Judgment;Summary — ECLI:EU:C:2024:253
Date: 2024-03-21
Language of the case: German
Court formation: Third Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-76/23 – 1 
Case C-76/23 
Request for a preliminary ruling 
Date lodged: 
13 February 2023 
Referring court: 
Landgericht Frankfurt am Main (Germany) 
Date of the decision to refer: 
2 January 2023 
Applicant: 
Cobult UG 
Defendant: 
TAP Air Portugal SA 
  
Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, 
Germany) 
24th Civil Chamber 
… 
Order 
In the case of 
Cobult UG, …Berlin, 
Applicant and appellant 
…v 
TAP Air Portugal S.A.,… Lisbon, Portugal, … Frankfurt am Main, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 2. 1. 2023 – CASE C-76/23 
 
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Defendant and respondent  
… on 2 January 2023 the 24th Civil Chamber of the Regional Court, Frankfurt am 
Main …  
ordered as follows: 
I. The following question on the interpretation of EU law is referred 
to the Court of Justice of the European Union (CJEU) for a 
preliminary ruling under Article 267(2) of the Treaty on the 
Functioning of the European Union, as last amended by Article 2 
of the European Council Decision of 11 July 2012 (2012/419/EU) 
(OJ L 204, p. 131): 
Must Article 7(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 (‘the Air 
Passenger Rights Regulation’) be interpreted as meaning that a 
signed agreement of the passenger on the reimbursement of the 
cost of the ticket with a travel voucher within the meaning of the 
first indent of Article 8(1)(a) of Regulation (EC) No 261/2004 exists 
where the passenger selects a voucher of this type on the website of 
the operating air carrier to the exclusion of a subsequent refund of 
the cost of the ticket in monetary form and receives it by email, 
while reimbursement of the cost of the ticket in monetary form is 
only possible after first contacting the operating air carrier? 
II. The proceedings are stayed. 
Grounds: 
I. 
The dispute between the parties to the appeal proceedings centres on the 
reimbursement of ticket costs under assigned rights and the reimbursement of pre-
judicial legal fees. 
The assignor booked a flight on 1 July 2020 from Fortaleza (Brazil) via Lisbon to 
Frankfurt am Main (flight numbers TP2520 and TP2858) with the defendant and 
respondent (‘the defendant’) acting also as the operating air carrier under the flight 
booking reference number O6PUCJ. The cost of the ticket amounted to 
EUR 1 447.02. The defendant cancelled the flight. The assignor transferred her 
rights against the defendant to the applicant and appellant (‘the applicant’) on 
30 July 2020. In a letter of 30 July 2020, the applicant unsuccessfully called on 
the defendant to refund the airfare, setting a deadline for payment of 14 days. A 
solicitor’s letter dated 3 September 2020 also remained unanswered. 
COBULT 
 
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Since 19 May 2020, the defendant has made a procedure available on its website 
for initiating refunds, including for flights it has cancelled. This gave passengers 
the choice between online reimbursement by voucher or, after contacting the 
defendant’s ‘Contact Center’, other forms of reimbursement, such as refunds in 
monetary form, after an examination of the facts by employees of the defendant. 
According to the ‘Conditions of acceptance’ (now written in English), which the 
passenger, when selecting the voucher option, had to accept after being required to 
enter ticket number, surname, email address and telephone number, a 
reimbursement of the cost of the ticket in cash was precluded. … 
The defendant claimed that on 4 June 2020 the assignor had applied to be issued 
with a refund in the form of a voucher and had also been sent the voucher for the 
amount of EUR 1 737.52 by email. The defendant named a witness in this regard. 
The local court dismissed the action. The assignor’s rights were extinguished by 
the issuing of the voucher, which was not sufficiently contested by the applicant 
(Paragraph 362(1) of the Bürgerliches Gesetzbuch (German Civil Code, ‘the 
BGB’)). With regard to Article 7(3) of Regulation No 261/2004, the local court 
states that the requirement for putting matters in writing should serve to warn the 
passenger against making too hasty a decision. Due to flight bookings 
predominantly being processed digitally, a reimbursement procedure on the 
airline’s booking portal was sufficient. … 
The applicant is now pursuing her claims against the defendant further through the 
permissible appeal. 
II. 
1. 
In the view of the referring court, it is not clear from the outset how Article 7(3) of 
Regulation No 261/2004 is to be interpreted: 
According to Article 7(3) of Regulation No 261/2004, to which Article 8(1)(a) of 
the regulation refers, reimbursement of the cost of the ticket following 
cancellation and in accordance with the choice of the passenger is to be paid in 
cash, by electronic bank transfer, bank orders or bank cheques or, with the signed 
agreement of the passenger, in travel vouchers and/or other services. 
In this respect, in the absence of a definition in Article 2 of Regulation 
No 261/2004, the term ‘signed agreement’ must be given a uniform and 
autonomous interpretation in EU law. In that regard, according to settled case-law, 
for the purpose of interpreting a provision of EU law, it is necessary to consider 
not only its wording but also the context in which it occurs and the objectives 
pursued by the rules of which it forms part (CJEU, judgment of 2 April 2020, 
kunsthaus muerz gmbh v Zürich Versicherungs AG, C-20/19, EU:C:2020:273 …). 
REQUEST FOR A PRELIMINARY RULING OF 2. 1. 2023 – CASE C-76/23 
 
