OPINION OF ADVOCATE GENERAL
PIKAMÄE
delivered on 23 September 2021 (1)
Joined Cases C‑146/20, C‑188/20, C‑196/20 and C‑270/20
AD, BE, CF
v
Corendon Airlines (C‑146/20)
and
JG, LH, MI, NJ
v
OP, acting as liquidator of Azurair GmbH (C‑188/20)
and
Eurowings GmbH
v
flightright GmbH (C‑196/20)
(Request for a preliminary ruling
from the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany))
and
AG, MG, HG
v
Austrian Airlines AG (C‑270/20)
(Request for a preliminary ruling
from the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria))
(Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Common rules on compensation and assistance to passengers in the event of cancellation or long delay of flights – Article 2 – Concepts of ‘confirmed reservation’ and ‘operating air carrier’ – Articles 5 and 7 – Concept of ‘scheduled time of arrival’ – Bringing forward of the time of departure of a flight – Classification – Offer of re-routing – Article 14 – Obligation to inform passengers of their rights – Scope)
I.      Introduction
1.        These requests for a preliminary ruling from the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany) and the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) concern the interpretation of Article 2(b), (f), (g), (h) and (l), Article 3(2)(a), Article 5(1), Article 7(1) and (2), Article 8(1)(b) and Article 14(2) 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. (2)
2.        The requests have been made in proceedings between air passengers and a number of airlines concerning compensation for cancellation or long delay of their flights. They raise a number of new and complex legal questions on which the Court will have the opportunity to give a ruling. Those legal questions can be grouped, in general terms, according to three different, complex themes, namely the rights of passengers in a tripartite relationship involving a tour operator which is not connected to the air carrier, the possibility of obtaining compensation where the time of departure of a flight is brought forward and, finally, the scope of the obligation incumbent on all air carriers to provide information to passengers on the compensation and assistance rules laid down in Regulation No 261/2004.
II.    Legal framework
A.      Regulation No 261/2004
3.        Under recital 20 of Regulation No 261/2004:
‘Passengers should be fully informed of their rights in the event of denied boarding and of cancellation or long delay of flights, so that they can effectively exercise their rights.’
4.        Article 2 of that regulation provides:
‘For the purposes of this Regulation:
…
(b)      “operating air carrier” means an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger;
…
(f)      “ticket” means a valid document giving entitlement to transport, or something equivalent in paperless form, including electronic form, issued or authorised by the air carrier or its authorised agent;
(g)      “reservation” means the fact that the passenger has a ticket, or other proof, which indicates that the reservation has been accepted and registered by the air carrier or tour operator;
(h)      “final destination” means the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight; alternative connecting flights available shall not be taken into account if the original planned arrival time is respected;
…
(l)      “cancellation” means the non-operation of a flight which was previously planned and on which at least one place was reserved.’
5.        Article 3 of that regulation provides:
‘1.      This Regulation shall apply:
(a)      to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;
(b)      to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier.
2.      Paragraph 1 shall apply on the condition that passengers:
(a)      have a confirmed reservation on the flight concerned and, except in the case of cancellation referred to in Article 5, present themselves for check-in,
–        as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent,
or, if no time is indicated,
–        not later than 45 minutes before the published departure time …
…’
6.        Article 5(1) of that regulation provides:
‘In case of cancellation of a flight, the passengers concerned shall:
(a)      be offered assistance by the operating air carrier in accordance with Article 8; and
(b)      be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, 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); and
(c)      have the right to compensation by the operating air carrier in accordance with Article 7, unless:
(i)      they are informed of the cancellation at least two weeks before the schedule time of departure; or
(ii)      they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or
(iii)      they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.’
7.        Under Article 7 of Regulation No 261/2004:
‘1.      Where reference is made to this Article, passengers shall receive compensation amounting to:
…
(b)      EUR 400 for all intra-Community flights of more than 1 500 kilometres, and for all other flights between 1 500 and 3 500 kilometres;
…
2.      When passengers are offered re-routing to their final destination on an alternative flight pursuant to Article 8, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked
…
(b)      by three hours, in respect of all intra-Community flights of more than 1 500 kilometres and for all other flights between 1 500 and 3 500 kilometres; or
…
the operating air carrier may reduce the compensation provided for in paragraph 1 by 50%.
…’
8.        Article 8(1) of that regulation provides:
‘1.      Where reference is made to this Article, passengers shall be offered the choice between:
(a)      –      reimbursement within seven days, by the means provided for in Article 7(3), of the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan, together with, when relevant,
–        a return flight to the first point of departure, at the earliest opportunity;
(b)      re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; or
(c)      re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.’
9.        Article 13 of that regulation provides:
‘In cases where an operating air carrier pays compensation or meets the other obligations incumbent on it under this Regulation, no provision of this Regulation may be interpreted as restricting its right to seek compensation from any person, including third parties, in accordance with the law applicable. In particular, this Regulation shall in no way restrict the operating air carrier’s right to seek reimbursement from a tour operator or another person with whom the operating air carrier has a contract. Similarly, no provision of this Regulation may be interpreted as restricting the right of a tour operator or a third party, other than a passenger, with whom an operating air carrier has a contract, to seek reimbursement or compensation from the operating air carrier in accordance with applicable relevant laws.’
