Opinion of the Advocate General — ECLI:EU:C:2021:829
Date: 2021-10-06
Language of the case: German
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, that the passenger cannot claim compensation 
on the ground that flight TK 68 flight was scheduled to arrive at 3:00 p.m. 
In its judgment under appeal, the Bezirksgericht Schwechat (District Court, 
Schwechat) as the court of first instance allowed the claim. On the basis of the 
facts established, which are not disputed […] and are set out above, the court 
considered the law and took the view that it was clear from the text of the 
Regulation that [under Article 5(1)(c)(iii) of the Flight Compensation Regulation] 
the comparison between the scheduled arrival time of the original flight and the 
actual arrival at the final destination using the re-routed flight was decisive. An air 
carrier is therefore exempt from payment of compensation if the passenger 
actually arrives at his final destination using the alternative flight offered no more 
than two hours after the originally scheduled arrival time. If that was not the case, 
the passenger would be entitled to compensation for the cancellation of the 
originally planned flight even if the replacement flight – had it been operated on 
schedule – would have released the defendant from his obligation to pay 
compensation. In this case, the passenger on flight OS 25 was scheduled to land at 
BKK at 2:20 p.m., but in fact he only reached his [Or. 5] final destination using 
flight TK 68 at 4:47 p.m. The claim for compensation – reduced by 50% pursuant 
to Article 7(2)(c) of the Flight Compensation Regulation – was therefore valid. 
The court of first instance did not address the question whether the provisions of 
the Flight Compensation Regulation were even applicable to the facts at issue. 
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. The appellant claims, in essence, that it is not apparent from the wording 
of Article 5(1)(c)(iii) of the Flight Compensation Regulation that reference must 
be made to the actual arrival at the final destination in order to determine the time 
frame described therein; instead, what matters is the comparison of the scheduled 
arrival of the flight originally booked and the scheduled arrival of the re-routed 
flight. 
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In its response to the appeal, the applicant argues in essence that the argument 
put forward by the court of first instance was correct given that, by focusing on 
the scheduled arrival time of the re-routed flight, it was not ensured that the 
passenger was spared the trouble of arriving late at his final destination. 
As the appellate court, the referring court is called upon to rule on the applicant’s 
claims at second and final instance. In doing so […] it must confine itself to 
examining questions of law. 
Consideration of the questions referred: [Or. 6] 
Question [1]: 
Under Article 3(1) of the Flight Compensation Regulation this Regulation applies: 
a) to passengers departing from an airport located in the territory of a Member 
State to which the Treaty applies; 
b) to passengers departing from an airport located in a third country to an 
airport situated in the territory of a Member State to which the Treaty applies, 
unless they received benefits or compensation and were given assistance in that 
third country, if the air carrier operating the flight concerned is a Community 
carrier. 
It can be inferred from the detailed preliminary considerations set out by the Court 
of Justice of the European Union in its decision [of 11 June 2020] in Case 
C-74/19 Transportes Aéreos Portugueses [EU:C:2020:460] (paragraph 31 et seq.), 
which concerned a single air route booked from Fortaleza (Brazil) via Lisbon 
(Portugal) to Oslo (Norway), that it only considered the Flight Compensation 
Regulation to be applicable with reference to Article 47(2) of the EEA Agreement 
in conjunction with Article 126(1) of the EEA Agreement, point 8 of Protocol 1 to 
the EEA Agreement and Annex XIII to the EEA Agreement, subject to the 
conditions laid down in the Regulation, for flights that departed or terminated at 
an airport within Norwegian territory […]. Accordingly, the stopover in European 
Union territory (Lisbon) had no effect such as to render the Flight Compensation 
Regulation applicable. 
In the present case, however, this would mean that the Flight Compensation 
Regulation would not apply to the KIV-VIE-BKK air route booked in the present 
case. 
It is, however, uncertain whether that interpretation was intended by the legislator 
in the light of the high level of protection aspired to in recital 1 [Or. 7] of the 
Regulation. 
If the two flights had not been the subject of a single booking, each of the two 
flights would have indeed fallen within the scope of the Flight Compensation 
Regulation on account of the clear wording of Article 3(1) of the Regulation. The 
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5 
passenger would be deprived of protection solely because of the fact that only a 
single booking was made. 
The additional (scheduled) carriage by the same air carrier, either on a feeder 
flight into European Union territory or a connecting flight out of European Union 
territory, would thus deprive the passenger of the protection he would enjoy 
without the additional flight booked. 
