Opinion of the Advocate General — ECLI:EU:C:2023:154
Date: 2023-03-02
Language of the case: German
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

Anonymised version 
Translation C-49/22 – 1 
Case C-49/22 
Request for a preliminary ruling 
Date lodged: 
24 January 2022 
Referring court: 
Landesgericht Korneuburg (Austria) 
Date of the decision to refer: 
4 January 2022 
Appellant, and defendant at first instance: 
Austrian Airlines AG 
Respondent, and applicant at first instance: 
TW 
  
[…] 
The Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), sitting as 
an appellate court, […] in the case of the applicant, TW, […] versus the defendant 
Austrian Airlines AG, […] Vienna Airport, […] concerning EUR 1 000.00 […], 
on appeal by the defendant against the judgment of the Bezirksgericht Schwechat 
(District Court, Schwechat, Austria) of 13 April 2021, 26 C 276/20p-12, […] has 
made the following order: 
[I] The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling under Article 267 TFEU: 
(1) Must 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 (Air Passenger Rights Regulation) be interpreted as 
EN 
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meaning that a repatriation flight operated in the exercise of the State’s sovereign 
activity is also to be regarded as re-routing, under comparable transport 
conditions, to the final destination – as must be offered by the operating air carrier 
in the event of cancellation – where the operating air carrier cannot establish legal 
entitlement to transport the passenger but could register the passenger for that 
purpose and bear the costs and, by virtue of a contractual agreement with the 
State, ultimately operates the flight with the same aircraft and at the same flight 
times as scheduled for the flight originally cancelled? 
(2) Must Article 8(1) of the Air Passenger Rights Regulation be interpreted as 
meaning that a passenger who registers himself or herself for a repatriation flight 
as described in Question 1 and who makes an obligatory contribution to costs to 
the State for that flight has a claim for reimbursement of those expenses against 
the air carrier, arising directly from the Air Passenger Rights Regulation, even if 
the costs do not consist exclusively of purely flight-related costs? 
[II] […] [stay of proceedings] 
GROUNDS: 
A. Facts 
The defendant is an Austrian air carrier. The applicant and his wife each had 
confirmed bookings for the flights OS 17 on 7 March 2020 from Vienna (VIE) to 
Mauritius (MRU) and OS 18 on 20 March 2020 from Mauritius (MRU) to Vienna 
(VIE), both flights being operated by the defendant. The two flights formed part 
of a package holiday for the applicants. 
While flight OS 17 was operated as scheduled, the defendant cancelled flight OS 
18 on 18 March 2020 due to the COVID-19 pandemic and the measures taken by 
the Austrian Federal Government in connection therewith. Although it had the 
contact details of the applicant and his wife, it did not contact them and 
accordingly did not inform them of their rights under Article 8(1) of the Air 
Passenger Rights Regulation. It was only on 19 March 2020 that the applicant and 
his wife received a call from the tour operator informing them of the cancellation 
and of a repatriation flight planned for 20 March 2020 by the Austrian Ministry of 
Foreign Affairs. No other scheduled flights were being operated at that time. 
The applicant and his wife registered online for that flight on the website of the 
Ministry of Foreign Affairs. They each paid an obligatory contribution to costs of 
EUR 500 to the Ministry of Foreign Affairs. The flight was operated by the 
defendant under flight number OS 1024, at the same time as flight OS 18 had been 
scheduled. The defendant itself had no possibility to rebook passengers onto that 
repatriation flight, but could have registered the passengers on the website of the 
Ministry of Foreign Affairs and reimbursed the costs. The defendant received an 
undeterminable share of the EUR 500 that each passenger was required to pay. 
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The applicant’s wife assigned to him her claims arising from the cancellation of 
flight OS 18. 