10.      Under Article 14(2) of that regulation:
‘An operating air carrier denying boarding or cancelling a flight shall provide each passenger affected with a written notice setting out the rules for compensation and assistance in line with this Regulation. It shall also provide each passenger affected by a delay of at least two hours with an equivalent notice. The contact details of the national designated body referred to in Article 16 shall also be given to the passenger in written form.’
B.      Directive (EU) 2015/2302
11.      Recital 33 of Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC, (3) states:
‘In certain cases organisers should be allowed to make unilateral changes to the package travel contract. However, travellers should have the right to terminate the package travel contract if the changes alter significantly any of the main characteristics of the travel services. This may for instance be the case if the quality or the value of the travel services diminishes. Changes of departure or arrival times indicated in the package travel contract should be considered significant, for instance, where they would impose on the traveller considerable inconvenience or additional costs, for instance rearrangement of transport or accommodation. …’
12.      Article 11(1) of that directive provides:
‘Member States shall ensure that, before the start of the package, the organiser may not unilaterally change package travel contract terms other than the price in accordance with Article 10, unless:
…
(b)      the change is insignificant …
…’
III. Facts of the dispute, procedure in the main proceedings and questions referred for a preliminary ruling
A.      Case C‑188/20, Azurair
13.      LH booked, for herself and other passengers (‘the passengers in the main proceedings’), a package tour to Side (Turkey) through a travel agency, including return air travel from Düsseldorf (Germany) to Antalya (Turkey).
14.      A document entitled ‘travel registration’, issued to LH, showed the following flights with the airline Azurair GmbH: (1) flight ARZ 8711, on 15 July 2018, from Düsseldorf to Antalya, departing and arriving at 6.00 and 10.30 respectively, and (2) flight ARZ 8712, on 5 August 2018, from Antalya to Düsseldorf, departing and arriving at 12.00 and 14.45 respectively. The following note, written in capitals appeared below those details: ‘For your own protection, please check the flight shown in your tickets.’
15.      The passengers in the main proceedings took the flights shown in that document. However, in the case of the outbound flight, they reached Antalya at 1.19 on 16 July 2018 and, in the case of the return flight, the aircraft took off at 5.10 on 5 August 2018. Consequently, those passengers claimed compensation payments from Azurair under Article 7(1)(b) of Regulation No 261/2004 before the Amtsgericht Düsseldorf (Local Court, Düsseldorf, Germany). Relying on the details shown in the ‘travel registration’, they argued that the outbound flight had been delayed by more than three hours, whilst the return flight had been cancelled, as the bringing forward of the flight must be classified as ‘cancellation’ within the meaning of Article 5(1) of that regulation.
16.      Azurair argued that it had not scheduled the flights in question at the times shown in the ‘travel registration’, but that its scheduling corresponded to the information in the ‘travel confirmation/invoice’ sent to alltours flugreisen GmbH, as tour operator, on 22 January 2018.
17.      According to that scheduling, the aircraft on the outbound journey was due to take off at 20.05 on 15 July 2018 and land at 12.40 a.m. the following day; the aircraft on the return journey was due to take off at 8.00 on 5 August 2018 and land at 10.50. For the outbound flight, as shown by that scheduling, the delay was not therefore a delay of three hours or more. As to the return flight, whilst it was indeed brought forward, also in comparison to the scheduling indicated by Azurair, bringing it forward was not, according to Azurair, a cancellation within the meaning of Article 2(1) of Regulation No 261/2004. In addition, Azurair asked that any compensation be reduced under Article 7(2)(b) of that regulation, on the ground that the passengers in the main proceedings arrived at their final destination only 2 hours and 50 minutes prior to the scheduled arrival time.
18.      The Amtsgericht Düsseldorf (Local Court, Düsseldorf) dismissed that action on the ground that the ‘travel registration’ did not constitute a confirmation of reservation within the meaning of Article 2(g) of Regulation No 261/2004, since it was clear from that registration that the flight times were merely provisional. According to that court, there was no document which could be identified as a ‘ticket’ within the meaning of Article 2(f) of that regulation.
19.      The passengers in the main proceedings brought an appeal against that judgment before the Landgericht Düsseldorf (Regional Court, Düsseldorf), the referring court. That court questions whether the position adopted by the Amtsgericht Düsseldorf (Local Court, Düsseldorf) is in accordance with the provisions of Regulation No 261/2004.
20.      In those circumstances, the Landgericht Düsseldorf (Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Does a passenger have a “confirmed reservation” within the meaning of Article 3(2)(a) of [Regulation No 261/2004] if he [or she] has received, from a tour operator with which he [or she] has a contract, “other proof” within the meaning of Article 2(g) of Regulation No 261/2004, by which he [or she] is assured transport on a particular flight, individualised by points of departure and destination, times of departure and arrival and flight number, without the tour operator having made a seat reservation for that flight with the air carrier concerned and having received confirmation from the latter?
(2)      Is an air carrier to be regarded as an “operating air carrier” within the meaning of Article 2(b) of Regulation No 261/2004 in relation to a passenger if, despite the fact that that passenger has a contract with a tour operator which has promised him [or her] carriage on a particular flight, individualised by points of departure and destination, times of departure and arrival and flight number, the tour operator has not, however, reserved a seat for the passenger and has therefore not established a contractual relationship with the air carrier in respect of that flight?
