Order;Information — ECLI:EU:C:2020:412
Date: 2020-05-28
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-153/19 — 1 
Case C-153/19 
Request for a preliminary ruling 
Date lodged: 
22 February 2019 
Referring court: 
Amtsgericht Köln (Germany) 
Date of the decision to refer: 
12 November 2018 
Applicant: 
FZ 
Defendant: 
DER Touristik GmbH 
  
[...]        Delivered on 12 November 2018 
[...] 
Amtsgericht Köln (Local Court, Cologne, Germany) 
Order 
in the proceedings 
FZ v DER Touristik GmbH 
the Amtsgericht Köln (Local Court, Cologne) 
[...] 
made the following order on 12 November 2018: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 12. 11. 2018 — CASE C-153/19 
 
2  
Anonymised version 
I.  The proceedings are stayed. 
II.  The following question is referred to the Court of Justice of the 
European Union for a preliminary ruling on the interpretation of Article 12 
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: 
Do a traveller’s claims against a travel organiser, under a contract for travel, 
for a price reduction because of shortcomings in the flight on account of a 
flight delay constitute claims to further compensation under Article 12 of 
[Regulation No 261/2004,] and can compensation granted as a result of the 
flight delay in application mutatis mutandis of Article 7 of the Regulation be 
deducted from those claims in accordance with Article 12 of that regulation? 
[Or. 2] 
Grounds 
I. 
By his claim against the defendant, a travel organiser, the applicant seeks a price 
reduction, compensation for loss of enjoyment of a holiday and damages. 
The applicant made a booking with the defendant for a holiday in Tenerife for 
himself and his wife, at the hotel H10 Gran Tinerfe, for the period from 2 July 
2017 to 12 July 2017. The total price of the holiday was EUR 2 809.00. The flight 
that was scheduled to depart from Frankfurt airport at 11.40 on 2 July 2017 with 
the airline Condor was delayed until 7.30 on 4 July 2017. The air carrier Condor 
paid compensation to the applicant under Article 7 of Regulation No 261/2004 in 
the amount of 2 x EUR 400.00. 
The applicant claims that he suffers from a chronic herpes condition and that his 
herpes condition had flared up on 5 July 2017 as a result of the substantial flight 
delay, so that he had had to seek treatment locally and be given an intramuscular 
injection on 7 July 2017. The herpes had also caused him pain. According to the 
applicant, the treatment costs he incurred in the amount of EUR 252.00 should be 
repaid to him. The applicant further claims compensation, on account of the pain 
and the delayed arrival at the destination, for loss of enjoyment of the holiday in 
the amount of EUR 300.00, as well as a price reduction of EUR 376.00, as he was 
unable to use the hotel for two nights of his booking. On the basis of a price per 
night of EUR 188.00, that would represent a reduction of EUR 376.00. 
The defendant contends that, as regards the price reduction, the applicant must 
allow the compensation payment of EUR 800.00 made by the airline to be 
deducted. [Or. 3] 
DER TOURISTIK 
 
3 
Anonymised version 
The success of the claim as regards the price reduction of EUR 376.00 now 
depends on whether the sum of EUR 800.00 paid by the air carrier pursuant to 
Article 7 of Regulation (EC) No 261/2004 of the European Parliament and of the 
Council of 11 February [2004] (‘the Regulation’) is to be deducted from the claim 
for reimbursement on account of the price reduction. 
1. 
The present case falls within the scope of the Regulation, since the flight to 
Tenerife of 2 July 2017 at issue in these proceedings was included in the package 
booked with the defendant and was to be performed by the air carrier Condor, 
which is established in Germany and which has obligations under Article 3(1)(b) 
of the Regulation. In accordance with the case-law of the Court of Justice of the 
European Union, the applicant is entitled to compensation under Article 7 in 
conjunction with Article 5 of the Regulation as a result of the delay of over 24 
hours in arrival. 
The delay in arrival also, however, constitutes a travel deficiency, and the 
applicant is therefore also entitled to a reduction under Paragraph 651d of the 
Bürgerliches Gesetzbuch (German Civil Code, ‘the BGB’) (old version). It is the 
old version of Paragraph 651d of the BGB that is applicable to the dispute in these 
proceedings. As from 1 July 2018, Paragraph 651m of the BGB applies to 
reductions, by virtue of the Drittes Gesetz zur Änderung reiserechtlicher 
Vorschriften (Third Law on the amendment of travel-law provisions) of 17 July 
2017, implementing the directive on package travel and linked travel 
arrangements, Directive (EU) 2015/2302 [(‘the Directive’)], which entered into 
force on 1 January 2016. The implementation of Article 14(1) of the Directive has 
not resulted in any legal changes with regard to the right to reimbursement on 
account of a reduction, as, to that extent, the European legislature also now 
proceeds on the basis that reductions are not fault-based. 
2. 
The question referred for a preliminary ruling is no less relevant with regard to the 
new legal position, however. Deductibility is determined by Article 12 of the 
Regulation, which is in any event directly applicable law in the Member States. 
[Or. 4] 
According to the case-law of the Court of Justice in the Aurora [Rodríguez] case 
(judgment of 13 October 2011, Sousa Rodríguez and Others, C-83/10), and in 
Nelson and Others (judgment of 23 October 2012, C-581/10), the loss of time for 
which compensation is to be paid under Article 7 of the Regulation represents an 
inconvenience that is suffered by all travellers in the same way and in respect of 
which immediate standardised measures are therefore justified. Fixed 
compensation for the loss of time suffered, without proof of individual damage, 
ensures that the intentions of the EU legislature, to provide a high level of 
REQUEST FOR A PRELIMINARY RULING OF 12. 11. 2018 — CASE C-153/19 
 
