Information;Order — ECLI:EU:C:2021:312
Date: 2021-04-22
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Germany

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Translation  C-592/20 – 1 
Case C-592/20 
Request for a preliminary ruling 
Date lodged: 
11 November 2020 
Referring court: 
Landgericht Düsseldorf (Germany) 
Date of the decision to refer: 
18 September 2020 
Applicants: 
NT 
RV 
BS 
ER 
Defendant: 
British Airways plc 
  
[…] Landgericht Düsseldorf 
(Regional Court, Düsseldorf) 
Order 
In the case 
NT and Others v British Airways plc 
EN 
REQUEST FOR A PRELIMINARY RULING OF 18. 9. 2020 – CASE C-592/20 
 
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the 22nd Civil Chamber of the Landgericht Düsseldorf (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 for a preliminary ruling pursuant to point (b) of 
the first paragraph and the third paragraph of Article 267 TFEU: 
1. Must Article 2(b) of Regulation (EC) No 261/2004 be interpreted as 
meaning that an air carrier which, in the context of connecting flights 
booked under a single reservation with another air carrier as the contracting 
party (‘the contractual air carrier’), is scheduled to operate only the second 
of two legs of a journey is to be regarded as the ‘operating air carrier’ for the 
entire journey if the first leg is operated on time by the contractual air carrier 
and the flight forming the second leg is cancelled by the other air carrier? 
[Or. 2] 
2. If the first question is answered in the affirmative, does the non-contractual 
air carrier, which was due to operate only the cancelled leg of the flight, owe 
the passenger, in that event, compensation, as provided for in Article 7(1) of 
that regulation, in an amount based on the distance over the entire route 
between the first point of departure and the final destination? 
I 
The applicants NT, RV, BS and ER are pursuing against the defendant, British 
Airways plc, claims for compensation for a flight cancellation, under Regulation 
(EC) No 261/2004 (‘the Regulation’), and exemption from pre-litigation legal 
fees. 
The applicants booked, inter alia, a return flight from Los Angeles to Düsseldorf 
via London on 23/24 July 2017 with the air carrier Virgin Atlantic Airways 
through the travel agency Magic Tours Demir in Dinslaken. The flight from Los 
Angeles to London (flight No VS 024) was scheduled to take off at 21.10 local 
time on 23 July 2017 and land at 15.25 local time on 24 July 2017. The 
connecting flight from London to Düsseldorf (flight No BA 944) was scheduled to 
take off at 17.25 local time on 24 July 2017 and land at 19.50 local time. The 
feeder flight from Los Angeles to London was operated on time by Virgin 
Atlantic Airways. The connecting flight from London to Düsseldorf, which was 
due to be operated by the defendant, was cancelled. Travelling on an alternative 
flight offered by the defendant, the applicants did not reach Düsseldorf until the 
following day, 25 July 2017. 
BRITISH AIRWAYS 
 
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Measured by the ‘great circle’ method, the flight distance between Los Angeles 
and Düsseldorf is 8 983 kilometres. Measured by the ‘great circle’ method, the 
distance between London and Düsseldorf is 503 kilometres. 
The applicants are seeking from the defendant compensation in the amount of 
EUR 600.00 per person, that is to say, in total, EUR 2 400.00 plus interest, and 
exemption from pre-litigation legal fees in the amount of EUR 334.75. [Or. 3] 
The applicants take the view that they are entitled to compensation in the amount 
of EUR 600.00 per person under Article 7(1)(c) of the Regulation. In their 
submission, the defendant is liable for the entire Los Angeles-Düsseldorf leg, even 
though it does not have a contractual relationship with the applicants and was due 
to operate only the London-Düsseldorf leg, using its own aircraft and staff. 
The defendant, on the other hand, considers that it is liable for the London-
Düsseldorf leg of the journey at most and, therefore, owes compensation in the 
amount of only EUR 250.00. 
By judgment of 3 February 2020, […] the Amtsgericht Düsseldorf (Local Court, 
Düsseldorf) partially granted the action at first instance by making an award in the 
amount of EUR 250 per applicant, that is to say, in total, EUR 1 000 plus interest, 
and dismissed the action as to the remainder. 
That judgment, served on the applicants on 10 February 2020, was appealed by 
them […] […] [procedure]. 