(3)      Can the “scheduled time of arrival” of a flight within the meaning of Article 2(h), Article 5(1)(c), the second sentence of Article 7(1) and Article 7(2) of Regulation No 261/2004 be determined, for the purposes of compensation for cancellation or long delay in arrival, from “other proof” issued to a passenger by a tour operator, or must the ticket pursuant to Article 2(f) of Regulation No 261/2004 be taken into account for that purpose?
(4)      Has there been a cancellation of a flight within the meaning of Article 2(l) and Article 5(1) of Regulation No 261/2004 if the operating air carrier brings a flight booked as part of a package tour forward by at least 2 hours and 10 minutes within the same day?
(5)      Can the operating air carrier reduce the compensation under Article 7(1) of Regulation No 261/2004 in accordance with Article 7(2) of that regulation if the amount of time by which a flight has been brought forward is within the periods specified in that provision?
(6)      Does it constitute an offer of re-routing within the meaning of Articles 5(1)(a) and Article 8(1)(b) of Regulation No 261/2004 if a passenger is informed, before the beginning of his [or her] journey, that his [or her] flight has been brought forward?
(7)      Does Article 14(2) of Regulation No 261/2004 oblige the operating air carrier to inform the passenger of the exact company name and address from which he [or she] can request a sum on a sliding scale based on distance, the amount of that sum and, if applicable, the documents that he [or she] should attach to his [or her] request?’
B.      Case C‑196/20, Eurowings
21.      On 24 October 2017, two passengers booked, through a travel agency, a package tour to Majorca (Spain), including return air travel from Hamburg (Germany) to Palma de Mallorca (Spain).
22.      A document entitled ‘travel registration’ was issued to those passengers by the tour operator ITS, which showed the following flight with the airline Eurowings GmbH: flight EW 7582, on 22 May 2018, from Hamburg to Palma de Mallorca, departing and arriving at 7.30 and 10.05 respectively.
23.      Those passengers did in fact take the flight indicated above. However, they reached their final destination not at 10.05 but at 21.08. As those passengers had assigned to flightright GmbH any rights to compensation which they may have under Regulation No 261/2004, flightright brought an action before the Amtsgericht Düsseldorf (Local Court, Düsseldorf) arguing that those passengers had a confirmed reservation for the flight in question, which was scheduled to arrive at 10.05 on 22 May 2018.
24.      Eurowings argued in response that the passengers had a confirmed reservation for flight EW 7582, which was scheduled to arrive at 19.05. Therefore, the delay experienced was of less than three hours, which did not give a right to compensation.
25.      The court at first instance upheld flightright’s claim on the ground that the ‘travel registration’ issued by the tour operator ITS constituted a confirmation of reservation within the meaning of Article 2(g), read in conjunction with Article 2(f), of Regulation No 261/2004. That court considered that the travel registration issued to the passengers concerned constituted ‘other proof’ within the meaning of Article 2(g), as that provision requires only that the reservation has been accepted by the tour operator. That court stated, in addition, that there was no document which could be identified as a ‘ticket’ within the meaning of Article 2(f) of that regulation.
26.      Eurowings brought an appeal against that judgment before the Landgericht Düsseldorf (Regional Court, Düsseldorf), the referring court. That court questions, in essence, whether a confirmation of reservation from a tour operator, which is not based on a reservation made with the air carrier subject to the claim for compensation, can be regarded as a ‘confirmed reservation’ within the meaning of Article 3(2)(a) of Regulation No 261/2004.
27.      In those circumstances, the Landgericht Düsseldorf (Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Does a passenger have a “confirmed reservation” within the meaning of Article 3(2)(a) of [Regulation No 261/2004] if he [or she] has received, from a tour operator with which he [or she] has a contract, “other proof” within the meaning of Article 2(g) of that regulation, by which he [or she] is assured transport on a particular flight, individualised by points of departure and destination, times of departure and arrival and flight number, without the tour operator having made a seat reservation for that flight with the air carrier concerned and having received confirmation from the latter?
(2)      Is an air carrier to be regarded as an “operating air carrier” within the meaning of Article 2(b) of Regulation No 261/2004 in relation to a passenger if, despite the fact that that passenger has a contract with a tour operator which has promised him [or her] carriage on a particular flight, individualised by points of departure and destination, times of departure and arrival and flight number, the tour operator has not, however, reserved a seat for the passenger and has therefore not established a contractual relationship with the air carrier in respect of that flight?
(3)      Can the “scheduled time of arrival” of a flight within the meaning of Article 2(h), Article 5(1)(c), the second sentence of Article 7(1) and Article 7(2) of Regulation No 261/2004 be determined, for the purposes of compensation for cancellation or long delay in arrival, from “other proof” issued to a passenger by a tour operator, or must the ticket pursuant to Article 2(f) of that regulation be taken into account for that purpose?’
C.      Case C‑146/20, Corendon Airlines
28.      The passengers in the main proceedings booked, via a travel agency, a package tour to Antalya. Following that booking, the airline Corendon Airlines confirmed that the flight from Düsseldorf to Antalya would take place on 18 May 2018, with a departure time of 10.20. Subsequently, Corendon Airlines brought forward the flight by 1 hour and 40 minutes, to 8.40 on 18 May 2018, maintaining, however, the same flight number.
