Information;Order — ECLI:EU:C:2021:26
Date: 2021-01-14
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Right of establishment;Consumer protection;Approximation of laws;Freedom to provide services;Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

Translation  C-264/20 — 1 
Case C-264/20 
Request for a preliminary ruling 
Date lodged: 
15 June 2020 
Referring court: 
Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) 
Date of the decision to refer: 
28 April 2020 
Claimant: 
Airhelp Limited 
Defendant: 
Austrian Airlines AG 
  
REPUBLIC OF AUSTRIA 
Landesgericht Korneuburg 
The Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), sitting as 
an appellate court […], in the case of the claimant, Airhelp Limited, Central 
Hong Kong, […], […] versus the defendant, Austrian Airlines AG, 1300 Vienna 
Airport, […] concerning EUR 2,400 including costs and expenses, on appeal by 
the defendant against the judgment of the Bezirksgericht Schwechat (District 
Court, Schwechat, Austria) of 16 December 2019 (correct date: 24 October 2019), 
[…] has made the following  
O r d e r: 
[I] The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
[1] Must Article 5(3) 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, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 28. 4. 2020 — CASE C-264/20 
 
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be interpreted as meaning that an exceptional circumstance exists where the 
cancellation of the flight is due to the fact that another aircraft is pushed 
back from an opposite gate and in doing so damages an elevator of the 
aircraft intended for the [Or. 2] subsequently cancelled flight? 
[2] Must Articles 5(3) and 7 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, 
be interpreted as meaning that the operating air carrier arguing exceptional 
circumstances as the cause for cancellation can rely on the ground for 
exoneration in Article 5(3) of the Regulation only if it can also prove that the 
consequences of the cancellation for the individual passenger could not have 
been prevented by re-booking onto alternative transport? 
[3] Must a re-booking referred to under question 2 meet specific temporal or 
qualitative criteria, in particular the criteria set out in Article 5(1)(c)(iii) or in 
Article 8(1)(b) and (c) of the Regulation? 
[II] The appeal proceedings are stayed pending delivery of the preliminary ruling 
from the Court of Justice of the European Union […]. 
G r o u n d s: 
The passengers M***** S*****, S***** S*****, A***** S***** and Daniel 
S***** had a confirmed booking for flight OS 090 from (EWR) to Vienna (VIE), 
operated by the defendant, on 18 May 2018. The scheduled departure time was 
17:50 on 18 May 2018, and the scheduled arrival time was 08:25 on 19 May 2018. 
This flight was cancelled; instead, on 19 May 2018 on flight LH 409 the 
passengers were transported from [Or. 3] Newark (EWR) to Düsseldorf (DUS) 
and on OS 152 from Düsseldorf (DUS) to Vienna (VIE). The scheduled departure 
time of flight LH 409 was 19 May 2018, 16:35; the scheduled arrival time of 
flight OS 152 was 20 May 2018, 11:50. 
The claimant seeks an award of EUR 2,400 and submits that the passengers were 
entitled to compensation under Article 7 [of Regulation (EC) No 261/2004 […]] 
[of EUR 600 each, making a total of] EUR 2,400. They stated that they had 
assigned this claim to the claimant by way of declaration of assignment dated 
25 May 2018. From a legal point of view, the claimant submits that, according to 
the decision of the Court of Justice in Case C-394/14, Siewert, damage to the 
defendant's aircraft caused by an aircraft belonging to another airline is part of the 
air carrier’s business activities; collisions between aircraft on the tarmac did not 
constitute exceptional circumstances. In addition, the claimant argues that the 
defendant did not take all reasonable measures; in particular, in the event of 
cancellation, the provision of a replacement aircraft or the hiring of a charter plane 
should have been considered. If the flight had been operated on schedule or earlier 
by means of a substitute flight (including via New York JFK airport, which is one 
AIRHELP 
 