Question [2]: 
In the present case, the relevant question is whether the provision of 
Article 5(1)(c)(iii) of the Flight Compensation Regulation, 
[that] in case of cancellation of a flight the passengers concerned shall have the 
right to compensation by the operating air carrier in accordance with Article 7, 
unless they are informed of the cancellation less than seven days before the 
scheduled time of departure and are offered re-routing, allowing them to depart 
no more than one hour before the scheduled time of departure and to reach their 
final destination less than two hours after the scheduled time of arrival 
must be interpreted as meaning that the time frame established therein refers to the 
scheduled or the actual times of departure and arrival of the re-routed flight. If the 
focus lies on the scheduled arrival at the final destination (time difference: 
40 minutes), there would be no compensation claim; if the focus lies on the actual 
arrival (time difference: 2 hours and 27 minutes) there would be a valid 
compensation claim. [Or. 8] 
In common parlance, ‘allowing’ means that the actual conditions for achieving an 
objective are established and it therefore depends only on the addressee whether 
or not they exercise the option offered to them. The legislator could, however, 
have chosen clearer wording in order to base the right to compensation on the 
actual circumstances. However, this argument can also be applied in reverse 
because, even if the legislator had wanted to base the right to compensation only 
on the scheduled times of the replacement service, this could have also been 
worded more clearly. 
It is therefore sensible to refer to other language versions of the text of the 
Regulation. The English version 
‘…are offered re-routing, allowing them to …’ 
and the French version 
‘…un réacheminement leur permettant …’ 
are broadly equivalent to the German version while the Dutch 
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‘…[hun een] andere vlucht naar hun bestemming wordt aangeboden die niet 
eerder dan één uur voor de geplande vertrektijd vertrekt en hen minder dan twee 
uur later dan de geplande aankomsttijd op de eindbestemming brengt.’ 
and the Danish version 
‘… og får tilbudt en omlægning af rejsen, så de kan afrejse højst en time før det 
planlagte afgangstidspunkt og ankomme til det endelige bestemmelsessted senest 
to timer efter det planlagte ankomsttidspunkt. 
seem to clearly focus on the actual departure and arrival times, while the Italian 
version 
‘…e sia stato loro offerto di partire con un volo alternativo non più di unʼora 
prima dellʼorario di partenza previsto e di raggiungere la destinazione finale [Or. 
9] meno di due ore dopo l’orario dʼarrivo previsto.’ 
does not seem to consider the actual arrival time to be decisive. 
As far as the appellate court can see, the prevailing case-law of the national courts 
interprets the provision in question as requiring the scheduled arrival time of the 
cancelled flight to be compared to the actual arrival time of the replacement flight. 
[…] 
Similarly, in its judgment [of 27 June 2018, flightright v Eurowings (C-130/18, 
EU:C:2018:496)], the Court of Justice also relied on the difference between the 
scheduled arrival of the cancelled flight and the actual arrival of the replacement 
flight; however, the facts underlying that case did not show whether or not the 
difference between the scheduled arrival of the cancelled flight and the actual 
arrival of the replacement flight was more than two hours or not. Nor did the 
question referred in that case refer to the interpretation of Article 5(1)(c) of the 
Flight Compensation Regulation, but to the conflict between it and the decision of 
the European Court of Justice of 19 November 2009 in Sturgeon and Others 
(Joined Cases C-402/07 and C-432/07, EU:C:2009:716)]. 
However, the applicant’s argument that the flight times of the replacement flight 
should be taken into account is entirely convincing, however, because it presents 
two examples to show that, if only the actual times of the replacement flight are 
taken into account this may lead to results that clearly contradict the purpose of 
the Flight Compensation Regulation, i.e. to ensure a high level of protection for 
passengers, for whom [Or. 10] denied boarding, cancellations or long delays 
cause trouble (recitals 1 and 2). 
Example 1: 
The flight times of the flight cancelled at short notice are 10:00 a.m. to 12:00 
noon. The passenger receives an offer for a replacement flight with an off-block 
time of 07:00 a.m. However, that flight is subsequently subject to a two-and-a-
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half-hour delay and eventually leaves with an off-block time of 09:30 a.m. 
Although, in this case, the passenger is inconvenienced twice, namely first in 
terms of receiving an offer that does not meet the criteria of Article 5(1)(c)(iii) of 
the Regulation (which may also mean that he has to arrive at the airport 
significantly earlier than anticipated) and, thereafter, in terms of a delay (even if 
this is less than three hours), he would not be entitled to compensation. In cases 
such as these, the air carrier operating the cancelled flight would even be 
‘rewarded’ for the delay of the replacement flight. 