29.      Those passengers, having missed the flight brought forward in that way, brought an action before the Amtsgericht Düsseldorf (Local Court, Düsseldorf) against Corendon Airlines, claiming, inter alia, compensation under Articles 5(1)(c) and 7(1)(b) of Regulation No 261/2004. In support of their action, those passengers argued that they had not been informed that the flight time had been brought forward and that that amounted, in reality, to a cancellation. Corendon Airlines, however, considered that the passengers had been informed by the tour operator on 8 May 2018 that the flight was being brought forward.
30.      The Amtsgericht Düsseldorf (Local Court, Düsseldorf) considered that bringing forward a flight by 1 hour and 40 minutes does not amount to a cancellation of that flight inasmuch as that bringing forward of the flight was insignificant and, consequently, dismissed the passengers’ action.
31.      They brought an appeal against that judgment before the Landgericht Düsseldorf (Regional Court, Düsseldorf), the referring court. That court questions whether the reasoning adopted by the Amtsgericht Düsseldorf (Local Court, Düsseldorf) is in accordance with Regulation No 261/2004.
32.      In those circumstances, the Landgericht Düsseldorf (Regional Court, Düsseldorf) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Is there a cancellation of a flight within the meaning of Article 2(l) and Article 5(1) of [Regulation No 261/2004] 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 Articles 5(1)(a) and 8(1)(b) of [Regulation No 261/2004]?’
D.      Case C‑270/20, Austrian Airlines
33.      The passengers concerned booked a flight from Vienna (Austria) to Cairo (Egypt) with the airline Austrian Airlines. The scheduled time of departure was 22.15 on 24 June 2017 and the scheduled time of arrival, 1.45 the following day. On the day of the flight, Austrian Airlines cancelled it and offered the passengers a flight departing the same day at 10.20 and arriving in Cairo at 13.50, which those passengers accepted. Thus, they reached their final destination 11 hours and 55 minutes prior to the original scheduled time of arrival.
34.      Austrian Airlines made an out-of-court payment to each of the passengers at issue of compensation of EUR 200, after a reduction of 50% was applied to the compensation provided for in Article 7(1)(b) of Regulation No 261/2004, in accordance with Article 7(2)(b) of that regulation.
35.      The passengers in the main proceedings brought an action before the Bezirksgericht Schwechat (District Court, Schwechat, Austria) against Austrian Airlines, claiming full compensation in accordance with Article 7(1)(b) of that regulation. They argued that, although they were not late in arriving in Cairo, their early arrival was as prejudicial to them as a long delay, asserting that they had accepted Austrian Airlines’ offer because the other option offered by Austrian Airlines would have meant their losing two days of holiday.
36.      The Bezirksgericht Schwechat (District Court, Schwechat) dismissed that action on the ground that it is clear from the wording of Article 7(2) of Regulation No 261/2004 that that provision is also applicable in situations where passengers reach their final destination on an earlier flight.
37.      The passengers in the main proceedings brought an appeal against that judgment before the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), the referring court. That court questions whether the rule that compensation may be reduced by 50% where the arrival delay does not exceed three hours, in accordance with Article 7(2)(b) of that regulation, may also be applied to an arrival which is no more than three hours early in comparison to the scheduling of the original flight. In that regard, the referring court points out that a considerably earlier take-off may entail disadvantages for the passenger which are as serious as a late arrival in view of the criteria laid down in that provision.
38.      In those circumstances, the Landesgericht Korneuburg (Regional Court, Korneuburg) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Is Article 7(2)(b) of [Regulation No 261/2004] to be interpreted as meaning that the air carrier may reduce the entitlement to compensation under Article 7(1)(b) of that regulation also in the case where, as a result of the cancellation of the flight booked, the passengers are offered an alternative flight the scheduled time of departure and the scheduled time of arrival of which are each 11 hours and 55 minutes earlier than the flight times of the cancelled flight?’
IV.    Procedure before the Court
39.      The orders for reference in Cases C‑188/20, Azurair, and C‑196/20, Eurowings, dated 6 April 2020, were received at the Registry of the Court on 30 April 2020 and 6 May 2020 respectively.
40.      The order for reference in Case C‑146/20, Corendon Airlines, dated 17 February 2020, was received at the Registry of the Court on 20 March 2020. The order for reference in Case C‑270/20, Austrian Airlines, dated 16 June 2020, was received at the Registry of the Court on 18 June 2020.
41.      By order of the President of the Court, of 15 June 2020, Cases C‑188/20, Azurair, and C‑196/20, Eurowings, were joined for the purposes of the written and oral procedure and the judgment.
42.      By decision of the Court, of 27 April 2021, the cases at issue were joined for the purposes of the written and oral procedure and the judgment.
43.      The parties to the main proceedings, the German and Austrian Governments and the European Commission lodged written observations within the time allowed by Article 23 of the Statute of the Court of Justice of the European Union.
44.      At the hearing on 16 June 2021, the legal representatives of the parties to the main proceedings and the representatives of the German Government and the Commission submitted observations.
V.      Legal analysis
A.      Preliminary remarks
45.      Inasmuch as there are clear parallels and overlaps between the requests for a preliminary ruling, I intend to classify the questions put to the Court according to certain themes. Creating such a ‘catalogue of questions’ will enable the Court to deal with them in a systematic, structured and efficient manner. In that regard, it should be observed that the questions posed by the referring court in Case C‑188/20, Azurair, encompass all of the questions posed in the other cases.
