Opinion of the Advocate General — ECLI:EU:C:2021:765
Date: 2021-09-23
Language of the case: German
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria;Germany

Anonymised version 
Translation  C-146/20 — 1 
Case C-146/20 
Request for a preliminary ruling 
Date lodged: 
20 March 2020 
Referring court: 
Landgericht Düsseldorf (Germany) 
Date of the decision to refer: 
17 February 2020 
Applicants and appellants: 
AD 
BE 
CF 
Defendant and respondent: 
Corendon Airlines 
  
C-146/20- 1 ORIGINAL  
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Landgericht Düsseldorf (Regional Court, Düsseldorf) 
Order 
In the case of 
EN 
REQUEST FOR A PRELIMINARY RULING OF 17. 2. 2020 — CASE C-146/20 
 
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1. Mr AD, [...] Ratingen, 
2. Mrs BE, [...] Ratingen, 
3. Child CF, [...] Ratingen, 
applicants and appellants, 
[...] 
v 
Corendon Airlines, [...] Muratpasa/Antalya, Turkey 
defendant and respondent, 
[...] 
On 17 February 2020, the 22nd Civil Chamber of the Regional Court, Düsseldorf 
[...] 
 
made the following order: 
The proceedings are stayed. 
The following questions on the interpretation of EU law are referred to the Court 
of Justice of the European Union pursuant to Article 267 TFEU: [Or. 2] 
1. Is there a cancellation of a flight within the meaning of Article 2(l) and 
Article 5(1) 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 (OJ 2004 L 46, p. 1) where 
the operating air carrier brings forward a flight, which has been booked 
as part of a package tour, from the scheduled departure time of 10.20 
(LT) to 8.40 (LT) on the same day? 
2. Is a notification, 10 days prior to the start of the journey, about the 
bringing forward of a flight from 10.20 (LT) to 8.40 (LT) on the same 
day an offer of re-routing within the meaning of Article 5(1)(a) and 
Article 8(1)(b) 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( OJ 2004 L 46, p. 1)?  
CORENDON AIRLINES 
 
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Grounds 
I. 
The applicants booked, through a travel agency, a package tour to Antalya, 
Turkey, offered by tour operator Öger Tours GmbH. They received a confirmed 
booking for the flight departing on 18 May 2018 from Düsseldorf to Antalya (CAI 
5408) with the defendant air carrier. The scheduled departure time was 10.20 (LT) 
and the scheduled arrival time 14.50 (LT). The defendant air carrier brought the 
flight forward to 8.40 (LT) on the same day, while maintaining the same flight 
number. The applicants, who were not there at the rescheduled departure time, 
booked flights to Antalya through their travel agency, spending EUR 380.44 for 
each of the first two applicants and a further EUR 318.44 for the third applicant. 
There is a dispute between the parties as to whether the applicants were informed 
by an email from the tour operator on 8 May 2018 that the flight had been brought 
forward. 
The applicants brought a claim against the defendant air carrier for compensation 
amounting to EUR 400.00 each pursuant to Article 5(1)(c) and Article 7(1)(b) of 
[Or. 3] Regulation (EC) No 261/2004 of the [European] Parliament and of the 
Council 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’) 
and for reimbursement of the costs incurred for the replacement flights plus 
default interest.  
The Amtsgericht (Local Court) dismissed the claim, stating that bringing the flight 
forward by 1 hour and 40 minutes does not constitute a cancellation of the flight 
within the meaning of Article 5(1)(c) and Article 7(1)(b) of the Air Passenger 
Rights Regulation. It referred to the press release of the Bundesgerichtshof 
(Federal Court of Justice) No 89/2015 on the judgment by consent of 9 June 2015 
[...], according to which there is a cancellation of a scheduled flight, which could 
give rise to a right to compensation, where that flight is brought forward by a 
period of time that is more than negligible. According to the Local Court, the 
bringing forward of a flight by 1 hour and 40 minutes in no way constitutes a 
bringing forward by a period of time that is more than negligible, whereby the 
original flight planning is abandoned. It is therefore irrelevant whether the 
applicants were informed in good time about the flight being brought forward. 
Owing to the absence of a contractual relationship between the parties, there is no 
discernible basis for entitlement to the costs incurred for the replacement flights.  
II. 
That does not stand up to legal scrutiny if the bringing forward of the flight by 
1 hour and 40 minutes implies the non-operation of that flight within the meaning 
of Article 2(l) of the Air Passenger Rights Regulation and the notification about 
REQUEST FOR A PRELIMINARY RULING OF 17. 2. 2020 — CASE C-146/20 
 