Example 2: 
The flight times of the flight cancelled at short notice are 10:00 a.m. to 12:00 
noon. The passenger is offered a replacement flight with an off-block time of 
09:00 a.m. This reduces the trouble for the passenger because he merely has to 
‘suffer’ a flight transfer while, essentially, staying within the scheduled travel 
times. The passenger does not, however have a right to compensation. If the flight 
in question is dispatched earlier than planned because of rapid boarding (for 
example, because a much lower volume of passengers is transported on the 
replacement flight), which means that it has an earlier off-block time of say 8:55 
a.m., this would give the passenger a right to compensation because the flight 
departs more than an hour before the flight originally booked. The air carrier 
would therefore have been better placed to have taken its time boarding, and the 
passenger receives compensation for the fact that the flight departs a few minutes 
earlier even though – in contrast to the previous example [Or. 11] – his flight 
times have barely changed. In this case, the air carrier of the cancelled flight 
would be ‘punished’ for the rapid boarding of the operating air carrier. 
There is nothing in the wording of Article 5(1)(c)(ii) and (iii) of the Flight 
Compensation Regulation to suggest that that provision was intended to make a 
distinction with regard to the replacement service in such a way that departure 
times are determined on the basis of scheduled flight times whereas the arrival 
times are determined on the basis of the actual hours of arrival. 
In addition, the following shall be taken into account: in accordance with its 
wording (‘are offered’) the provision to be interpreted appears to assume that the 
air carrier is required to reimburse only a (realistic and acceptable) offer for a 
replacement service, namely that it is only required to re-route passengers to a 
replacement flight, which does not have to be operated by the air carrier itself. It 
does not, therefore, have to operate the replacement service itself but must merely 
‘enable’ the passenger to use such service. The question is therefore whether any 
delay of the replacement flight, which may not lie within its sphere of 
responsibility should in fact be attributable to the air carrier being held liable, or 
whether it has already fulfilled all its obligations by offering to re-route the 
passenger (and doing so in the event that the passenger accepts the offer) and is 
therefore able to avert a compensation claim. 
REQUEST FOR A PRELIMINARY RULING OF 25. 8. 2020 – CASE C-451/20 
 
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That must be taken into consideration in particular in the light of the recent 
decision of the Court of Justice [of 12 March 2020, Finnair (C-832/18, 
EU:C:2020:204)], according to which the inconvenience caused to a passenger by 
the cancellation of the booked flight and the long delay of the replacement flight 
must be assessed separately and may, where appropriate, give rise to two [Or. 12] 
rights to compensation (judgment […] Finnair paragraph 31). 
If one were to focus on the actual arrival time of the replacement flight, that could 
lead to different legal consequences in comparable situations. 
Example 3: 
The flight short-term cancelled flight should have reached the final destination at 
15: 00. The replacement flight offered to the passenger actually reached the final 
destination at 8:00 p.m. 
First alternative 
The air carrier re-routes the passenger onto a replacement flight intended to reach 
the final destination at 4:00 p.m. 
In that case, the passenger would have two claims to compensation: first, against 
the air carrier which should have operated the cancelled flight on the grounds that 
the actual arrival of the replacement flight is delayed by five hours compared to 
the scheduled arrival time of the cancelled flight and, therefore, the limits of 
Article 5(1)(c)(iii) of the Flight Compensation Regulation are not complied with; 
second, against the air carrier operating the replacement flight on the grounds that 
its flight was subject to a significant delay in arrival at the final destination of four 
hours in relation to its own flight schedule. 
Second alternative 
The air carrier re-routes the passenger onto a replacement flight scheduled to 
reach the final destination at 6:30 p.m. 
In that case, the passenger receives compensation from the air carrier scheduled to 
operate the cancelled flight; however, he does no receive any compensation from 
the air carrier operating the replacement flight since the latter was only 1 hour and 
30 minutes delayed in relation to his own flight schedule. 
In both cases, the passenger suffers the same inconvenience: the cancellation of 
the original flight and the five-hour delay in relation to the scheduled arrival time 
of the cancelled flight. [Or. 13] 
If, however, the focus was placed on the scheduled rather than the actual arrival of 
the replacement flight, the passenger would receive only one compensation 
payment in both cases; in the first alternative, from the air carrier operating the 
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replacement flight and in the second alternative, from the air carrier operating the 
cancelled flight. 
Thus, from the referring court’s point of view, an interpretation according to 
which it is required to refer to the actual time of arrival of the replacement service 
when assessing whether the requirements for the exemption laid down in 
Article 5(1)(c)(iii) (and (ii)) of the Flight Compensation Regulation have been met 
is likely to lead to solutions which give rise either to different legal consequences 
for similar circumstances or which take away an apparent claim from the 
passenger even though his level of inconvenience has increased. Such 
interpretations appear to be contrary to the purpose of the Regulation, in particular 
recitals 1 and 2. 
Since that question has not yet been definitively clarified in the case-law of the 
Court of Justice – as far as the referring court can see – and since the referring 
court intends to give an interpretation that differs from that of other decisions of 
national courts, the court was obliged to refer the matter for a preliminary ruling. 
[…] 
Landesgericht Korneuburg (Regional Court, Korneuburg) […] 
Korneuburg, 25 August 2020 
[…]