46.      For that reason, as well as for simplicity’s sake, I will examine the questions referred for a preliminary ruling in the order in which they were posed in that case, taking into account, as far as possible, the particular features of the related cases. Except where expressly indicated otherwise, the examination of the questions will be based essentially on the facts of Case C‑188/20, Azurair, which, as a consequence, constitutes, in some way, a ‘test case’ for the purposes of the present Opinion.
47.      As indicated in the introduction to the present Opinion, the legal questions raised in the requests for a preliminary ruling can be grouped, in general terms, into three different, complex themes, namely the rights of passengers in a tripartite relationship involving a tour operator which is not connected to the air carrier (first to third questions), (4) the possibility of obtaining compensation or re-routing where the departure time of a flight is brought forward (fourth to sixth questions) (5) and, finally, the scope of the obligation incumbent on all air carriers to provide information to passengers on the compensation and assistance rules laid down in Regulation No 261/2004 (seventh question). (6)
B.      First question referred for a preliminary ruling
48.      By the first question referred by it for a preliminary ruling in Cases C‑188/20, Azurair, and C‑196/20, Eurowings, the referring court wishes to know whether a passenger has a ‘confirmed reservation’ within the meaning of Article 3(2)(a) of Regulation No 261/2004 if he or she has received, from a tour operator, ‘other proof’ within the meaning of Article 2(g) of Regulation No 261/2004, assuring transport on a particular flight, individualised by points of departure and destination, times of departure and arrival and flight number, even though the operator has not made a seat reservation for that flight with the air carrier concerned.
49.      In accordance with Article 3(2)(a) of Regulation No 261/2004, that regulation can apply where a passenger has a ‘confirmed reservation’ for the flight concerned.
50.      According to Article 2(g) of Regulation No 261/2004, the document capable of giving the passenger a right of transport is a ‘ticket’ or ‘other proof’ which indicates that the reservation has been accepted and registered by the carrier or tour operator.
51.      In the present case, it is clear that the document received by the applicants is not an aeroplane ‘ticket’ within the meaning of Article 2(f) of Regulation No 261/2004, that is to say ‘a valid document giving entitlement to transport, or something equivalent in paperless form, including electronic form, issued or authorised by the air carrier or its authorised agent’. (7) The referring court acknowledges that itself, as is apparent from the order for reference. (8) However, that document could constitute ‘other proof’ within the meaning of that provision, as the referring court appears to assume in the question which it referred for a preliminary ruling.
52.      Inasmuch as that concept is not expressly defined in Regulation No 261/2004, it is necessary to establish, first, what conditions that ‘other proof’ must fulfil and, second, whether the document in the present case meets those conditions.
53.      It is apparent from a reading of the relevant provisions that it is important that the document at issue ‘give entitlement to transport of the passenger’. In other words, it must be possible to deduce from the document a willingness to transport the passenger to the destination and at the time specified. That is undoubtedly the case of an aeroplane ‘ticket’, which is defined in Article 2(f) as ‘a valid document giving entitlement to transport’. (9)Moreover, it should be pointed out that Article 2(g) requires the registration to have been ‘accepted and registered’, whilst Article 3(2)(a) requires a ‘confirmed’ reservation, which excludes, in principle, any type of document of a purely informative nature.
54.      It is also apparent from an interpretation of those provisions that the document at issue does not necessarily have to have been issued by the air carrier itself. In accordance with Article 2(g), the ‘reservation’ may be accepted and registered by the air carrier or ‘tour operator’. In addition, under Article 3(2)(a), the ‘confirmed registration’ may be issued by the air carrier or ‘tour operator’. Such a rule seems reasonable, viewed from a consumer protection perspective, given that the passenger normally has no knowledge of the relationship between the tour operator and the air carrier and the exchanges which take place between them as part of the flight reservation process. Consequently, consumers cannot be required to check themselves that their flight reservation has been confirmed by the air carrier. Furthermore, Regulation No 261/2004 also does not provide for a corresponding obligation to provide information on the part of those undertakings.
55.      It follows that, for there to be a ‘confirmed reservation’, it is sufficient for the tour operator to have expressed, by means of a relevant document, a willingness to transport the passenger on a particular flight. It should, however, be added in this context that the grant of the rights guaranteed by Regulation No 261/2004 is dependent on other conditions, including the existence of an ‘operating air carrier’ as provided for in Article 2(b), an aspect which will be examined as part of the analysis of the second question referred for a preliminary ruling.
56.      As far as the present case is concerned, it should be noted that the document issued to the applicants and entitled ‘travel registration’ (German term: ‘Reiseanmeldung’) does not fulfil the conditions to be classified as ‘other proof’ within the meaning of Article 2(g) of Regulation No 261/2004. First, the title itself appears to indicate only a mere interest in participating in a trip. If the tour operator had wanted to express a binding assurance of transport, it would have used clearer terms, such as ‘confirmation of reservation’ or ‘travel confirmation’. Second, it is clear from the instructions in that document that the times were merely provisional and that it was necessary for the passengers to check those times themselves for their protection. Consequently, a ‘travel registration’ is under no circumstances an expression of a binding commitment on the part of the tour operator to provide the travel service specified in that document, especially as Article 3(2)(a) of that regulation requires that the reservation be ‘confirmed’. The passenger cannot therefore understand that registration as a binding assurance of transport expressed in the form of a ‘confirmed reservation’ within the meaning of that provision. It is for the referring court to determine the legal classification of the document at issue, taking account of all those interpretative elements.