3 
hour's drive away), passengers would have been transported to their destination 
more quickly. 
The defendant contests the merits and the amount of the order sought, requests 
that the action be dismissed and submits that the cancellation of flight OS 090 
from Newark (EEA) to Vienna (VIE) was due to exceptional circumstances which 
did not entitle the claimant to any compensation. While the defendant’s aircraft 
[Or. 4] was in the parking position, a United Airlines Boeing 737 was pushed 
back from an opposite gate. During this manoeuvre the winglet of the United 
Airlines Boeing 737 collided with the elevator of the defendant's Boeing 767. If 
the air flow to the elevator is interrupted and the elevator is damaged, it can no 
longer contribute to steering. This could lead to a loss of control and, at low 
altitudes, to a crash of the aircraft. Any unrepaired damage to the elevator could 
thus become a major threat to the trouble-free operation of a flight. From a legal 
point of view, the defendant stated that the facts of the case were substantially 
different from those underlying the decision of the Court of Justice of 
14 November 2014, C-394/14, Siewert. Other air carriers, if they were to cause 
damage to a defendant’s aircraft, could not be attributed to that case. Instead, the 
much more recent decision of the ECJ of 4 May 2017, C-315/15, Pešková and 
Peška, should be referred to. In the same way as a bird strike, a collision with 
another aircraft should be considered an exceptional circumstance. Passengers 
were immediately transferred onto the next possible flight connections. 
The Bezirksgericht Schwechat, which had jurisdiction in the first instance, 
granted the order sought by passing the judgment appealed against, which was 
pronounced orally on 24 October 2019 and issued on 16 December 2019, on the 
basis of the documents submitted, but without hearing the parties and witnesses. It 
(merely) found that the passengers had signed a declaration of assignment to the 
claimant and based its decision on the undisputed facts set out above. As part of 
its legal assessment, the court of first instance considered the case-law of the 
Court of Justice in C-394/14, Siewert, and a number of German decisions and 
concluded [Or. 5] that the facts presented by the defendant did not suffice to 
conclude that there had been exceptional circumstances. 
The defendant appealed against that judgment to the referring court, requesting 
that the judgment under appeal be amended to the effect that the order sought be 
rejected. It submits that the court of first instance had misapplied Article 5(3) of 
the Flight Compensation Regulation. In particular, the defendant refers in its 
appeal to the decisions of the Court of Justice of 4 April 2019, C-501/17, 
Germanwings, and of 26 June 2019, C-159/18, Moens. 
The claimant requests that the appeal be dismissed. It refers to the decision of the 
ECJ of 14 November 2014, C-394/14, Siewert. In its response to the appeal, the 
claimant does not consider the decisions of 4 April 2019, C-501/17, 
Germanwings, and of 26 June 2019, C-159/18, Moens, to be comparable in terms 
of the facts. 
REQUEST FOR A PRELIMINARY RULING OF 28. 4. 2020 — CASE C-264/20 
 
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As the appellate court, the referring court is called upon to rule on the claimant's 
claims at second and final instance. It must confine itself to examining questions 
of law in accordance with the provisions of national procedural law […]. The 
procedural irregularity put forward on appeal, namely that the first court did not 
hear a witness, cannot therefore be addressed by the referring court. 
The court of appeal needs to examine whether the facts alleged by the defendant 
in the proceedings at first instance — assuming the allegations are correct — 
mean that there were exceptional circumstances within the meaning of 
Article 5(3) of the Flight Compensation Regulation. If that examination shows 
that the defendant did not present any facts at first instance which lead to the 
conclusion there were exceptional circumstances [Or. 6], the judgment of the 
court of first instance must be upheld. However, assuming that at first instance the 
defendant has sufficiently argued that there may have been exceptional 
circumstances, the national court must set aside the judgment under appeal and 
order the court of first instance to take evidence and make findings on the facts 
alleged by the defendant which will allow a legal assessment to be made as to 
whether or not exceptional circumstances exist (question 1). The court of first 
instance will then also have to take evidence and make findings that will allow it 
to assess whether the air carrier has done everything possible to prevent the 
consequences of the cancellation. This could include alternative transport, for 
example (question 2). The court of first instance would have to examine whether 
the transfer to earlier alternative transport would have been possible (question 3). 
Owing to national procedural law, in the event that the judgment under appeal is 
quashed, the appeal court is obliged to give the court of first instance instructions 
as to what evidence should be taken so that questions 2 and 3 are not merely 
hypothetical in nature. 
The questions referred: 
Question 1: 
The court of appeal has considered the judgments of the Court of Justice as cited 
by the parties. 
The order of 14 November 2014 in case C-394/14, Siewert, was based on a case in 
which a set of mobile boarding stairs had collided with an aircraft (judgment 
Siewert, paragraph 9). The Court of Justice found that this must be regarded as an 
event inherent in the normal exercise of the activity of an air carrier given that 
such mobile stairs or gangways are indispensable to air passenger transport, 
enabling passengers to enter or leave the aircraft [Or. 7] and, accordingly, air 
carriers are regularly faced with situations arising from their use. It did not qualify 
the event as an exceptional circumstance (Siewert, paragraph 19 and 20). 
The judgment of 4 May 2017 in Case C-315/15, Pešková and Peška, concerned a 
case in which an aircraft collided with a bird during landing (Pešková and Peška, 
paragraph 11). The Court of Justice ruled that a collision between an aircraft and a 
AIRHELP 
 
