Judgment;Summary — ECLI:EU:C:2020:635
Date: 2020-09-03
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

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Translation C-530/19 – 1 
Case C-530/19 
Request for a preliminary ruling 
Date lodged: 
11 July 2019 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
17 June 2019 
Defendant, respondent and appellant on a point of law: 
NM, acting as insolvency administrator in the insolvency 
proceedings concerning the assets of NIKI Luftfahrt GmbH 
Applicant, appellant and respondent in the appeal on a point of law: 
ON 
      
As the court dealing with appeals on a point of law ... in the matter of the 
applicant ON, Guttaring, ... against the defendant NM, lawyer, Vienna ..., acting 
as insolvency administrator in the insolvency proceedings concerning the assets of 
NIKI Luftfahrt GmbH, in relation to the admission of insolvency claims ..., 
payment of EUR 18 916.51 plus interest and costs and a declaratory judgment ..., 
in the proceedings concerning the ... defendant’s appeal against the order of the 
Oberlandesgericht Wien (Vienna Higher Regional Court) as appeal court of 
14 February 2019, ... by which the judgment of the Landesgericht Korneuburg 
(Korneuburg Regional Court) of 21 November 2018 ... was set aside as a result of 
the applicant’s appeal and the case was remitted to the court of first instance for 
further consideration and a fresh decision, the Oberster Gerichtshof (Austrian 
Supreme Court), sitting in camera, makes the following [Or. 2] 
Order: 
EN 
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I The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. Is an air carrier which, under Article 5(1)(b) of Regulation (EC) 
No 261/2004 (the Flight Passenger Rights Regulation), is required to offer 
assistance under Article 9(1)(b) of that regulation liable on the basis of that 
regulation for damage resulting from an injury incurred by the passenger as a 
result of the negligent conduct of employees of the hotel provided by the air 
carrier? 
2. If Question 1 is answered in the negative: 
Is the air carrier’s obligation under Article 9(1)(b) of Regulation (EC) 
No 261/2004 limited to providing the passenger with a hotel and covering the 
costs of the accommodation, or is the air carrier liable for the accommodation as 
such? 
II. The proceedings are stayed pending receipt of the preliminary ruling 
pursuant to Paragraph 90a(1) of the Gerichtsorganisationsgesetz (Law on Court 
Organisation). 
Grounds: 
A. Facts 
The defendant lawyer is the insolvency administrator of an Austrian air carrier. 
That undertaking was required to operate a flight from Majorca to Vienna for the 
applicant resident in Austria [Or. 3] within the context of a package travel 
contract. As a result of the cancellation of that flight, a rebooking was made for 
the evening of the following day. For that reason, the undertaking was required to 
offer hotel accommodation under Article 5(1)(b), in conjunction with Article 
9(1)(b), of Regulation (EC) No 261/2004 (the Flight Passenger Rights 
Regulation). It performed that duty by accommodating the applicant in a local 
hotel. 
The applicant is confined to a wheelchair. On the following day, she went out with 
her husband, who pushed her in the wheelchair. Upon their return to the hotel, the 
front wheels of the wheelchair got caught in a transverse guttering channel in the 
asphalt of the pathway. The applicant fell forwards out of the wheelchair and was 
seriously injured. 
B. Arguments of the parties and forms of order sought 
The applicant is seeking compensation. She is firstly seeking to have her 
compensation claim applied for in the insolvency proceedings, but contested there 
by the defendant insolvency administrator, declared an insolvency claim, and is 
NIKI LUFTFAHRT 
 
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secondly requesting that the insolvency administrator be ordered to make payment 
on penalty of an enforcement action in the cover claim against the liability 
insurance of the air carrier. She argues that the accident occurred on the hotel 
premises and that the employees of the hotel operator had acted negligently, 
because they had neither removed the transverse gutter channel in the path nor 
otherwise rendered it safe. 
The defendant contends that no liability of the air carrier for negligent conduct of 
the employees of the hotel operator results from either Regulation (EC) 
No 261/2004 or national law. Rather, it is submitted, the Regulation precludes 
such liability, because the [Or. 4] air carrier’s duties are limited to offering 
accommodation. Liability based on national law would exceed the air carrier’s 
duty to assume responsibility. Furthermore, the hotel employees had not acted 
negligently; the applicant had to prove that the transverse gutter channel was 
located on the hotel premises and that it had not been made safe. 
