Judgment;Summary — ECLI:EU:C:2019:604
Date: 2019-07-11
Language of the case: Czech
Court formation: Ninth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Czechia

Anonymised version 
Translation C-502/18 - 1 
Case C-502/18 
Request for a preliminary ruling 
Date lodged:  
30 July 2018 
Referring court:  
Městský soud v Praze (Czech Republic) 
Date of the decision to refer:  
17 May 2018 
Applicants:  
CS 
DR 
EQ 
FP 
GO 
HN 
IM 
JL 
KK 
LJ 
MI 
Defendant:  
České aerolinie a.s. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 17. 5. 2018 – CASE C-502/18 
 
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(Omissis) 
ORDER 
The Městský soud v Praze (Prague City Court, Czech Republic) has decided, as 
the first-instance appellate court …in the case of: 
a/ CS… 
b/ DR… 
c/ EQ…  
d/ FP…  
e/ GO…  
f/ HN…  
g/ IM…  
h/ JL…  
ch/ KK…  
i/ LJ…  
j/ MI… 
(the applicants at first instance) 
v 
České aerolinie, … with its seat in Prague 6 … 
(the defendant at first instance) 
seeking payment of EUR 6 600 plus default interest and costs. 
concerning an appeal brought by the defendant at first instance against the 
judgment of the Obvodní soud pro Prahu 6 (District Court, Prague 6, Czech 
Republic) dated 12 January 2016 (Omissis) [,] after the setting aside of the 
judgment of the Městský soud v Praze (Prague City Court) by a decision of the 
Ústavní soud (Czech Constitutional Court) dated 31 October 2017…, 
as follows: 
[national proceedings]… 
ČESKÉ AEROLINIE 
 
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II. The Městský soud v Praze (Prague City Court) refers the following question 
to the Court of Justice of the European Union for a preliminary ruling: 
“Is there an obligation on a Community carrier to pay compensation to passengers 
under Article 3(5), second sentence, 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] where the Community carrier as the contractual 
carrier operated the first leg of a flight with a stopover at an airport in a non-
Member State, from which, under a code sharing agreement, a carrier which is not 
a Community carrier operated the second leg of the flight and [OR 2] there was a 
delay of more than three hours in the arrival at the final destination airport which 
arose exclusively in the second leg of the flight?” 
Grounds: 
1 [National proceedings](Omissis) 
2 The facts of the case are as follows: the defendant performed the first leg of the 
flight in respect of whose late arrival the applicants are seeking compensation 
from the defendant, inasmuch as its aircraft (Flight OK 350) departed from Prague 
airport in accordance with the flight plan on 16 January 2014 at 23h40 and arrived 
at Abu Dhabi airport on 17 January 2014 at 05h24. The scheduled flight arrival 
time was 06h05. The second leg of the flight after the stopover was operated by 
the company Etihad airways, in accordance with the flight plan and under a code 
sharing agreement (Flight OK 3172). The company Etihad Airways is not a 
Community carrier. There was a delay which arose in the second leg of the flight, 
after the stopover. Instead of departing from Abu Dhabi on 17 January at 10h40, 
the aircraft did not depart until 17 January at 19h19 and it arrived at Bangkok at 
03h53 on 18 January. The 8 606 km flight from Prague to Bangkok was therefore 
delayed by 488 minutes. 
3 In its legal assessment, the first-instance court concluded that the claims brought 
are claims under Regulation (EC) No 261/2004 [of the European Parliament and 
of the Council] (‘the Regulation’) which, pursuant to Article 288 of the Treaty on 
the Functioning of the European Union, is directly applicable. The applicability of 
the Regulation to the case at issue follows from Article 3(1)(a) and Article 2(h) 
thereof in conjunction with the judgment of the Court of Justice in Case C-11/11, 
inasmuch as the passengers departed from Prague airport, that is to say from an 
airport in an EU Member State. The court then concluded that the amount claimed 
was justified under Article 7(1)(c) of the Regulation read in conjunction with the 
judgment of the Court of Justice in Case C-402/07.  