On appeal, the applicants maintain the heads of claim put forward at first instance 
and claim that the court should, 
by partially varying the judgment of the Amtsgericht Düsseldorf 
(Local Court, Düsseldorf) […] of 3 February 2020, find against the 
defendant and order it to pay each of the applicants a further EUR 350 
plus interest in the amount of five percentage points above the base 
rate with effect from 16 September 2017. 
The defendant contends that the court should 
dismiss the appeal. 
[…] [reference to the documents before the court] [Or. 4]  
II 
The success of the applicants’ appeal turns crucially on the questions set out 
above: 
Articles 5(1)(c) and 7(1)(c) of the Regulation confer on the applicants a right to 
obtain from the defendant further compensation in the amount of EUR 350 each 
only in the event that the defendant is to be regarded as the ‘operating air carrier’, 
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within the meaning of Article 2(b) of the Regulation, in relation to the entire Los 
Angeles-Düsseldorf route and not in relation to the London-Düsseldorf leg alone. 
The foregoing could be precluded by the fact that the defendant is not linked to 
the applicants by a contract of air carriage and was due to operate only the 
London-Düsseldorf leg of the journey, using its own aircraft and staff. 
1. 
In Case C-502/18, CS and Others v České aerolinie, the Court of Justice of the 
European Union held that, in the case of connecting flights, where there are two 
flights that are the subject of a single reservation, departing from an airport 
located within the territory of a Member State and travelling to an airport located 
in a non-Member State via the airport of another non-Member State, a passenger 
who suffers a delay in reaching his or her destination of 3 hours or more, the cause 
of that delay arising in the second flight, operated, under a code-share agreement, 
by a carrier established in a non-Member State, may bring his or her action for 
compensation under that regulation against the Community air carrier that 
performed the first flight. In that case, the passengers had each booked a flight 
from Prague to Bangkok via Abu Dhabi with the air carrier České aerolinie. The 
first of those flights, operated by České aerolinie between Prague and Abu Dhabi, 
was carried out according to the flight plan and the plane arrived on time at its 
destination. However, the second flight, operated, under a code-share agreement, 
by Etihad Airways, and connecting Abu Dhabi and Bangkok, arrived 488 minutes 
[Or. 5] late. The Court held that the air carrier České aerolinie is liable to pay 
compensation to the passengers for the delay at the final destination, even though 
it operated only the feeder flight, which was not itself delayed, and the delayed 
connecting flight was operated by another air carrier under a code-sharing 
agreement (see the judgment of the Court of Justice of 11 July 2019 in Case 
C-502/18, CS and Others v České aerolinie …). 
In its reasoning in CS and Others v České aerolinie, the Court of Justice stated 
that the definition of an ‘operating air carrier’ in Article 2(b) of the Regulation 
sets out two cumulative conditions which must be satisfied if an air carrier is to be 
regarded as an ‘operating air carrier’, relating, first, to the performance of the 
flight in question and, second, to the existence of a contract with a passenger. In 
that case, České aerolinie did perform a flight under a contract of carriage with the 
passengers concerned. Consequently, that carrier must be categorised as the 
‘operating air carrier’ and therefore was liable to pay the compensation provided 
for in Article 7(1) of the Regulation. Such findings could not be called into 
question by the fact that the cause of the delay which the passengers concerned in 
the main proceedings had to suffer was not in the first of the flights, performed by 
České aerolinie, but in the second of the connecting flights, performed by another 
air carrier. For it must be observed, first, in that regard, that, as is apparent from 
the comments above, flights with one or more connections that are the subject of a 
single reservation must be regarded as a single unit, which implies that, in the 
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context of such flights, an operating air carrier that has operated the first flight 
cannot take refuge behind a claim that the performance of a subsequent flight 
operated by another air carrier was imperfect. Moreover, Article 3(5) of the 
Regulation provides that, where an operating air carrier which has no contract 
with the passenger performs obligations under that regulation, it is to be regarded 
as doing so on behalf of the person having a contract with that passenger. The 
Court of Justice further reasons that the air carrier against which a claim has been 
made has the option to seek redress under Article 13 of the Regulation (judgment 
of the Court of Justice of 11 July 2019 in Case C-502/18, CS and Others v České 
aerolinie, … paragraphs 23 et seq., 31 to 32). 