B. Arguments of the parties and forms of order sought 
By action of 14 September 2020, the applicant initially claimed EUR 900, plus 
interest. He submitted that flight OS 18 had been operated by the defendant, but 
had been ‘double-charged’ for an amount of EUR 900. In a preparatory statement 
of written observations of 27 January 2021, the applicant increased his claim to 
EUR 1 000 plus interest, now arguing that, although the defendant had cancelled 
flight OS 18, it then operated it ‘disguised as a government plane’, for which the 
passengers had to pay an amount of EUR 500 each. Therefore, according to the 
applicant, the flight had been operated, but had been ‘double-charged for an 
amount of EUR 500’. Contrary to Article 8(1)(b) of the Air Passenger Rights 
Regulation, the defendant not only did not offer or organise re-routing, but it even 
charged for the transport organised by the applicant himself. Since it breached its 
obligations under EU law in that regard, it was liable for the damage suffered by 
the applicant as a result of the fact that he had to find alternatives and solutions at 
his own expense. 
The defendant sought the dismissal of the action, contested the claim, and 
responded by stating, in essence, that flight OS 18 had to be cancelled due to the 
COVID-19 pandemic. According to the defendant, the applicant reached his final 
destination through a repatriation operation carried out by the Ministry of Foreign 
Affairs; it did not itself charge him for this. The booking for flight OS 18 was 
made as part of a package tour; the applicant has not provided evidence of the 
ticket price for that booking, with the result that the claim is flawed. The 
defendant submits that the tour operator had not provided it with the applicant’s 
contact details. The repatriation flight is not an alternative flight within the 
meaning of Article 3(3) of the Air Passenger Rights Regulation, because the fare 
for the flight was not available to the public. Other scheduled flights were not 
available. The Ministry of Foreign Affairs bore sole responsibility for the decision 
as to who was to be carried on the repatriation flight; therefore, the defendant 
itself was not able to rebook the applicant onto that flight. 
C. Procedure to date 
The court of first instance granted the principal claim in its entirety; it dismissed 
without challenge a minor additional claim for interest. It established the facts as 
summarised above and concluded, from a legal point of view, that the defendant 
had cancelled flight OS 18 and was obliged under Article 5(1)(a) of the Air 
Passenger Rights Regulation to offer assistance within the meaning of Article 8 of 
that regulation. According to that court, in the event of a breach of that obligation, 
passengers are entitled to assert a claim for compensation arising directly from EU 
law. The defendant failed to discharge its obligations by not informing the 
passengers of the cancellation and the choice offered to them under Article 8 of 
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the Air Passenger Rights Regulation, and it is liable for the damage suffered, in 
the amount of EUR 500 per passenger. The court stated that the declaration of 
assignment covers the assertion by the applicant of his wife’s claims. Even if fault 
on the part of the defendant were necessary for the assertion of the claim for 
compensation, the defendant was at fault because it did not itself register the 
passengers on the website of the Ministry of Foreign Affairs or assume the costs 
of the repatriation flight. 
The defendant’s appeal is directed against that decision, with the request that the 
contested judgment be altered to the effect that the action is dismissed; in the 
alternative, an application for annulment is filed. To the extent relevant for the 
preliminary ruling procedure, the appellant submits that it cannot be accused of 
culpable conduct with a causal link with the damage suffered by the passengers. It 
claims that it did not have the possibility to rebook the passengers. Scheduled 
flights were no longer being operated and the repatriation flight did not constitute 
re-routing within the meaning of Article 8 of the Air Passenger Rights Regulation, 
because it was not able to influence the rebooking of passengers onto that flight. 
Rather, the flight was a sovereign measure taken by the State to bring citizens 
back home. According to the appellant, requiring an air carrier to register 
passengers for such flights exceeds its duty of care. Moreover, the EUR 500 per 
passenger is not a regular transport charge, but a contribution to costs that is 
charged by the Republic of Austria. The passengers would have had to pay the 
contribution to costs even if the defendant had informed them of the repatriation 
flight organised by the Ministry of Foreign Affairs. Even if that payment were to 
be regarded as damage, however, the event that caused the damage was the 
cancellation of flight OS 18. This, in turn, was necessary because of the COVID-
19 pandemic and cannot be held against the appellant. 