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the flight being brought forward does not constitute an offer of re-routing in 
accordance with Article 8 of the Air Passenger Rights Regulation.  
1. 
If it is found that there was a cancellation of the flight owing to it being brought 
forward, the applicants could be entitled to compensation under Article 5(1)(c) 
and Article 7(1)(b) of the Air Passenger Rights Regulation amounting to 
EUR 400.00 each if the passengers were not informed in good time for the 
purpose of Article 5(1)(c)(ii) of the Air Passenger Rights Regulation, which 
remains to be established. The defendant air carrier has not contended that there 
were extraordinary circumstances within the meaning of Article 5(3) of the Air 
Passenger Rights Regulation. [Or. 4] 
2. 
In addition, if it is accepted that there was a cancellation, the applicants could each 
have a claim for reimbursement of the costs incurred for the replacement flights 
under Paragraph 280(1) of the Bürgerliches Gesetzbuch (German Civil Code; ‘the 
BGB’) in conjunction with Article 5(1)(a) and Article 8(1)(b)(2) of the Air 
Passenger Rights Regulation. 
Under Article 8(1)(b) and (c) of the Air Passenger Rights Regulation, the 
operating air carrier is to offer passengers in the event of cancellation of a flight, 
besides reimbursement of the cost of the ticket, re-routing, under comparable 
transport conditions, to their final destination at the earliest opportunity or at a 
later date at the passenger’s convenience, subject to availability of seats. 
According to the facts, which are not disputed, the defendant did not offer the 
applicants — who only arrived at the airport in time for the original departure 
time — any (future) replacement flights and also did not fully inform them about 
all of the options provided for in Article 8(1) of the Air Passenger Rights 
Regulation (see judgment of the Court of Justice of the European Union 29 July 
2019, C-354/18 [...]).  
However, should the flight which was brought forward constitute the earliest 
possible re-routing in accordance with Article 8(1)(b) of the Air Passenger Rights 
Regulation, the defendant air carrier will have complied with its obligations with 
the result that the applicants have no claim for reimbursement of the costs of the 
replacement flights if they received the information about the flight being brought 
forward from the tour operator on 8 May 2018, which remains to be established.  
III. 
The success of the applicants’ appeal depends crucially on whether the bringing 
forward of the flight by 1 hour and 40 minutes implies the non-operation of that 
flight within the meaning of Article 2(l) of the Air Passenger Rights Regulation. 
Furthermore, in the event that the communication of 8 May 2018 was received, 
the issue is whether the notification about the flight being brought forward 
CORENDON AIRLINES 
 
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constitutes an offer of re-routing within the meaning of Article 8(1)(b) and (c) of 
the Air Passenger Rights Regulation.  
1. 
According to the legal definition in Article 2(l) of the Air Passenger Rights 
Regulation, ‘cancellation’ means the non-operation of a flight which was 
previously planned and on which at least one place was reserved. The ‘non-
operation’ of a flight which was previously planned is to be distinguished from a 
‘delay’ and is characterised by the fact that the planning for the original flight is 
abandoned (see judgment of the Court of Justice of the European Union of 
19 November 2009, C-402/07 and C-432/07, Sturgeon and Others v Condor and 
Böck and Others v Air France SA, [...] paragraphs 33 et seq.). It has not yet been 
clarified by the Court of Justice whether the planning [Or. 5] for a flight is to be 
regarded as abandoned if the flight is brought forward by 1 hour and 40 minutes.  
2. 
The comparable transport conditions under Article 8(1)(b) and (c) of the Air 
Passenger Rights Regulation relate to the flight which was originally booked and 
therefore to that contract of carriage by air. Another issue not yet clarified is 
whether a flight which has been brought forward by 1 hour and 40 minutes is 
comparable in that sense to the flight which was originally booked and constitutes 
the earliest possible re-routing, so that the defendant air carrier fulfils its 
obligations under that provision by providing notification 10 days prior to the start 
of the journey. 
IV. 
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