57.      It is apparent from the foregoing that a passenger can have a ‘confirmed reservation’ if he or she has received, from a tour operator with which he or she has a contract, ‘other proof’ within the meaning of Article 2(g) of Regulation No 261/2004, assuring transport on a particular flight, individualised by points of departure and destination, times of departure and arrival and flight number, even though the operator has not made a seat reservation for that flight with the air carrier concerned or received confirmation of that reservation from that air carrier. However, that is not the case if he or she has received a document entitled ‘travel registration’ which is not an expression of a binding commitment on the part of the tour operator to provide the travel service specified in that document.
58.      Whilst the answer thus proposed may potentially be to the detriment of the air carrier since it would be held liable for the conduct of the tour operator, it should be recalled that that carrier has the option to seek redress from the tour operator in accordance with Article 13 of Regulation No 261/2004. (10)
59.      In the light of the foregoing considerations, I propose that the answer to the first question referred for a preliminary ruling should be that Article 3(2)(a) of Regulation No 261/2004 must be interpreted as meaning that a passenger can have a ‘confirmed reservation’ if he or she has received, from a tour operator with which he or she has a contract, ‘other proof’ within the meaning of Article 2(g) of that regulation, assuring transport on a particular flight, individualised by points of departure and destination, times of departure and arrival and flight number, even though the operator has not made a seat reservation for that flight with the air carrier concerned or received confirmation of that reservation from that air carrier; that is not the case if he or she has received a document named ‘travel registration’ which is not an expression of a binding commitment on the part of the tour operator to provide the travel service specified in that document.
C.      Second question referred for a preliminary ruling
60.      By the second question referred by it for a preliminary ruling in Cases C‑188/20, Azurair, and C‑196/20, Eurowings, the referring court wishes to know whether an air carrier must be regarded as an ‘operating air carrier’ within the meaning of Article 2(b) of Regulation No 261/2004 in relation to a passenger if that passenger has a contract with a tour operator which has promised him or her carriage on a particular flight, individualised by points of departure and destination, times of departure and arrival and flight number, but which has not reserved a seat for him or her with the air carrier and has therefore not established a contractual relationship with that air carrier in respect of that flight.
61.      According to the definition in Article 2(b) of Regulation No 261/2004, the ‘operating air carrier’ is an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger.
62.      On the one hand, it follows from that provision that it is not necessary for the air carrier to have a contract with the passenger concerned, as that carrier may perform or intend to perform the flight on behalf of another person having a contract with the passenger, such as a tour operator. Under Article 3(5) of Regulation No 261/2004, 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. (11) Consequently, the possibility cannot be excluded that, in the present case, the air carrier acted on behalf of the tour operator.
63.      On the other hand, it also follows from that provision that the air carrier must perform or intend to perform the flight concerned. The referring court questions the interpretation of that condition. More precisely, it wishes to know whether an air carrier can be regarded as having performed or having intended to perform a flight without being aware of the offer of travel made to the passengers by the tour operator. According to the referring court, for such an intention to exist, the tour operator must necessarily have first informed the air carrier of its wish to have the passenger concerned transported on a flight offered by that carrier to interested parties.
64.      In that regard, it should be noted that that question is not decisive for the outcome of the dispute in Cases C‑188/20, Azurair, and C‑196/20, Eurowings. In the two disputes in the main proceedings, the operator had ultimately made reservations for the passengers concerned with the air carrier. Consequently, with effect from that date, the carrier in question had to be regarded as the ‘operating air carrier’ within the meaning of Article 2(b) of Regulation No 261/2004. That being the case, it could be subject to a claim under that regulation. In the context of the present proceedings, it is purely a question of determining the times which had been set for the different flights which the air carrier intended to perform and which it actually performed. Even though that point, I accept, falls more under the third question referred for a preliminary ruling, I will examine it here for the sake of completeness.
65.      As explained in the considerations which support the answer to the first question referred for a preliminary ruling, Article 2(g) of Regulation No 261/2004 places a passenger’s reservation with a tour operator on the same footing as a reservation with the air carrier itself and implies, read in conjunction with Article 3(2)(a) of that regulation, that the information about times given by the tour operator must be attributed to the air carrier.
66.      It is in the light of that approach that Article 2(b) of Regulation No 261/2004 must be interpreted. The mere fact that the passenger’s reservation with the tour operator includes times which have not been confirmed by the air carrier in the context of the internal reservation between those undertakings is not sufficient for it to be considered that the conditions of that provision are not fulfilled. More specifically, such a circumstance does not prevent a finding that the air carrier ‘performs or intends to perform’ the flight at issue ‘on behalf of another person … having a contract with [the] passenger’, namely on behalf of the tour operator.
67.      The fact that the tour operator made its reservation with the air carrier only after the passengers booked the trip (which includes air transport) with the tour operator seems to me irrelevant from the point of view of classification as ‘operating air carrier’ within the meaning of Article 2(b) of Regulation No 261/2004, given that that provision does not contain any indication that those transactions should be carried out in a certain chronological order.
68.      In the light of those considerations, I propose that the answer to the second question referred for a preliminary ruling should be that the mere fact that the tour operator’s reservation with the air carrier for the flight concerned has not been confirmed with the times of departure or arrival appearing in the passenger’s reservation with the tour operator, or that that reservation by the tour operator took place after the passenger’s reservation, does not exclude the possibility that an air carrier may, in relation to such a passenger, be an ‘operating air carrier’ within the meaning of Article 2(b) of Regulation No 261/2004.