4 The main legal issue was the defendant’s legal capacity to be sued. The defendant 
objected that it did not have capacity to be sued since in the flight leg from Abu 
Dhabi to Bangkok it was not the operating air carrier (Article 2(b) of the 
REQUEST FOR A PRELIMINARY RULING OF 17. 5. 2018 – CASE C-502/18 
 
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Regulation). However, the first-instance court inferred the defendant’s liability 
from Article 3(5), second sentence, of the Regulation, which provides that where 
an operating air carrier which has no contract with the passenger performs 
obligations under this Regulation, it is to be regarded as doing so on behalf of the 
person having a contract with that passenger. It therefore upheld the application in 
its entirety.  
5 The referring court, as the first-instance appellate court, confirmed the judgment 
of the first-instance court by a judgment of 26 April 2016 …, it furthermore ruled 
as to the success of the application and as to the costs of the first-instance appeal 
proceedings. As of the time of the first-instance appeal proceedings, the defendant 
contended that the case should be referred to the Court of Justice of the European 
Union in particular with regard to the appraisal of the liability of the contractual 
carrier for the flight leg operated by another carrier. At that stage of the 
proceedings, the first-instance appellate court concluded that the solution to the 
legal questions for which the reference to the Court of Justice was requested could 
be clearly deduced from the abovementioned Regulation No 261/2004 in 
conjunction with the judgment of the Court of Justice in Case C-11/11. It did not 
take the view that the case-law of the Court of Justice was inconsistent, and 
therefore the cited judgment in Case C-173/07 did not have an impact on the 
present case in the first-instance appeal proceedings. The first-instance appellate 
court thus agreed that a flight from an airport in an EU Member State, to which 
the Treaty on the Functioning of the European Union applies, must be regarded as 
a single flight, even if the airport of final destination is reached after a stopover 
(judgment in Case C-11/11). Like the first-instance court, it relied on Article 3(5) 
of the Regulation, under which the operating air carrier acts on behalf of the 
person having a contract with the passenger concerned. It follows from Article 
3(5) of the Regulation, as applied to the case in the main proceedings, that the 
defendant is directly liable to the applicants for the damage they suffered on 
account of the delay in the flight leg operated by the company Etihad Airways, 
since a constituent feature of the legal concept of ‘agency’ is [OR 3] that the 
principal is directly responsible for the acts of the agent. The first-instance 
appellate court considered that interpretation of the Regulation to be entirely 
pertinent to the situation and correct, inasmuch as the liability of the contractual 
carrier stems from the contract and the carrier cannot be exempted on the ground 
that the delayed flight leg was operated by another party and inasmuch as it 
assessed the situation as identical to any other form of subcontracting. In its legal 
assessment the first-instance appellate court also had regard to the fact that the 
legal finding set out above had also been adopted by other chambers of the 
Městský soud v Praze (Prague City Court), which had adjudicated on cases with 
similar facts…. It further held that where the amount claimed by each applicant 
individually is less than CZK 50 000, there is no appeal on a point of law allowed 
against its judgment to the Nejvyšší soud ČR (the Supreme Court, Czech 
Republic) and it advised the parties of this in the written version of its judgment. 
6 Ruling on a constitutional complaint brought by the defendant, the Ústavní soud 
ČR (Czech Constitutional Court) in its judgment of 31 October [2017] set aside 
ČESKÉ AEROLINIE 
 
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the judgment of the Městský soud v Praze (Prague City Court) of 26 April 2016 
…. The Ústavní soud (Constitutional Court) concluded that the first-instance 
appellate court had infringed the right of the parties to a fair trial under Article 
36(1) of the Czech Charter of Fundamental Rights and Freedoms (Listina 
základních práv a svobod), which forms part of the constitutional order of the 
Czech Republic …, inasmuch as it had incorrectly advised the parties that no 
appeal on a point of law was possible. The Ústavní soud (Constitutional Court) 
found that the claim brought is a claim on the basis of a consumer contract and 
that an appeal on a point of law to the Nejvyšší soud (Supreme Court) … against a 
decision by the first-instance appellate court on such a claim is admissible 
irrespective of the amount claimed in the proceedings. It also directed the first-
instance appellate court to address the arguments contained in the decision of the 
German Federal Court of Justice (‘Bundesgerichtshof’) Xa ZR 132/08, to which 
the complainant had referred.  