The above reasoning of the Court of Justice supports the view that an operating air 
carrier which performs one leg of a flight consisting of a number of legs which is 
booked under a single reservation must be accountable for disruptions throughout 
the journey, even where these occurred on another leg operated by an air carrier 
other than that against which a claim has been made. According to the arguments 
set out above, the question whether the air carrier against which a claim has been 
made is the contractual air carrier with which the entire flight was booked under a 
single reservation, is immaterial. The fact that the defendant in the present case 
was due to operate at least one leg (London-Düsseldorf) of a multi-leg flight 
booked under a single reservation with Virgin Atlantic Airways and that leg was 
the subject of a cancellation leading to a long delay in arrival at the final 
destination, Düsseldorf, would indicate that the defendant, as the ‘operating air 
carrier’, is liable for the delay to the entire journey. 
Moreover, in Case C-939/19, flightright v Eurowings, the Court of Justice held 
that, in order to determine the amount of compensation for long delays in the case 
of air transport services consisting of two or more flights booked by a passenger 
as a single reservation, the total distance from the point of departure of the first 
flight to the final destination must be taken into account, even if only the last 
flight was delayed (see the order of the Court of Justice of 30 April 2020 in Case 
C-939/19, flightright v Eurowings […]). 
2. 
By contrast, at certain points in the judgment in CS and Others v České aerolinie, 
the Court of Justice expressly takes into account the fact that České aerolinie is the 
‘contractual air carrier’ with which the passengers in question made a single 
reservation. Thus, in the grounds of its judgment, it has regard, moreover, to the 
fact that, in the case of connecting flights booked under a single reservation, the 
contractual air carrier ‘remains subject to contractual obligations to the 
passengers’ in relation to the entire journey, even in relation to the second leg, 
which it did not itself operate. 
Lastly, the Court of Justice also reasons that it is important to ensure a high level 
of protection for passengers. The approach taken by the Court of Justice thus 
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makes it possible to ensure that passengers carried will receive compensation from 
the operating air carrier with which they have entered into the contract of carriage, 
irrespective of the arrangements which that carrier has made in relation to the 
operation of the second of the connecting flights. The latter considerations 
indicate that an operating air carrier may be held liable for the entire journey only 
where that carrier is the contractual air carrier with which the entire flight was 
booked under a single reservation. Since the defendant was not the contractual air 
carrier and operated only one leg of the journey, it would thus be liable, at most, 
for the leg which it cancelled. 
3. 
One view is that the case-law established by the Court of Justice in CS and Others 
v České aerolinie is to be interpreted as meaning that any operating air carrier 
operating one leg of a multi-leg flight booked under a single reservation must be 
liable for the delay to the entire journey, irrespective of whether it is the 
contractual air carrier and irrespective of which leg is the subject of the disruption 
([…] references by the Court of Justice to the contractual air carrier are made only 
‘for the sake of completeness’). According to another view, the case-law of the 
Court of Justice concerns only the special situation of a third-country code-sharing 
partner which would otherwise pose a risk of circumvention of Regulation (EC) 
261/2004 […]. Yet another view is that the passenger has the right to choose 
whether the contractual air carrier is liable for the entire journey, the non-
contractual air carrier operating a leg of the journey is liable only for that leg, or 
the two carriers should be jointly and severally liable […]. […] Advocate General 
Tanchev stated in his Opinion of 6 June 2018 in Case C-186/17, […] point 48, 
that he inclines towards the view taken by Advocate General Sharpston in 
Sturgeon ‘that “the criterion for compensation [under Article 7(1) of the 
Regulation] should not be causation, but fault (broadly defined) on the part of the 
operator”’. That case concerned whether an air carrier which operates the first in a 
chain of flights is required to pay a passenger compensation under Article 7 of the 
Regulation where the first flight is only slightly delayed, but that passenger 
reaches his final destination with a long delay. Advocate General Tanchev 
answered that question in the affirmative. 
Since, so far as can be gleamed, the Court of Justice has not yet answered these 
questions, and since the interpretation of the Regulation is unclear for the 
purposes of the acte clair doctrine, it is necessary to refer the case to the Court of 
Justice pursuant to Article 227 TFEU.