C. Proceedings to date 
The court of first instance dismissed the action. The applicant, it ruled, could not 
derive any entitlement from Regulation (EC) No 261/2004, as the air carrier had 
been obliged only to provide accommodation; liability for consequential damage 
due to allegedly negligent conduct on the part of hotel employees did not result 
therefrom. National law also provided no basis for a claim, because there was no 
contractual relationship between the applicant and the air carrier and there was 
only limited vicarious liability in the non-contractual area; the applicant had not 
submitted any appropriate arguments in this respect. On the basis of that legal 
assessment, the court of first instance did not make any findings on the question of 
whether the accident had at all occurred on the hotel premises and whether hotel 
employees had acted negligently. 
The appeal court set that judgment aside and remitted the case to the court of first 
instance for a new decision following supplementary proceedings. 
In the specific case, the operating air carrier was under an obligation to provide a 
service pursuant to Article 9(1)(b) of Regulation (EC) No 261/2004. If it had not 
fulfilled that obligation, it would have had to reimburse the applicant for expenses 
incurred as a result within appropriate and reasonable limits. As a consequence of 
non-performance, this [Or. 5] claim results from the national law applicable under 
Article 12 of Regulation (EC) No 261/2004 in addition to that regulation. The 
same has to apply to the case alleged here of poor performance by the hotel 
operator (or employees thereof) appointed by the air carrier. Such poor 
performance also justifies a claim under national law, with the air carrier being 
liable under Austrian law for negligent conduct of the hotel employees. As the 
court of first instance, by reason of its different legal view, had not made any 
findings on the more detailed circumstances of the accident, the judgment under 
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appeal had to be set aside and the court of first instance ordered to supplement the 
proceedings. 
The Oberster Gerichtshof is required to rule on an appeal on a point of law 
brought by the defendant, by which she seeks restoration of the negative judgment 
delivered at first instance. The air carrier, it is argued, performed its duties under 
Article 9 of Regulation (EC) No 261/2004 by providing the accommodation free 
of charge. An application of national law based on Article 12 of Regulation (EC) 
No 261/2004 should not lead to further duties subsequently being imposed on the 
air carrier. However, that is the result of the view taken by the appeal court, 
because, in order to eschew liability, the air carrier would have had to check the 
hotel facilities offered thereby. Apart from that, it is argued, the comments of the 
appeal court regarding Austrian law are also incorrect for reasons set out in 
greater detail. 
D. Legal basis 
1. The air carrier’s obligation to provide assistance results from the following 
provisions of Regulation (EC) No 261/2004 [Or. 6] 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: 
Article 5: Cancellation 
1. In case of cancellation of a flight, the passengers concerned shall: […] 
(b) be offered assistance by the operating air carrier [...], in event of re-
routing when the reasonably expected time of departure of the new 
flight is at least the day after the departure as it was planned for the 
cancelled flight, the assistance specified in Article 9(1)(b) and 9(1)(c); 
[…] 
Article 9: Right to care 
1. Where reference is made to this Article, passengers shall be offered 
free of charge: 
(a)  [...] 
(b) hotel accommodation in cases 
– where a stay of one or more nights becomes necessary, or 
– where a stay additional to that intended by the passenger 
becomes necessary; 
... 
NIKI LUFTFAHRT 
 
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2. Article 12(1) of Regulation (EC) No 261/2004 provides as follows: 
Article 12: Further compensation 
1. This Regulation shall apply without prejudice to a passenger’s rights 
to further compensation. The compensation granted under this Regulation 
may be deducted from such compensation. [Or. 7] 
3. Paragraph 1313a of the Austrian Allgemeines Bürgerliches Gesetzbuch 
(General Civil Code; ABGB) reads as follows: 
Any party obliged to provide another party with a service shall be liable 
thereto for any fault on the part of its legal representatives and persons 
whom it employs for the performance to the same extent as for its own. 
E. Basis for the request 
1. Question 1 
1.1. The wording of Regulation (EC) No 261/2004 firstly provides only for the 
air carrier’s duty, in the case of the second alternative of Article 5(1)(b), to offer 
hotel accommodation free of charge. However, the Court of Justice has stated that 
non-performance of that duty gives the passenger a right to redress which cannot 
be classified as ‘compensation’ within the meaning of Article 12 of Regulation 
(EC) No 261/2004 (Court of Justice, C-83/10, Sousa Rodriguez and Others, 
paragraphs 43 and 44). The compensation may not exceed what is necessary, 
appropriate and reasonable under the specific circumstances to make up for the 
shortcomings of the air carrier in the provision of care (Court of Justice, C-12/11, 
McDonagh, paragraph 51). 