D.      Third question referred for a preliminary ruling
69.      By the third question referred by it for a preliminary ruling in Cases C‑188/20, Azurair, and C‑196/20, Eurowings, the referring court wishes to know whether the ‘scheduled time of arrival’ of a flight within the meaning of Article 2(h), Article 5(1)(c), the second sentence of Article 7(1) and Article 7(2) of Regulation No 261/2004 can be determined, for the purposes of compensation, from ‘other proof’ within the meaning of Article 2(g) of that regulation, issued to the passenger by a tour operator, or whether the ticket pursuant to Article 2(f) of that regulation must be taken as a basis.
70.      At the outset, it should be made clear that the question referred for a preliminary ruling, contrary to what it appears to suggest, does not relate to possible discrepancies between the information appearing in the ‘other proof’ and that appearing on the ‘ticket’. The problem is rather, as is apparent from the information in the order for reference, that, in the present case, there is no document which can be clearly identified as a ‘ticket’. (12)
71.      The aim of the question referred for a preliminary ruling is therefore rather to establish whether a ‘ticket’ alone can constitute a relevant document for determining the ‘scheduled time of arrival’, or whether ‘other proof’ can also do so. In my view, there is no legitimate reason to exclude the second possibility. As I will explain below in detail, it appears to me that the arguments invoked by the referring court against the second option are based on an incorrect interpretation.
72.      First, the referring court appears to assume that the ‘scheduled time of arrival’ can be established only on the basis of a ‘ticket’. It refers for that purpose to the judgment in Folkerts, (13) in which the Court held that a delay must be assessed, for the purposes of the compensation provided for in Article 7 of Regulation No 261/2004, in relation to the scheduled arrival time at the final destination. The referring court points out that, in paragraph 34 of that judgment, regarding the concept of ‘final destination’, the Court referred to the definition in Article 2(h) of that regulation. According to that provision, ‘final destination’ means the destination on the ‘ticket’ presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight. The referring court emphasises that the Court based the determination of the ‘final destination’ on the ‘ticket’ within the meaning of Article 2(f) of Regulation No 261/2004, but that it did not, by contrast, rely on the concept of ‘other proof’ which forms part of the definition of ‘reservation’ set out in Article 2(g) of that regulation.
73.      As far as that argument is concerned, it should be noted that there is no objective reason to assume that times can appear only on a ‘ticket’. According to the definition set out in Article 2(f) of Regulation No 261/2004, tickets are ‘issued or authorised by the air carrier or its authorised agent’. That provision does not mention tour operators. The theory that only the times appearing on a ‘ticket’ are decisive would therefore straightaway exclude rights to compensation where the flights concerned are part of a package tour.
74.      That was clearly not the intention of the EU legislature. On the contrary, as has already been explained in the context of the examination of the first question referred for a preliminary ruling, Regulation No 261/2004 accords the same status to the times set out in a reservation made with a tour operator and the information provided to the passenger by an air carrier where there is a direct contractual relationship. The wording of the provisions set out in Article 2(g) and, inter alia, Article 3(2)(a) of Regulation No 261/2004, as well as the legislative aim of protecting the consumer as a third party, who is not involved in the relationship between a tour operator and an air carrier, seem to me to support such an interpretation.
75.      That interpretation must have an effect on the determination of the ‘scheduled time of arrival’ in that that time can be evident from a passenger’s reservation with a tour operator. No direct contractual relationship between the passenger and the air carrier is necessary and, consequently, neither is the communication to the passenger by that carrier of any times. As a result, inasmuch as Article 2(g) of Regulation No 261/2004 recognises the existence of ‘other proof’ (apart from the ‘ticket’) of a ‘confirmed reservation’, it must also be possible for the ‘scheduled arrival’ time for the purposes of compensation for cancellation or long delay to be identified from that document.
76.      Second, the referring court submits that, as long as there is no reservation or, more precisely, no seat reservation on the flight concerned, an air carrier could alter or decide not to operate a scheduled flight, and no right to compensation could be derived from that. The referring court thus infers that ‘other proof’ issued before such a reservation has been made is not capable of forming the basis of a right to compensation.
77.      I find it difficult to believe that the information which appears in a reservation made with a tour operator cannot be relevant for the purposes of rights to compensation where the reservation in question took place before the tour operator reserved the corresponding seats with the air carrier. First, it should be pointed out that there is no basis in Regulation No 261/2004 for the idea that the reservations with the operator and the air carrier ought to be made in a certain chronological order. Second, there is, in my view, no doubt that the interests of the consumer deserve to be protected where the consumer has obtained a ‘ticket’ or ‘other proof’ assuring him or her transport on a particular flight, individualised by points of departure and destination, times of departure and arrival and flight number.
78.      In conclusion, I would point out that the reference to the judgment in Folkerts, (14) cited by the referring court, does not invalidate the foregoing reasoning, given that the particular problems resulting from the involvement of a tour operator, raised in the present case, did not arise in that case. That judgment does not contain any specific statements conflicting with the considerations set out above. Furthermore, I fail to see how that judgment could be regarded as being of relevance for the purposes of the examination of the question which arises in the present case.
