit laid down by Article 5(1)(c)(iii) of the 
Air Passenger Rights Regulation. 
The applicant appealed against that decision, further claiming that she should 
receive a payment of EUR 200. The applicant claims, in essence, that on the basis 
of the Air Passenger Rights Regulation she is entitled to compensation in the 
amount of EUR 200, as she was denied boarding. That right, as in the case of 
cancellation provided for in Article 5(1)(c)(iii) of the Air Passenger Rights 
Regulation, cannot be restricted. 
The decision of the referring court of appeal is contingent on the answer to the 
questions referred to the Court of Justice of the European Union for a preliminary 
ruling. 
The court of appeal begins by considering that rights to compensation arise only if 
the present situation is that of denied boarding as a result of the change in 
reservation. It is not a cancellation — the only other interruption to service 
covered by the Air Passenger Rights Regulation — because the flight that the 
applicant was originally due to board (IB 8505) was carried out and the flight 
schedule was not entirely abandoned. Accordingly rights to compensation [Or. 4] 
under the direct application of Article 5(1)(c)(iii) of the Air Passenger Rights 
Regulation are excluded in these circumstances. 
This is the subject of the first question referred for a preliminary ruling. The court 
of appeal assumes that there are good arguments for the change in reservation of a 
passenger to another flight against her will to come within the scope of 
Article 4(3) of the Air Passenger Rights Regulation where the original flight is 
subsequently carried out. Moreover, it is likely that an operating air carrier could 
circumvent the legal consequences of the Air Passenger Rights Regulation by 
changing a passenger’s reservation to later flight capacities, resulting in a degree 
of latitude over the passenger’s rights being assigned to it, which would run 
counter to the objectives of the Air Passenger Rights Regulation (the protection of 
passengers in particular). This also corresponds to the predominant view in the 
German case-law and doctrine [...] . 
If the answer to the first question referred for a preliminary ruling is in the 
affirmative, the question whether Article 5(1)(c)(iii) of the Air Passenger Rights 
Regulation applies by analogy in the event of denied boarding within the meaning 
of Article 4(3) of the Air Passenger Rights Regulation is relevant to the decision. 
As it is, this is subject to factual conditions. This is the subject of the second 
question referred for a preliminary ruling. 
The Bundesgerichtshof (Federal Court of Justice) has expressly left this question 
open to date [...] . 
The court of appeal is of the view that there are good arguments for such an 
analogy, based decisively on the meaning and purpose of the Air Passenger Rights 
REQUEST FOR A PRELIMINARY RULING OF 20. 2. 2019 — CASE C-191/19 
 
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Anonymised version 
Regulation together with the right to compensation under Article 7 and the 
exclusion from liability under Article 5(1)(c) of that regulation. 
The right to compensation is intended primarily to reduce, by means of financial 
compensation, any trouble and inconvenience, as a result of the loss of time and 
damage suffered, due to a given interruption to service covered by the regulation. 
In those circumstances, the purpose of Article 5(1)(c) of the Air Passenger Rights 
Regulation must be interpreted, as intended by the EU legislature, that, in the 
situations covered by that provision, passengers would not be troubled or 
inconvenienced in a way [Or. 5] that would require financial compensation to be 
awarded. Passengers must accept without compensation that, in such situations, 
they are (immaterially) affected in the same way, because the transport required of 
the operating air carrier on the strength of the confirmed reservation was not 
operated as booked. Nor does the fact that, on the basis of the Air Passenger 
Rights Regulation, (immaterially) affected passengers will not be awarded 
financial compensation raise any concerns from the point of view of consumer 
protection in general and passenger protection in particular, since the regulation is 
intended to protect passengers’ minimum rights alone. 
The regulatory context created by Articles 5(1)(c) and 7 of the Air Passenger 
Rights Regulation could be applied to cases of denied boarding. From the point of 
view of a passenger, it makes no material difference whether or not denied 
boarding or cancellation is the cause of him not being able to take the flight. In 
both cases, the passenger is affected because he was not able to board as booked. 
This is also made clear by the fact that the difference between denied boarding 
and cancellation hinges on whether the flight in question is still carried out or the 
flight schedule was entirely abandoned. However, whether a single passenger is 
denied boarding within the meaning of Article 4(3) of the Air Passenger Rights 
Regulation, although the flight schedule is otherwise maintained, or whether a 
single passenger is denied boarding within the meaning of Article 5 of the Air 
Passenger Rights Regulation, because the flight schedule has been abandoned, the 
type and degree of trouble and inconvenience caused to the passenger is 
unchanged. 
That view is also borne out by the fact that such trouble and inconvenience is then 
caused immediately to the passenger when it is explained to him that he will not 
be able to board as booked. Passengers often learn only at a later stage whether the 
reason they were not able to board was denied boarding or cancellation. It is 
therefore not immediately apparent to a passenger when he is affected whether he 
was unable to board as a result of a flight schedule being abandoned by an air 
carrier. 
The analogy cannot be discarded on the basis of the argument that the award of 
compensation in the event of denied boarding must have, at least [Or. 6] in some 
rudimentary form, the character of a penalty, since a claim for compensation is not 
a claim for punitive damages. 
AIR NOSTRUM 
 
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[...] 
Frankfurt am Main, 20 February 2019 
[...]