1.2. In the opinion of the present Chamber, it is clear from the Court of Justice’s 
comments that the claim in question is based directly on the Regulation. Recourse 
to bases for claims under national law is therefore not required (as also the widely 
prevailing opinion in the more recent German-language literature [...] [Or. 8] ...). 
1.3. If the non-performance of the duty of care leads to the passenger making a 
compensation claim directly on the basis of the Regulation, the case of poor 
performance being treated in the same way is not excluded. It might therefore be 
assumed that an air carrier which is required to offer hotel accommodation has to 
assume liability for defective performance on the part of the hotel operation 
appointed thereby directly on the basis of the Regulation. 
1.4. However, that opinion is countered by the fact that the compensation for 
non-performance (1.1. above) is to be regarded as equivalent to the non-provided 
service. This indicates a (secondary) claim based directly on the Regulation, 
including because failure to fulfil the primary claim would otherwise remain 
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without sanction under EU law. By contrast, the case of poor performance 
involves compensation for damage which goes beyond the expenditure for the 
accommodation and therefore comes under Article 12 of the Regulation according 
to the scheme thereof. Therefore, the claims in this regard would have to be 
assessed according to the applicable national law, apart from where an 
international convention applies. [Or. 9]  
1.5. It is, however, not excluded that the Court of Justice of the European Union 
– for instance with the aim of creating uniform framework conditions for all air 
carriers operating within the European Union (recital 4 of Regulation [EC] 
No 261/2004) – may equate poor performance with non-performance and, in this 
case too, assume a right to compensation directly on the basis of the Regulation. 
Point 1 of the request for a preliminary ruling serves to clarify this question. 
2. Question 2 
2.1. If the (alleged) misconduct of the hotel employees does not lead to a claim 
directly on the basis of the Regulation, it is necessary to examine whether there is 
a right to compensation within the meaning of Article 12 of Regulation (EC) 
No 261/2004. Whether that is the case is a matter to be assessed according to any 
applicable international convention, or otherwise according to the applicable 
national law. 
2.2. In the specific case, it is not disputed that the damage occurred outside of the 
care period under Article 17(1) of the Montreal Convention, which means that the 
compensation claim cannot in any event be based on that provision. There is also 
no damage occasioned by delay within the meaning of Article 19 of that 
Convention, because the applicant is not taking action against the air carrier due to 
a flight being delayed, but due to the defective provision of assistance under 
Regulation (EC) No 261/2004. Those services do not come within the scope of 
application of the Convention (Court of Justice, C-344/04, IATA, paragraphs 44 et 
seq., regarding assistance under Article 6 of Regulation [EC] No 261/2004). The 
same must apply to claims resulting from the non-performance or poor 
performance of such services. [Or. 10] 
2.3. If Question 1 is answered in the negative, a claim by the applicant could 
therefore result only from the applicable national law. As the matter has a 
cross-border element due to the damage having occurred in Spain, this law is to be 
determined according to the rules of private international law. In the specific case, 
it can be left open here whether the applicant’s claim is to be categorised as 
contractual or non-contractual, since all the relevant conflict-of-law rules point to 
Austrian law: If categorised as contractual (for claims directly based on the 
Regulation, Court of Justice, C-274/16, C-447/16 and C-448/16, flightright GmbH 
and Others), the application thereof would result from Article 5(2) of the Rome I 
Regulation (habitual residence of the applicant and place of destination of the 
transport in Austria), and if categorised as non-contractual from Article 4(2), in 
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conjunction with Article 23(1), of the Rome II Regulation (habitual residence of 
the applicant and the air carrier in Austria). An implied choice of this law under 
Article 3(1), in conjunction with Article 5(2), of the Rome I Regulation or under 
Article 14(2) of the Rome II Regulation could also be derived from the fact that 
both parties have submitted arguments regarding provisions of Austrian law .... 
2.4. Under Austrian law, the liability of the air carrier requires it to be possible 
for negligent conduct of the hotel employees to be attributed thereto. A possible 
basis for this is Paragraph 1313a of the ABGB, according to which any party 
obliged to provide another party with a service is to be liable for any fault on the 
part of those persons whom it employs for fulfilling that obligation. Although that 
provision primarily covers the breach of contractual duties, according to 
established case-law it is [Or. 11] also to be applied to the breach of duties 
resulting from a special legal relationship absent the existence of a contract .... 