7 In the proceedings before the first-instance appellate court, the defendant 
subsequently relied, in support of its arguments, on the judgments of the 
Bundesgerichtshof Xa ZR 132/08, X ZR 14/12, X ZR 73/16 and X ZR 101/16. It 
also relied on the findings in the judgment of the Court of Justice in Case 
C-302/16. Judgment Xa ZR 132/08 of the Bundesgerichtshof specifically 
addresses a case similar to that in the main proceedings, in which a flight was 
delayed in the leg operated by a carrier other than the contractual carrier. The 
Bundesgerichtshof held in that case that the contractual carrier was not liable since 
it was not the operating air carrier. Subsequently, in its judgment X ZR 14/12, the 
Bundesgerichtshof also held in a similar case that the case concerned two separate 
flights. However, both those judgments were delivered prior to the judgment of 
the Court of Justice in Case C-11/11, which defined a flight with a stopover as a 
single flight. Although judgment X ZR 73/16 of the Bundesgerichtshof deals with 
special circumstances, in judgment X ZR 101/16 it was concluded, with reference 
to the judgment of the Court of Justice in Case C-302/16 (paragraph 27), that the 
Regulation could not be interpreted as ruling out the possibility for the 
contractually-bound operating air carrier to avoid its obligations under the 
Regulation by means of a connection operated by a carrier which is not covered 
under the Regulation (see paragraphs 16 and 18 of the judgment). The Městský 
soud v Praze (Prague City Court) infers from the above that the findings in the 
abovementioned judgments of the Bundesgerichtshof tend to support the 
defendant’s arguments, even if it cannot be overlooked that the reference to the 
judgment of the Court of Justice in Case C-302/16 is not entirely relevant, since 
that judgment dealt with a different situation. The ratio of the judgment of the 
Court of Justice Case C-302/16 was that where a flight is cancelled, the operating 
air carrier is required to pay compensation to passengers where it did not inform 
them directly of that cancellation, even if it informed the person which concluded 
the contract with them (the travel agent). 
8 In addition to the provisions of the Regulation and the judgments of the Court of 
Justice relied on by the first and second-instance Czech courts, the applicants cited 
in support of their arguments the judgment of the Court of Justice in Case C-
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559/16, in which the concept of the ‘flight distance’ is explained, since a flight 
with a stopover is treated in that judgment as a single flight, together with, in 
particular, the Opinion of Advocate General Michal Bobek of … in Joined Cases 
C-274/16, C-447/[16] and C-448/16. That Opinion primarily deals with the issue 
of jurisdiction, but it also expressly addresses the application of Article 3(5) and 
Article 13 of the Regulation and concludes that the contractual air carrier cannot 
escape the contractual obligations agreed with the passenger by subcontracting a 
part of the transport service to another air carrier. In this sense, the legal position 
of the operating air carrier is derived from the legal position of the contractual air 
carrier. The contractual air carrier is the principal in such a situation and the 
operating air carrier the agent (see in particular points 75 to 77 of the Opinion). 
[OR 4] 
9 In the proceedings before the Městský soud v Praze (Prague City Court) after the 
referral back of the case, it was also definitively shown that the air carrier Etihad 
Airways is not a Community carrier within the meaning of Article 2(c) of the 
Regulation.  
