Opinion of the Advocate General — ECLI:EU:C:2021:761
Date: 2021-09-23
Language of the case: German
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation  C-395/20 – 1 
Case C-395/20 
Request for a preliminary ruling 
Date lodged: 
19 August 2020 
Referring court: 
Landgericht Düsseldorf (Germany) 
Date of the decision to refer: 
3 August 2020 
Applicants and appellants: 
EP 
GM 
Defendant and respondent: 
Corendon Airlines Turistik Hava Tasimacilik A.S. 
  
[…] 
[…] Delivered on 3 August 2020 
 […] 
Landgericht Düsseldorf 
(Regional Court, Düsseldorf) 
Order 
In the case of 
1. EP, […] 45889 Gelsenkirchen, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 3. 8. 2020 – CASE C-395/20 
 
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Anonymised version 
2. GM, […] 45889 Gelsenkirchen, 
applicants and appellants, 
[…] 
v 
Corendon Airlines Turistik Hava Tasimacilik A.S., […] 07200 Antalya, Turkey, 
[…] defendant and respondent, 
[…] 
the 22nd Civil Chamber of the Landgericht Düsseldorf (Regional Court, 
Düsseldorf) 
[…] 
has made the following order: 
The proceedings are stayed. 
The following questions on the interpretation of EU law are referred to the Court 
of Justice of the European Union under Article 267 TFEU: [Or. 2] 
1. Is a flight cancelled within the meaning of Articles 2(l) and 5(1) 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 2004 L 46, p. 1 et seq.) where the operating air carrier 
postpones a flight booked as part of a package holiday and scheduled to 
depart at 13:20 (LT) until 16:10 (LT) on the same day?  
2. Does the notification nine days prior to the start of the trip of the 
postponement of a flight from 13:20 (LT) to 16:10 (LT) on the same day 
constitute an offer of re-routing within the meaning of Article 5(1)(c)(ii) 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 2004 L 46, p. 1 et seq.), and, if so, must that offer meet the 
requirements of Articles 5(1)(a) and 8(1) 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 2004 L 46, p. 1 et seq.)? 
Grounds 
CORENDON AIRLINES 
 
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Anonymised version 
I. 
The applicants booked a package holiday to Antalya, Turkey, via the Check24 
price comparison portal. They received a confirmed booking for the flight from 
Düsseldorf to Antalya on 18 May 2019 (XC 6408) with the defendant air carrier. 
The scheduled departure time was 13:20 (LT) and the scheduled arrival time was 
17:50 (LT). The defendant air carrier postponed the flight, under the same flight 
number, to 16:10 (LT) on the same day, so that the scheduled [Or. 3] arrival time 
was now 20:40 (LT). The flight was subsequently delayed and did not take off 
until 17:02 (LT), landing at 21:30 (LT). 
The applicants claimed compensation from the defendant air carrier, in the amount 
of EUR 400.00 each, under Articles 5(1)(c) and 7(1)(b) 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 (‘the Air Passenger Rights Regulation’). 
The Amtsgericht (Local Court) dismissed the action and held that boarding had 
not been denied within the meaning of Articles 2(j) and 4(3) of the Air Passenger 
Rights Regulation because, although the flight times had changed, the original 
flight planning had not been abandoned and the applicants had been able to take 
the rescheduled flight. The Amtsgericht (Local Court) further held that the 
question as to whether the change of flight time constituted a cancellation or a 
long delay could be left open, since it was common ground that the applicants had 
in any event been informed of the change of flight time within the period of 
between two weeks and seven days before the scheduled time of departure laid 
down in Article 5(1)(c)(ii) of the Air Passenger Rights Regulation. Finally, the 
question as to whether the defendant had adequately informed the applicants of 
their rights under Article 8 of the Air Passenger Rights Regulation could also be 
left open, since any infringement of the obligation to provide such information 
would not give rise to a right to compensation under Article 7(1) of the Air 
Passenger Rights Regulation. 
II. 
The foregoing does not stand up to legal scrutiny if the postponement of the flight 
by almost three hours amounts to its non-operation within the meaning of 
Article 2(l) of the Air Passenger Rights Regulation and the notification of its 
postponement does not constitute an offer of re-routing as provided for in 
Article 8 of the Air Passenger Rights Regulation. 
If the flight had been cancelled because of the postponement, the applicants might 
have a right to compensation under Articles 5(1)(c) and 7(1)(b) of the Air 
Passenger Rights Regulation in the amount of EUR 400.00 each if the passengers 
were not informed [of any such cancellation] in good time in accordance with 
Article 5(1)(c)(ii) of the Air Passenger Rights Regulation and were not offered re-
REQUEST FOR A PRELIMINARY RULING OF 3. 8. 2020 – CASE C-395/20 
 
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routing within the meaning of that provision. The defendant air carrier has not 
invoked extraordinary circumstances within the meaning of Article 5(3) of the Air 
Passenger Rights Regulation. [Or. 4] 
III. 
The success of the applicants’ appeal depends crucially on whether the 
postponement of the flight by three hours amounts to its non-operation within the 
meaning of Article 2(l) of the Air Passenger Rights Regulation. It further depends 
on whether the notification of the flight’s postponement constitutes an offer of re-
routing within the meaning of Article 8(1)(b) or (c) of the Air Passenger Rights 
Regulation. 
1. 
According to the legal definition contained in Article 2(l) of the Air Passenger 
Rights Regulation, a ‘cancellation’ means the non-operation of a flight which was 
previously planned and on which at least one place was reserved. The ‘non-
operation’ of a scheduled flight must be distinguished from a ‘delay’ to that flight 
and is characterised by the fact that the planning for the original flight is 
abandoned (see the judgment of the ECJ of 19 November 2009 – C-402/07, 
C-432/07 Sturgeon and Others v Condor and Böck and Others v Air France SA, 
[…] paragraph 33 et seq.). The Court of Justice has not as yet clarified whether 
the planning for a flight must also be assumed to have been abandoned in the case 
where the flight is postponed by three hours.  
2. 
Article 5(1)(c)(ii) of the Air Passenger Rights Regulation requires that passengers 
be informed of the cancellation of their flight within a period of between two 
weeks and seven days before the scheduled time of departure. Article 5(1)(c)(ii) of 
the Air Passenger Rights Regulation further requires that passengers be ‘offered 
re-routing’ at the same time as they are provided with the aforementioned 
information. The question, not as yet clarified by the Court of Justice, is whether 
the mere notification of changed flight times is to be regarded as such an 
‘offer[…] [of] re-routing’ within the meaning of Article 5(1)(c)(ii) of the Air 
Passenger Rights Regulation. Neither has it yet been clarified whether it is 
sufficient in this regard that the passenger is in any event offered re-routing in the 
form of the changed flight times, or whether that offer must in addition meet the 
requirements of Articles 5(1)(a) and 8(1) of the Air Passenger Rights Regulation, 
which is to say that the passenger must be given the opportunity to choose from a 
number of different options. 
IV 
[…]