Such a special relationship exists here on the basis of the duty of assistance under 
Article 5(1)(b), in conjunction with Article 9(1)(b), of Regulation (EC) 
No 261/2004. 
2.5. However, the conduct of a person will be attributed to the party owing the 
obligation only if that person is active in the performance of the duties incumbent 
on the party owing the obligation .... The actual duty of the air carrier in the 
specific case is therefore of decisive importance. As this duty results from Article 
5(1)(b), in conjunction with Article 9(1)(b), of Regulation (EC) No 261/2004, this 
is a question of EU law. In the opinion of the present Chamber, there are two 
possible interpretations: 
(a) On the one hand, the air carrier might be obliged only to organise the 
overnight stay, that is to say, to provide a hotel and cover the costs. The 
contracting partner of the hotel operator would in this case be the passenger 
himself, at most represented by the air carrier in the conclusion of the contract. In 
this case, the air carrier would be liable for fault only in the selection of the hotel; 
the passenger, by contrast, would have to assert claims for damages due to 
negligent conduct of hotel employees against the hotel operator. Fault in selection 
cannot be identified in the specific case, including in consideration of Article 9(3) 
of Regulation (EC) No 261/2004 (attention to the needs of persons with reduced 
mobility). The action would therefore have to be dismissed. [Or. 12] 
(b) On the other hand, it could be argued that the air carrier is liable for the 
accommodation as such. This accommodation could possibly take place in a hotel 
of the undertaking itself, or otherwise through the air carrier concluding contracts 
with third-party hotel operators for this purpose. In this case, the air carrier 
employed the hotel operator to perform its own duties. Under Austrian law, this 
would lead to liability for negligent conduct of the hotel employees, with the air 
carrier having to prove lack of fault in the case of an objective deficiency in the 
sphere of the hotel ..., since, according to established case-law, an independent 
undertaking and the employees thereof may also be persons whom a party 
employs to perform its own duties and therefore has to assume liability for any 
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fault on their part .... The liability would also not be excluded by the fact that the 
air carrier is unable to issue more detailed instructions to the hotel employees or to 
monitor their conduct .... 
2.6. However, in the opinion of the Oberster Gerichtshof, the interpretation that 
the air carrier is liable for the accommodation as such is also possible. 
Although the wording of Article 9(1)(b) of Regulation (EC) No 261/2004 requires 
only that hotel accommodation be ‘offered’, which could indicate a mere duty to 
provide a hotel and cover the costs, the Regulation, according to recital 1 thereof, 
pursues the objective of ensuring a high level of protection for passengers. Such a 
level of protection would [Or. 13] not be guaranteed if the air carrier in fact only 
had those limited duties, since in that case the passenger would be the contracting 
partner of the hotel operator and would have to bring compensation claims due to 
defective performance against the latter. The court for his place of habitual 
residence would then only be available thereto for this purpose, if the conditions 
of Article 17 of the Brussels Ia Regulation were met (direction of the activity of 
the hotel operator to the State of the consumer); otherwise the passenger would 
have to take action in the State of the hotel operator under Article 4 of the 
Brussels Ia Regulation. By contrast, the court with jurisdiction for the place of 
arrival is usually available for actions against the operating air carrier (Court of 
Justice, C-204/08, Rehder; most recently, C-274/16, C-447/16 and C-448/16, 
flightright GmbH and Others), which would make the pursuit of claims 
considerably easier. Conversely, the air carrier would not be disproportionately 
burdened by a duty to pay damages, because it would in any event not ultimately 
have to bear the loss in the case of liability, but could take recourse in accordance 
with its contract with the hotel operator. As the passenger had to stay overnight in 
the hotel provided by the air carrier only because of an (at least objective) 
deficiency in the sphere of the latter, it would seem logical to impose the risk of 
foreign proceedings and the recoverability of a recourse claim on the undertaking 
and not on the passenger. 
2.7. Liability under Austrian law thus depends on the preliminary question under 
EU law as to the extent of the air carrier’s duties under Article 5(1)(b), in 
conjunction with Article 9(1)(b), of Regulation (EC) No 261/2004. This is 
intended to be clarified by Question 2. 
C. Procedure [Or. 14] 
1. There is no acte clair or case-law of the Court of Justice of the European 
Union in respect of either Question 1 or Question 2. The Oberster Gerichtshof, 
qua court of last instance, therefore has an obligation to refer. 
2. The proceedings concerning the appeal brought by the applicant are to be 
stayed pending the ruling by the Court of Justice of the European Union. 
...