5 
bird as well as any damage caused by that collision, since they are not intrinsically 
linked to the operating system of the aircraft, are not by their nature or origin 
inherent in the normal exercise of the activity of the air carrier concerned and are 
outside its actual control; accordingly, that collision must be classified as 
‘extraordinary circumstances’ (Pešková and Peška, paragraph 24 and 26). 
The judgment of 4 April 2019 in Case C-501/17, Germanwings, concerned a case 
in which the air carrier contended that a screw was found, during the preparations 
for take-off of the flight at issue, in a tyre of the aircraft operating that flight 
(Germanwings paragraph 9). […] The Court of Justice ruled that damage to 
caused exclusively by collision with a foreign object cannot be considered to be 
inextricably linked to the operating system of the aircraft; the damage must be 
classified as an exceptional circumstance (Germanwings, paragraph 25 and 27). 
The judgment of the Court of Justice of 26 June 2019 in Case C-159/18, [Or. 8], 
Moens, concerned a case in which there was petrol on one of the airport's 
runways, which led to the closure of this runway for more than two hours (Moens, 
paragraph 7). The Court of Justice found that the presence of petrol on a runway 
of an airport when the petrol in question does not originate from an aircraft of the 
carrier that operated that flight cannot, logically, be regarded as intrinsically 
linked to the operation of the aircraft that made that flight, and considered the 
presence of petrol on an airport runway to be an exceptional circumstance (Moens 
paragraph 18 and 21). 
Referring to the judgments of the Court of Justice in Cases Pešková and Peška, 
Germanwings and Moens, the referring court concludes that, on the basis of the 
facts presented by the defendant in the proceedings at first instance, it must be 
assumed that the cancellation of the flight in question is based on an exceptional 
circumstance within the meaning of Article 5(3) of the Flight Compensation 
Regulation (provided that the facts can be proved accordingly). In a similar case, 
however, the Amtsgericht Nürtingen (Local Court Nürtingen, Germany) in its 
judgment of 31 January 2017, 10 C 1551/15, found that if two aircraft collide, a 
typical business risk materialises which is attributable to the sphere of the air 
carrier and which means that the air carrier is responsible for providing an 
operational aircraft ([…]). 
Since the legal opinion of the Landesgericht Korneuburg differs from that of the 
Amtsgericht Nürtingen (Germany), it is obliged to refer the question on the 
interpretation of Article 5(3) of the Flight Compensation Regulation; this is 
therefore not a case of acte clair. 
Question 2: [Or. 9] 
In order to discuss this question, reference is made to the divergent case-law of the 
Austrian Oberster Gerichtshof (Supreme Court; OGH) and the German 
Bundesgerichtshof (Federal Court of Justice; BGH). 
REQUEST FOR A PRELIMINARY RULING OF 28. 4. 2020 — CASE C-264/20 
 