In his response to the appeal, the applicant requests that the appeal be dismissed. 
He argues, in essence, that the view taken by the court of first instance is correct. 
The referring court, sitting as an appellate court, is called on to rule on the 
applicant’s claims at second and final instance. In so doing, it must confine itself 
to examining questions of law, on the basis of provisions laid down in national 
procedural law. 
D. Legal basis 
The air carrier’s obligation to provide assistance arises from the following 
provisions of the Air Passenger Rights Regulation: 
Article 5 – Cancellation 
1. In case of cancellation of a flight, the passengers concerned shall: 
[…] 
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(a) be offered assistance by the operating air carrier in accordance with 
Article 8; and 
Article 8 – Right to reimbursement or re-routing 
1. Where reference is made to this Article, passengers shall be offered the 
choice between: 
(b) re-routing, under comparable transport conditions, to their final 
destination at the earliest opportunity; 
E. Reasoning in the request for a preliminary ruling 
Question 1 
As a preliminary point, it should be stated that the provision of assistance in 
supporting and repatriating people in emergencies is, as part of consular 
protection, one of the consular tasks of the Republic of Austria (point 5 of 
Paragraph 3(2) of the Konsulargesetz (Consular Law; ‘the KonsG’)). The 
performance of such tasks is a sovereign activity of the State (see RIS-Justiz 
RS0132961). The defendant air carrier participated in that task as a contractual 
partner of the Republic of Austria, but had no influence on the decision-making of 
the latter. 
The outcome of the dispute therefore hinges on the correct interpretation of the 
words ‘offered’ in Article 5(1)(b) of the Air Passenger Rights Regulation and ‘re-
routing’ in Article 8(1)(b) thereof. 
The word ‘offered’ in Article 5(1)(b) of the regulation might be understood to 
mean that, although the operating air carrier is not obliged to provide the 
alternative transport itself, it must provide the passenger with legal entitlement to 
carriage which is enforceable against another air carrier. This is in line with the 
view expressed by some authors in the legal literature, according to which the air 
carrier must purchase tickets for the replacement flight and make them available 
to the passenger […]. Article 2(f) of the Air Passenger Rights Regulation defines 
‘ticket’ as a valid document giving entitlement to transport, […] issued or 
authorised by the air carrier or its authorised agent. 
This is the crux of the appellant’s argument that it was not in a position to provide 
the passengers with such legal entitlement in the present case. 
If the operating air carrier’s obligation relates to the provision of legal entitlement, 
but it cannot provide such entitlement, it might be argued that a failure to take 
other measures, such as, in the present case, the registration of passengers for a 
repatriation flight, does not constitute a breach of the duties of assistance under 
Article 8 of the Air Passenger Rights Regulation and, consequently, there is also 
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no connecting factor for a right to compensation within the meaning of the 
decision of the Court of Justice in Case C-83/10, Rodriguez v Air France. 
However, the referring court considers that there are also arguments militating in 
favour of the view that the obligation under Article 8(1)(b) of the Air Passenger 
Rights Regulation is not limited to cases in which the air carrier can provide such 
legal entitlement. 
On the one hand, the Court of Justice has stated, with regard to Article 9(1)(b) of 
the Air Passenger Rights Regulation, that that provision does not establish detailed 
rules governing the contractual relationships that may arise from the 
implementation of that obligation (C-530/19, NM v ON [paragraph 28]). 
Therefore, the Court of Justice ultimately found that the air carrier is not obliged 
under EU law to take care of the accommodation arrangements as such. Given that 
the two provisions pursue the same objective, that outcome could be transferred to 
the present case. Accordingly, it would appear to be correct that the air carrier’s 
obligations are not limited to providing the passenger with a direct claim against a 
third party. 
On the other hand, when interpreting the Air Passenger Rights Regulation, the 
Court of Justice has repeatedly referred to the objective following from recital 1 
thereof to ensure a high level of protection for passengers, (C-74/19, TAP 
[paragraphs 54 and 58]; C-826/19, WZ v Austrian Airlines AG [paragraphs 26 and 
27]). The obligation to provide replacement transport at the earliest possible 
opportunity now includes not only the obligation to offer it, but also to bear the 
costs for it. It is true that the passenger is not obliged to contribute actively to 
seeking adequate replacement transport (C-354/18, Rusu [paragraph 55]). 
