Judgment;Summary — ECLI:EU:C:2025:21
Date: 2025-01-16
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-516/23 – 1 
Case C-516/23 
Request for a preliminary ruling 
Date lodged: 
10 August 2023 
Referring court: 
Landgericht Frankfurt am Main (Germany) 
Date of the decision to refer: 
8 August 2023 
Appellants: 
NW 
YS 
Respondent: 
Qatar Airways 
  
Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, 
Germany) 
24th Civil Chamber 
[…] 
Order 
In the case of 
1. NW […], 30989 Gehrden 
2. YS […], 30989 Gehrden 
- appellants - 
EN 
REQUEST FOR A PRELIMINARY RULING OF 8. 8. 2023 – CASE C-516/23 
 
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[…] 
v 
Qatar Airways […] 60327 Frankfurt am Main 
- respondent - 
[…] 
the 24th Civil Chamber of the Regional Court, Frankfurt am Main  […], issued the 
following order on 8 August 2023: 
The proceedings remain stayed. 
The following questions on the interpretation of EU law are referred to 
the Court of Justice of the European Union pursuant to Article 267 
TFEU: 
1. Is Regulation (EC) No 261/2004 of the European Parliament and 
of the Council of 11 February 2004 to be interpreted as meaning that 
the passenger travels free of charge under the first alternative in [the 
first sentence of] Article 3(3) of that regulation in the case where he or 
she is required to pay only fees and aviation taxes for the flight ticket? 
2. If the first question is answered in the negative: 
Is Regulation (EC) No 261/2004 of the European Parliament and of the 
Council of 11 February 2004 to be interpreted as meaning that it does 
not concern a fare available (indirectly) to the public within the 
meaning of the second alternative in [the first sentence of] Article 3(3) of 
that regulation in the case where the flight was booked as part of a 
special offer provided by an air carrier for a limited period and in 
limited quantity, and which was available only to a certain group of 
professions? 
3. If the second question is also answered in the negative and 
Regulation (EC) No 261/2004 of the European Parliament and of the 
Council of 11 February 2004 is regarded as applicable: 
(a) Is Article 8(1)(c) of that regulation to be interpreted as meaning 
that there must be a temporal link between, on the one hand, the 
original booked and cancelled flight and, on the other, the desired 
re-routing at a later date? 
(b) How should that temporal link, if necessary, be defined? 
Grounds 
QATAR AIRWAYS 
 
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The appellants seek re-routing under Article 8(1)(c) of Regulation (EC) 
No 261/2004 of the European Parliament and of the Council of 11 February 2004 
(‘the Air Passenger Rights Regulation’). 
The appellants had a paid and confirmed booking with the respondent as an 
operating air carrier […] on the route from Frankfurt am Main via Doha to 
Denpasar, as well as corresponding return flights. The booking was made on 
5 August 2020. The respondent cancelled the flights on 13 September 2020. The 
respondent did not fly to Denpasar until spring 2022. By email of 8 August 2022, 
setting a deadline of 18 August 2022, the appellants requested re-routing with the 
respondent on the same route on 20 October 2022 (outbound flight) and on 
7 November 2022 (return flight). After that deadline had passed without a 
satisfactory outcome, the appellants booked the flights using 140 000 miles in the 
American Airlines Programm and paying EUR 394.62. On the date of booking, 
the market price of the flights amounted to EUR 4 276.36. 
The appellants booked the flight tickets as part of a strictly time-limited special 
offer provided by the respondent, called ‘MEDICS’. That special offer was 
addressed only to a certain group of professionals (doctors). The appellants were 
required to pay only taxes and fees for the flights. 
The respondent contends that the Air Passenger Rights Regulation, under 
Article 3(3) thereof, is not applicable. It argues that the appellant[s] booked the 
tickets as part of a strictly time-limited special offer provided by the respondent, 
called ‘MEDICS’. According to the respondent, the appellant[s] were required to 
pay only fees and aviation taxes, and therefore acquired the tickets free of charge. 
First of all, the outcome of the action depends essentially on whether the Air 
Passenger Rights Regulation is applicable in the present case. 
The appellants purchased the flight ticket[s] as part of a special offer provided by 
the respondent. The appellants had to pay only the aviation taxes and fees. In that 
context, the referring court is first of all uncertain whether, in such a case, the 
passenger travels ‘free of charge’ within the meaning of the first alternative in [the 
first sentence of] Article 3(3) of the Air Passenger Rights Regulation. 
If the first question is answered in the negative, that is to say, the passenger does 
not travel free of charge in the case where he or she is required to pay only taxes 
and fees, the outcome of the appeal will then turn on the question of whether the 
‘MEDICS’ special offer involves a reduced fare not available directly or indirectly 
to the public. 
The flights at issue were booked as part of that special offer provided by the 
respondent for a limited time, which was available only to a group or groups of 
certain professions. 
In its judgment of 21 September 2021 (X ZR 79/20), the Bundesgerichtshof 
(Federal Court of Justice, Germany) held that a discounted fare granted by an air 
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carrier for business trips made by employees of an undertaking which had 
concluded a corresponding framework agreement is available to the public within 
the meaning of the first sentence of Article 3(3) of the Air Passenger Rights 
Regulation. This ruling of the Federal Court of Justice is based on the assumption 
that a fare is available to the public in the case where it is aimed at an indefinite 
number of persons who do not have a special relationship with the air carrier 
going beyond a (potential) customer relationship. In its view, a special 
relationship in that sense exists only where the discount was not granted solely for 
the purposes of increasing sales, promotion or customer loyalty, but rather in view 
of a cooperative or other close relationship. It is generally understood that the 
notion of ‘the public’ denotes an indefinite number of persons who are not 
connected to each other in any particular way. The Federal Court of Justice took 
the view that, according to those criteria, a fare is available to the public even 
where not every potential customer would be able to take advantage of it. Rather, 
what counts is whether the number of persons in question can be determined with 
sufficient precision and whether those persons are sufficiently connected to each 
other and can be delimited as a closed category vis-à-vis the public. In the case of 
the corporate fare, the Federal Court of Justice held that there is no sufficiently 
close connection between the beneficiaries in the case where, although the offers 
are not available to everyone, the only thing that the category of beneficiaries has 
in common is that they fulfil the specified criteria. 
The situation in the present case is similar. The special offer was not open to 
everyone, but only to a category of persons or professions defined by the 
respondent. The court is thus faced with the question whether the case-law of the 
Federal Court of Justice must also be applied to the present case, such that it 
concerns a fare accessible to the public, thereby making application of the Air 
Passenger Rights Regulation possible. 
In the present case, the referring court considers that the respondent’s special offer 
does not constitute either a frequent flyer programme or a commercial programme 
within the meaning of the second sentence of Article 3(3) of the Air Passenger 
Rights Regulation. 
If the first and second questions raised above are answered in the negative, that is 
to say, the Air Passenger Rights Regulation is applicable, then the outcome will 
further depend on whether the re-routing under Article 8(1)(c) of the Air 
Passenger Rights Regulation must have a temporal link to the original booked 
journey. 
According to the case-law of the Oberlandesgericht Köln (Higher Regional Court, 
Cologne) (OLG Köln, judgment of 26 February 2021 – 6 U 127720; OLG Köln, 
judgment of 6 May 2022 – 6 U 219/21), in the event of cancellation of a flight by 
the operating air carrier, the passenger may in principle, under Article 5(1)(a) and 
Article 8(1)(c) of the Air Passenger Rights Regulation, request re-routing, under 
comparable transport conditions, to his or her final destination at a later date (that 
is, later than the earliest opportunity; see Article 8(1)(b) of the Air Passenger 
QATAR AIRWAYS 
 