4  
Anonymised version 
protection for travellers, are met (judgment of 23 October 2012, Nelson and 
Others, C-581/10 and C-629/10, paragraphs 52 to 74). 
This standardised obligation to pay compensation does not preclude the 
passengers concerned from claiming further compensation under Article 12(1) of 
the Regulation, should the same delay also cause them individual damage. 
According to the case-law of the Court of Justice, under Article 12(1) of the 
Regulation compensation may be payable not only for the traveller’s material 
damage but also for his or her non-material damage (judgment of 13 October 
2011, Sousa Rodríguez and Others, C-83/10). According to the second sentence of 
Article 12(1) of the Regulation, the compensation granted may be deducted from 
further compensation claimed pursuant to the first sentence of Article 12(1) of the 
Regulation. 
According to the case-law of the Bundesgerichtshof (Federal Court of Justice, 
Germany) [...] a claim for reimbursement on account of a price reduction is a 
claim from which the [fixed] compensation granted is to be deducted in 
accordance with Article 12 of the Regulation. Article 12 of the Regulation is to be 
interpreted broadly as encompassing all forms of compensation resulting from the 
fact that the flight was delayed. A deduction would also be appropriate since the 
price reduction as a result of the delay represents compensation for the 
inconvenience caused by the delay. The deduction can therefore be made 
(pursuant to the national-law principle compensatio lucri cum damno) because of 
the common objective. Overcompensation through the accumulation of claims 
would, moreover, be prevented. 
In the implementation of the second sentence of Article 14(5) of Directive (EU) 
2015/2302, the German legislature adopted the same approach as that of the 
Bundesgerichtshof (Federal Court of Justice) by introducing Paragraph 651p(3) of 
the BGB. Note was taken in that regard of recital 36 of the Directive, from which 
it is clear that, in order to avoid overcompensation, compensation or a price 
reduction granted under the Directive [Or. 5] and the compensation or price 
reduction granted under other relevant EU legislation should be deducted from 
each other. The Federal Government’s explanatory memorandum on the draft 
legislation in relation to Paragraph 651p(3) of the BGB states in that regard that 
cumulative claims are to be strictly prohibited. What is decisive for the purposes 
of the deduction is, however, that the basis for liability is the same or that 
compensation is granted because of the same event. 
3. 
In the opinion of the referring court, there is insufficient certainty as to whether a 
compensation payment is deductible under Article 12 of the Regulation from a 
claim for reimbursement on account of a price reduction, having regard to the 
Court of Justice’s case-law to date and recitals 2 and 12 of the Regulation. The 
referring court considers that the legal nature and protective purpose of the 
reduction, as compared to the legal nature and protective purpose of rights to 
DER TOURISTIK 
 