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In view of the uniform principles of interpretation in the territory of the European 
Union, the referring court considers that it is not possible, first of all, to infer from 
the use of the term ‘written’ within the meaning of Paragraph 126(1) of the BGB 
and from the general requirement for a handwritten signature laid down therein in 
German (and presumably also in Austrian) law that the defendant’s policy is 
unlawful (see, however, judgment of Amtsgericht Düsseldorf (Local Court, 
Düsseldorf, Germany) of 25 June 2021, 50 C 49/21 = BeckRS 2021, 19274, 
margin number 4, partial judgment of Landesgericht Korneuburg (Regional Court, 
Korneuburg, Austria) of 18 August 2022, 22 R 58/22 = BeckRS 2022, 25277, 
margin number 13, and judgment of Bezirksgericht für Handelssachen Wien 
(District Court for Commercial Matters, Vienna, Austria) of 11 March 2021, 7 C 
12/21x = BeckRS 2021, 12057, margin number 15, with reference to Article 11(2) 
of Regulation (EC) No 593/2008 of the European Parliament and of the Council 
of 17 June 2008 on the law applicable to contractual obligations (Rome I). 
Contrary to the decision of the District Court for Commercial Matters, Vienna, it 
is not a national formal requirement that is relevant, but a standardised 
requirement of EU law. 
First of all, it must be inferred from the concept of reimbursement within the 
meaning of Article 8(1)(a) of Regulation No 261/2004 that – in principle – 
without the consent of the passenger, only monetary compensation can be 
considered …. 
This is confirmed by Article 7(3) of Regulation No 261/2004 which, by also 
requiring the signed agreement of the passenger, establishes a rule-exception 
relationship. It follows from that provision that reimbursement in the form of 
vouchers and other services should be the exception. In principle, derogations are 
to be interpreted strictly in EU law (see also, for comparison, CJEU judgment of 
4 October 2012, Finnair Oyj v Timy Lassooy, C-22/11, EU:C:2012:604, = 
Europäische Zeitschrift für Wirtschaftsrecht (EuZW) 2012, 945, 947, margin 
number 38 – Finnair Oyj/Timy Lassooy). 
On the one hand, that strict interpretation could indicate that it is not sufficient to 
allow a voucher reimbursement procedure on the website of the operating air 
carrier because the wording of Article 7(3) of Regulation No 261/2004 
specifically provides for an additional hurdle for reimbursement in the form of a 
voucher and thereby discharge from the liability within the meaning of 
Article 8(1)(a) of Regulation No 261/2004. The additional formal requirement that 
the agreement should be in writing is, according to the local court, intended to 
serve as a warning to the passenger against choosing a voucher rashly and without 
due consideration, which the EU legislature regarded as … with the scheme [of 
the Regulation]* being a less favourable option for the passenger. That 
interpretation could accordingly serve the purposes of recitals 1 and 4 and the high 
level of consumer protection to be achieved, in line with the rule-exception 
 
* N.d.t: Text missing in the German 
COBULT 
 
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relationship in Article 7(3) of Regulation No 261/2004. If, on the other hand, one 
were to take a different view and solely an online reimbursement procedure were 
to be allowed or deemed sufficient which, as in the present case, even makes 
reimbursement in the form of a voucher more difficult than a monetary refund due 
to the requirement of first contacting the operating air carrier, Article 7(3) of 
Regulation No 261/2004 and its scheme would be turned on its head to the 
detriment of passengers. 
On the other hand, the passenger is already protected by Article 14(2) of 
Regulation No 261/2004, which provides for sufficient information, in writing, to 
be given to the passenger with regard to the rights under the regulation. 
Furthermore, it is precisely with a view to the level of consumer protection that 
Regulation No 261/2004 also stipulates, in Article 8(1)(a) of the regulation, the 
closeness in time of a reimbursement to the cancellation. 
The requirement of actual written consent from the passenger, in the form of 
consent by post or even just individual consent by email, would, where applicable, 
extend the reimbursement period while at the same time limiting the 
administrative options for operating air carriers, whose interests must also be 
taken into account. The local court also implied this when it explained that, 
nowadays, flight bookings are predominantly processed digitally. Consequently, 
an online reimbursement procedure in multiple stages, such as in the present case, 
could also fulfil the function of providing adequate information and warnings, 
particularly in the high-volume business of flight bookings (see also, in terms of 
result, the judgment of the District Court for Commercial Matters, Vienna, of 
11 March 2021, 7 C 12/21x = BeckRS 2021, 12057, margin number 16, and the 
decision of the local court). 
2. 
The interpretation of Article 7(3) of Regulation No 261/2004 is relevant to the 
present case. If the defendant’s online reimbursement procedure since 19 May 
2020 is not sufficient, the applicant’s claim continues to exist, and the appeal 
would be well-founded for that reason alone. If the defendant satisfies the 
requirements of Article 7(3) of Regulation No 261/2004 through the online 
reimbursement procedure, the witness named by the defendant (with whom the 
burden of proof lies) should be heard by the court of appeal on the matter of the 
issuing of the voucher to the assignor. In this respect, unlike the local court, the 
court of appeal proceeds on the assumption that the choice of a voucher has been 
sufficiently challenged by the applicant. 
…