10 In the case before it, the Městský soud v Praze (Prague City Court) has taken its 
decision on the basis that the dispute between the parties is to be settled 
exclusively on the basis of the Regulation which, under Article 288 TFEU, is 
binding and directly applicable. Moreover, the claim brought cannot succeed 
under national law either. Its nature is that of a claim for compensation in respect 
of non-material harm and the obligation to provide such compensation in the case 
of unlawful conduct does not as a general rule exist under Czech law but, pursuant 
to Paragraph 2894 of Law No 89/2012 (the new Civil Code) (Zákon č. 89/2012 
Sb. (… nový občanský zákoník)), only if that obligation is expressly agreed or if it 
is specifically provided for by law. The Civil Code thus provides for an obligation 
to pay compensation for non-material harm only in the event of an unlawful 
interference with the natural rights of an individual (Paragraph 2956), wilful or 
malicious damage to property (Paragraph 2969(2)), or further in the case of 
persons who legitimately perceive the harm (which may include harm other than 
to themselves) as a personal misfortune (Paragraph 2971), or in connection with 
package tours (damages in respect of disruption of the holiday – Paragraph 2543) 
or in the event of the serious infringement of the fundamental membership rights 
of a member of an association (Paragraph 261). It must be added in this 
connection that the provision for payment of damages in respect of the disruption 
of a holiday under Paragraph 2543 of the Civil Code is in general applicable 
against the tour organisers and liability is incurred in particular where the tour was 
frustrated or substantially reduced. That legislation comes closest to applying to 
the case in the main proceedings, but it regulates the obligations of the travel 
agent, not those of the carrier. There is also an obligation to pay damages for non-
material harm under Paragraph 3(2) of the Law on Business Corporations (Zákon 
o obchodních korporacích). It appears that such an obligation applies to situations 
where the illegality is based on the infringement of rules laid down by the Law on 
Business Corporations, in particular on the internal functioning of those 
corporations. Paragraph 31a of Law No 82/1998 (Zákon.č. 82/1998 Sb), which 
ČESKÉ AEROLINIE 
 
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provides for the obligation to pay compensation for non-material harm in the 
event of an unlawful decision or maladministration on the part of a public 
authority, is not applicable to the case either …. There is a lack of relevant case-
law from the Nejvyšší soud ČR (the Czech Supreme Court) applicable to the case 
before the referring court, which can be explained in part by the short period since 
the new Civil Code entered into force.  
11 Having regard to the above, the Městský soud v Praze (Prague City Court) 
concludes that the present claim under the Regulation for compensation in respect 
of non-material harm may be successful only if it is found that under the second 
sentence of Article 3(5) of the Regulation, in respect of a flight including a 
stopover, the contractual carrier (the defendant) is liable even for a delay which 
occurred in the flight leg operated not by that carrier but by a different carrier 
which is not a Community carrier. That court bases its reasoning on the fact that 
there may be several operating air carriers in the case of a flight including a 
stopover, each of which is the operating air carrier only for the leg of the flight 
which it actually performs (Article 2(b) of the Regulation). The objective of the 
Regulation, namely to ensure a high level of protection for passengers, supports a 
finding in favour of the liability of the contractual carrier, since if the air carrier 
operating a flight leg from an airport outside the EU is not a Community carrier, 
as in the present case, it is impossible to provide compensation under the 
Regulation (Article 3(1)(b) of the Regulation). Furthermore, the provision of 
compensation by the contractual air carrier naturally does not exclude the 
possibility of that carrier seeking redress from the operating air carrier (see Article 
13 of the Regulation). A finding against liability is supported by the fact that the 
Regulation, with the exception of the second sentence of Article 3(5) thereof, is 
based on the premise that it is the operating air carrier that bears any liability for 
damages. That is borne out by the case-law of the Bundesgerichtshof of the 
Federal Republic of Germany, according to which it is clear that, even by 
application of the second sentence of Article 3(5) of the Regulation, it is not 
possible to find the contractual carrier liable to pay damages. The differing case-
law of the Czech and German courts provides an argument in favour of unifying 
the case-law of the Court of Justice by means of a judgment. In these 
circumstances, the referring court thus, under Paragraph 109(1)(d) and Paragraph 
211 of the Czech Code of Civil Procedure (Občanský soudní řád) has stayed the 
proceedings before it and, under the second sentence of Article 267(b) TFEU, has 
referred the question set out in part II of the operative part of the present order to 
the Court of Justice of the European Union for a preliminary ruling.  
(Omissis) [Procedural aspect, guidance on the possibility of appeal] (Omissis) 
[OR 5] (Omissis)