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Rights Regulation) at the passenger’s convenience, subject to availability of seats. 
The interpretation of the provision demonstrated, in its view, that the re-booking 
must indeed be provided free of charge, but that there must also be a temporal link 
to the original journey. That court observes that the wording of Article 8(1)(b) of 
the Air Passenger Rights Regulation, namely ‘re-routing, under comparable 
transport conditions, to [the passenger’s] final destination at the earliest 
opportunity’, establishes a clear temporal connection with the passenger’s original 
travel plan. It takes the view that it is therefore logical to give a corresponding 
interpretation to Article 8(1)(c) of the Air Passenger Rights Regulation, namely 
‘re-routing, under comparable transport conditions, to [the passenger’s] final 
destination at a later date at the passenger’s convenience, subject to availability of 
seats’. The Higher Regional Court, Cologne, refers in this regard to the spirit and 
purpose of the provision and argues that the legislative framework of the Air 
Passenger Rights Regulation is aimed at ensuring protection for passengers only 
during the respective journey. In its view, the provisions of the Air Passenger 
Rights Regulation do not grant the passenger a general right to free re-booking 
without any link to the planned journey, for instance in respect of a flight after the 
original planned journey, at a particularly expensive travel time. Accordingly, 
Article 8(1) of the Air Passenger Rights Regulation constitutes a kind of warranty 
claim in the event that the contract is not performed. It considers that, at the same 
time, Article 8(1)(a) of the Air Passenger Rights Regulation ultimately establishes 
ex nunc a right to rescind the contract in so far as it has not yet been performed or 
its purpose has been frustrated. Article 8(1)(b) and (c) of the Air Passenger Rights 
Regulation accordingly constitutes a claim for subsequent performance which is 
inherently linked to the content of the air transport contract. It observes that such a 
claim is in principle linked to the original planned journey. According to that 
court, the question whether the necessary link in that respect is maintained 
depends on the circumstances of the planned journey, with the claim to re-routing 
normally having to be classified under German law as a relative fixed-date 
transaction. While it is not impossible that, where the time of performance has not 
been complied with, the flight may be provided subsequently, the party entitled to 
demand performance has a right to withdraw from the contract. In that court’s 
view, compliance with the time of performance is nonetheless so fundamental that 
the transaction must depend entirely on the timeliness of the performance. The 
question of when a delayed service (arrival) no longer makes sense for the 
passenger and no longer constitutes performance, thereby becoming impossible, is 
to be determined on the basis of the passenger’s original travel plan. That court 
considers that no other solution is apparent, moreover, from the Commission’s 
non-binding interpretative guidelines on the Air Passenger Rights Regulation (OJ 
2016 C 214, p. 5) and the supplement to those guidelines also relating to Covid-19 
(OJ 2020 C 89 I, p. 1). That court notes that the Commission is not of the clear 
opinion that the claim arising from Article 8(1)(c) of the Air Passenger Rights 
Regulation could even be asserted years later in respect of a wholly different 
journey. 
Compensation for denied re-routing under Article 8(1)(c) of the Air Passenger 
Rights Regulation would therefore be precluded in the present case. That said, the 
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court regards it as uncertain whether the wording of the provision can be 
interpreted as meaning that there must be a temporal link between the original 
flight and the re-routing, as an unwritten element. In any event, no support for 
such a position can be found in the wording of the provision, for which reason this 
question must now be referred to the Court of Justice for interpretation. 
[…]