5 
Anonymised version 
compensation under Articles 5 and 7 of the Regulation, are decisive. It is only if 
there is a common objective that a deduction may be made under Article 12 of the 
Regulation. Both claims arise under EU law and, as such, their interpretation is a 
matter for the Court of Justice alone. 
[Fixed] compensation payments under Article 7 of the Regulation constitute 
immediate standardised compensation for inconvenience caused by loss of time, 
which is granted without individual damage having to be claimed and irrespective 
of the price of travel. This fixed compensation closes a loophole in respect of 
inconvenience that does not meet the strict conditions of compensation for loss of 
enjoyment of a holiday, and which thus falls below the materiality threshold. The 
right to compensation is essentially of a non-material nature. 
Claims for reimbursement on account of a price reduction are granted if there has 
been a discrepancy between performance and consideration and the balance 
between the two has thus been disturbed. The traveller has received a service that 
does not correspond to the price of travel paid. As a result, the price is reduced to 
a lower value commensurate with the travel deficiency [Or. 6] (in practice, by 
fixing a certain percentage that is to be refunded). This claim must be 
characterised as substantive compensation. Contrary to the view of the 
Bundesgerichtshof (Federal Court of Justice), a price reduction because of 
deficient travel on account of a delay in arrival does not constitute compensation 
for inconvenience caused by the delay; this non-material damage is not in fact 
compensated by means of the reduction (see also Article 14(1) of the Directive). 
The claims do not have a common purpose. 
The view of the Bundesgerichtshof (Federal Court of Justice) is supported by the 
fact that acceptance of deductibility does, as a matter of fact, prevent 
overcompensation of travellers. The prohibition of unjust enrichment in the law of 
damages is a fundamental principle. The avoidance of overcompensation through 
an accumulation of claims under the Regulation and other law is also consistent 
with the intentions of the EU legislature, which are clear not only from the 
introduction of the second sentence of Article 12(1) of the Regulation, but also 
from recital 36 of the Directive and the [third] sentence of Article 14(5) of the 
Directive. The right to compensation under Articles 5 and 7 of the Regulation 
could therefore be interpreted as ‘compensation’ within the meaning of the [third] 
sentence of Article 14(5) of the Directive. The goal of avoiding overcompensation 
would not be consistently achieved if payment claims aimed at remedying the lack 
of reciprocity in the contract for travel because of the delay in arrival were not 
covered by the legislation. 
The history of the second sentence of Article 12(1) of the Regulation would 
suggest deductibility, as that sentence was incorporated into the Regulation 
precisely in order to clarify the relationship to the package holiday directive and 
questions of scope. There is an inherent risk of overcompensation given the 
identical aims of those legislative measures. It could be concluded from this that 
REQUEST FOR A PRELIMINARY RULING OF 12. 11. 2018 — CASE C-153/19 
 
6  
Anonymised version 
an overarching regime should be established in respect of all claims arising under 
the Regulation and the Directive. 
Deductibility may also be supported by the term ‘further compensation’ in the first 
sentence of Article12(1) of the Regulation, which, according to the case-law of the 
Court of Justice, encompasses any material or non-material damage. It might be 
concluded from this that the second sentence of Article 12(1) of the Regulation 
also encompasses the substantive reduction. A comparison of the various language 
versions of Article 12 of the [Or. 7] Regulation is not particularly compelling in 
that respect, however. The English term ‘compensation’ is admittedly understood 
as having a broader meaning (in the sense of the German term Entschädigung) 
than the German term Schadensersatz. However, it is clear from a comparison of 
the choice of terminology in the new and old versions of the directives that there 
is, to that extent, no rigorous use of the term. In the third sentence of Article 14(5) 
of the Directive, the German term Preisminderung is now explicitly used 
alongside Schadensersatz (in the English version: ‘price reduction’ alongside 
‘compensation’). However it cannot necessarily be concluded from this that the 
terms Schadensersatzanspruch/‘compensation’ in Article 12 of the Regulation are 
also intended to cover rights to a reduction. 
Support for the opposite view may be found in the fact that it is only if no 
deduction is made from the price reduction claimed that a traveller is fully 
compensated and that a high level of protection that is the objective of the flight 
passenger regulation can thus be guaranteed. That is because a price reduction 
represents economic compensation for a price/performance relationship that has 
been disturbed, and the payment of compensation represents compensation for the 
inconvenience associated therewith. A person who concludes a contract for travel 
and who has to bear the economic disadvantages of deficient travel would then be 
in a worse position than a person who — for example as an accompanying 
passenger — could claim the compensation payment but did not bear the 
economic disadvantage. The second sentence of Article 12(1) of the Regulation 
can, in the light of the first sentence, moreover, also be characterised as a 
derogation which, on account of the effet utile principle and having regard to the 
requirement of restrictive interpretation, must be interpreted narrowly. 
It is also necessary to consider whether the risk of overcompensation does in fact 
exist, or whether it should not be accepted that it does. It is clear, as a result of the 
case-law of the Court of Justice in the Nelson case, that passengers are to be 
entitled to standardised compensation because of the loss of time suffered 
irrespective of, and in addition to, any individual damage. This approach to 
compensation means that a deduction from compensation claims for non-material 
inconvenience seems plausible, since it is the same disadvantage that is being 
compensated here and, to that extent, overcompensation might arise. In the case of 
material claims/financial losses, however, it would be unreasonable to allow a 
deduction to be made, on account of the differing nature of the disadvantage and 
on account of the differing objectives of the claims. Accordingly, a differentiated 
approach should be adopted. That is borne out also by [Or. 8] recitals 2 and 12 of 
DER TOURISTIK 
 
7 
Anonymised version 
the Regulation, from which it is clear that cancellations and delays cause serious 
trouble and inconvenience to passengers, which the Regulation is intended to 
reduce, and it is precisely the non-material damage that is thus to be compensated. 
The Bundesgerichtshof (Federal Court of Justice) also assumes that a deduction 
(in the context of compensatio lucri cum damno) can be made only if the objective 
of the compensation claims is the same. It further notes that compensation 
payments under Article 7 of the Regulation and claims for a reduction may not 
necessarily be seeking compensation for the same disadvantages. These arguments 
would suggest a case-by-case assessment, so that differentiation would seem to be 
appropriate. 
[...]