However, if the passenger nevertheless does so and is able to obtain replacement 
transport under comparable conditions, which the air carrier itself could not have 
provided to him or her, it would be contrary to the objective of ensuring a high 
level of protection if the air carrier’s obligation to bear the costs of replacement 
transport ceased to exist for that reason alone. 
Ultimately, however, the decision also depends on whether a repatriation flight 
organised by the State is to be regarded as ‘re-routing, under comparable transport 
conditions’ within the meaning of Article 8(1)(b) of the Air Passenger Rights 
Regulation. 
In that regard, the referring court takes the view that the element ‘comparable 
travel conditions’ relates first and foremost to the factual circumstances of the 
journey, such as the means of transport used, the scheduled departure and arrival 
times and the itinerary. It therefore has no doubts as to the fact that the flight at 
issue in the present case was operated under comparable conditions. 
However, the appellant argues that there is no re-routing within the meaning of 
Article 8(1)(b) of the Air Passenger Rights Regulation because the repatriation 
flight was operated at a fare which is not available directly or indirectly to the 
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public and is therefore not subject to the regulation in accordance with 
Article 3(3) thereof. 
The referring court does not consider that argument to be convincing either. It 
should be noted that Article 8(1)(b) of the Air Passenger Rights Regulation refers 
only to ‘re-routing, under comparable transport conditions, to their final 
destination’. It cannot be inferred from that provision that only flights which are 
themselves subject to the regulation enter into consideration as replacement 
transport. It is true that the Court of Justice has held that a flight which is offered 
to passengers as replacement transport in accordance with Article 8(1) of the Air 
Passenger Rights Regulation and is accepted by them also falls within the scope of 
that regulation (C-832/18, Finnair). However, that finding was made in a case 
where the passengers were actually re-booked onto another scheduled flight. 
Therefore, it cannot be clearly understood to mean that replacement transport 
would in any event have to be provided in the form of a flight falling within the 
scope of the regulation. 
Question 2 
The Court of Justice has already ruled that when a carrier fails to fulfil its 
obligations under Articles 8 and 9 of the Air Passenger Rights Regulation, air 
passengers are justified in claiming a right to compensation on the basis of the 
factors set out in those articles, which is not based on national law on 
compensation (C-83/10, Sousa Rodriguez (Air France [paragraph 43 et seq.]). 
With regard to Article 9(1)(b) of the Air Passenger Rights Regulation, the Court 
of Justice has already ruled that the passenger’s right to reimbursement is 
determined according to the criteria of necessity, appropriateness and 
reasonableness (C-12/11 [paragraph 66], McDonagh v Ryanair, C-530/19, NM v 
ON [paragraph 36]). 
The referring court proceeds on the assumption that the same criteria must also be 
applied to a right to reimbursement in the event of failure to discharge the 
obligation under Article 8(1)(b) of the Air Passenger Rights Regulation. 
Accordingly, in a case such as the present one, the air carrier would have to 
reimburse those costs in their entirety, even if they do not relate exclusively to the 
transport per se. 
It appears to the referring court that that interpretation is possible in so far as it is 
the most likely to contribute to achieving the objectives pursued by Article 8(1)(b) 
of the Air Passenger Rights Regulation, namely that the passenger reaches his or 
her destination as soon as possible […]. Otherwise, passengers who, for whatever 
reason, were able to organise adequate alternative transport which was in fact 
impossible for the air carrier to organise could find themselves in the situation of 
not being able to use that transport because of the costs that they would have to 
bear themselves. 
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F. Matters of procedural law 
[…] [statements regarding matters of procedural law] 
[…] [stay of proceedings] 
Regional Court, Korneuburg […] 
Korneuburg, 4 January 2022 
[…]