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In its judgment of 3 July 2013, 7 Ob 65/13 d ([…]), the OGH states that the 
defendant was to be held accountable for failing to explain the reasons why the 
most obvious measure, namely re-booking the passenger onto another operated 
flight, had not been possible; it had therefore failed to discharge its obligation to 
provide proof pursuant to Article 5(3) of the Flight Compensation Regulation. 
[…]. 
The referring court considers the case-law of the Austrian OGH to be correct. The 
starting point of the German BGH, according to which a ‘flight’ did not mean the 
transport of an individual passenger but rather the transport operation of all 
passengers, has been rendered obsolete by the new case-law of the Court of 
Justice. […]While the Court of Justice initially strictly distinguished between the 
terms ‘flight’ and ‘journey’ (judgment of 10 July 2008 in Case C-173/07, 
Emirates Airlines, paragraph 40 and 41), more recent case-law (on the basis of 
segmented flights) tends to look at the different flight segments together, namely 
with regard to the calculation of the delay (judgment of 26 February 2013 in Case 
C-11/11, Folkerts, paragraph 35), the calculation of the distance [Or. 10] 
(judgment of 7 September 2017 in Case C-559/16, Bossen et al., paragraph 29), 
with regard to the place of performance (judgment of 7 March 2018 in Joined 
Cases C-274/16, C-447/16 and C-448/16, flightright et al., paragraph 73) as well 
as with regard to the scope of application of the Flight Compensation Regulation 
(judgment of 31 May 2018 in Case C-537/17, Wegener, paragraph 24). However, 
this necessarily entails the individualisation of the flight movements of the 
individual passenger; […] in the same vein, the Opinion of Advocate General 
Pikamäe of 27 February 2020 in Case C-74/19 Transportes Aéreos Portugueses, 
which refers to the re-booking of a passenger onto other routes, with or without a 
stopover, as a reasonable measure that the national court must examine inter alia 
(paragraph 76). 
Since the legal opinions of two national (supreme) courts differ from each other, 
there is no acte clair in this respect either. 
Question 3: 
The Flight Compensation Regulation uses the term ‘re-routing’ instead of ‘re-
booking’, specifically in Article 5(1)(c)(ii) and (iii), on the one hand, and in 
Article 8(2)(b) and (c), on the other, but does not define it. Pursuant to 
Article 5(1)(c)(ii) and (iii) of the Flight Compensation Regulation, the right to 
compensation to which passengers are in principle entitled in the case of 
cancellation does not exist if the air carrier offers re-routing, based on the time of 
the offer before the scheduled time of departure, on the one hand, and the delay in 
arriving at the final destination, on the other. Given that in such a case not only is 
the right to compensation under Article 7 of the Flight Compensation Regulation 
Compensation inapplicable, the right to be re-routed as per Article 7 Flight 
Compensation Regulation is met at the same time [Or. 11] and typically no rights 
to care as per Article 9 of the Flight Compensation Regulation arise due to the 
AIRHELP 
 
7 
time gap until the departure time, these provisions regarding alternative transport 
lead to a factual limitation of the scope of application of the regulation. 
However, Article 8 of the Flight Compensation Regulation governs the rights to 
be granted by the air carrier in the event of an interruption to service governed by 
the Flight Compensation Regulation (denied boarding, cancellation and delay). 
The passenger is granted the right to choose between reimbursement of the cost of 
the ticket, re-routing under comparable transport conditions to his/her final 
destination at the earliest opportunity, or re-routing under comparable transport 
conditions to his/her final destination at a later date at the passenger’s 
convenience, subject to availability of seats. 
The referring court has already adopted the position, in several decisions, that in 
the event of the existence of extraordinary circumstances (as also in this specific 
case), it is true that the air carrier must at least attempt re-booking; if re-booking is 
attempted, particularly if the passenger accepts the re-booking, this re-routing 
does not have to satisfy either the time limits under Article 5(1)(c)(iii) of the 
Flight Compensation Regulation or the temporal or qualitative criteria under 
Article 8(1)(b) and (c) of the Flight Compensation Regulation (LG Korneuburg 
24 April 2018, 21 R 119/18z […]). The reason for this is that these criteria apply 
irrespective of whether or not there are extraordinary circumstances. However, if 
the air carrier has already succeeded in demonstrating the existence of 
extraordinary circumstances, the two strict criteria that also apply in cases not 
involving extraordinary circumstances cannot be imposed on the re-routing [Or. 
12]. It is important for the remainder of the proceedings whether the alternative 
transport did not have to meet any time or quality criteria or whether the criteria 
laid down in Article 5(1)(c)(iii) of the Flight Compensation Regulation or 
Article 8(2)(b) and (c) of the Flight Compensation Regulation are to be applied. 
[…] 
Landesgericht Korneuburg, […] 
Korneuburg, 28 April 2020 
[…]