79.      In the light of the foregoing considerations, I propose that the answer to the third question referred for a preliminary ruling should be that the ‘scheduled time of arrival’ of a flight within the meaning of Article 2(h), Article 5(1)(c), the second sentence of Article 7(1) and Article 7(2) of Regulation No 261/2004 can, depending on the circumstances of the case, also be determined from ‘other proof’, within the meaning of Article 2(g) of that regulation, issued to a passenger by a tour operator.
E.      Fourth question referred for a preliminary ruling
80.      By its fourth question in Case C‑188/20, Azurair, which corresponds to the first question in Case C‑146/20, Corendon Airlines, the referring court asks, in essence, whether it is possible to consider that a flight is ‘cancelled’, within the meaning of Article 2(l) and Article 5(1) of Regulation No 261/2004, if the operating air carrier brings the flight forward by at least 2 hours and 10 minutes within the same day.
81.      It is necessary to provide certain clarification concerning the facts of the cases before beginning the examination of the questions submitted to the Court. It is apparent from the information in the order for reference in Case C‑188/20, Azurair, that the period of time at issue is ‘2 hours and 50 minutes’, instead of the ‘2 hours and 10 minutes’ indicated in the fourth question referred for a preliminary ruling. (15) In addition, it should be noted, with regard to the first question referred for a preliminary ruling in Case C‑146/20, Corendon Airlines, which is almost identical to that fourth question referred for a preliminary ruling, that the flight was brought forward by ‘1 hour and 40 minutes’. Whatever the exact period of time may be, it should be borne in mind, for the purposes of the examination of the questions, that it was, in any event, less than three hours.
82.      With regard to the term ‘cancellation’ to which the referring court makes reference, it should be noted that, according to Article 2(l) of Regulation No 261/2004, that term must be understood as denoting ‘the non-operation of a flight which was previously planned and on which at least one place was reserved’. As that definition is based on the fact that a flight was not operated, it is necessary to examine the concept of ‘flight’, which, in the absence of a definition in that regulation, has been the subject of interpretation by the Court. According to that case-law, a ‘flight’ consists, essentially, in an air transport operation, being, as it were, a ‘unit’ of such transport, performed by an air carrier which fixes its itinerary. (16) The Court has, in addition, specified that the itinerary is an essential element of the flight, which is operated in accordance with the carrier’s pre-arranged planning. (17)
83.      Furthermore, it follows from the case-law of the Court that it is necessary to distinguish between the ‘non-operation’ of a planned flight and a ‘delay’, the first situation being characterised by the ‘abandonment of the planning for the original flight’. (18) According to Article 2(l) of Regulation No 261/2004, unlike ‘delay’, ‘cancellation’ is the result of the non-operation of a previously planned flight. If passengers are transported on a flight whose departure time is delayed in relation to that previously planned, the flight can be classified as ‘cancelled’ only if the air carrier transports the passengers on another flight, with different scheduling to the previously planned flight.
84.      The ‘bringing forward’ of flights is not expressly addressed in Regulation No 261/2004. Nevertheless, a number of provisions of that regulation lead to the conclusion that the EU legislature wanted to prevent the significant bringing forward of flights. Article 5(1)(c)(ii) of that regulation provides that passengers are to receive compensation under the other provisions of that regulation unless ‘they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival’. Article 5(1)(c)(iii) provides that the right to compensation is also excluded if passengers are ‘informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival’. (19)
85.      Those factors lead me to believe that the EU legislature implicitly recognised that the ‘significant bringing forward’ of a flight can cause serious inconvenience for passengers in the same way as a ‘delay’ since the bringing forward of a flight means that passengers are unable to use their time as they wish, to fulfil their obligations (private, professional and civic) and to organise their trip according to their requirements and preferences. As a number of interested parties argued in their written observations, it is possible to imagine a multitude of cases in which the bringing forward of the time of departure of a flight may prove particularly problematic for the passenger. That is the case especially where the flight is brought forward by a number of hours, potentially obliging the passenger to cancel planned appointments, request annual leave in order to be allowed to be away from work, find temporary accommodation or organise transport in order to be able to get to the airport on time. Inasmuch as the average consumer generally makes flight reservations according to his or her availability, a ‘significant bringing forward’ of the reserved flight is liable appreciably to disrupt the planning of his or her daily life.
86.      That said, it should be pointed out that even bringing forward a flight by just a few hours can have serious consequences, given that the passenger is normally asked to arrive at the airport one to three hours in advance in order to check in and go through security checks. Those procedures can take some time, depending on the security situation, passenger numbers and the level of use of the airport. Consequently, the possibility cannot be excluded that a passenger who is not properly informed of the bringing forward of the time of departure may no longer be able to board the aeroplane on time, even though he or she has taken all the precautions normally required. (20) Missing a flight in such circumstances appears to be among the most exasperating situations imaginable by an air passenger. Seen from that perspective, the inconvenience related to the ‘bringing forward’ of a flight can even be more serious than that created by the mere ‘delay’ of a flight. (21)
87.      First, as mentioned earlier, the aim of the provisions of Article 5(1)(c)(ii) and (iii) of Regulation No 261/2004 is clearly to prevent the bringing forward of the time of departure, in the circumstances referred to, by more than one to two hours, which can be understood as the intention of the EU legislature to prevent the ‘significant bringing forward’ of flights. Second, it is clear that not every instance of bringing forward the time of departure is liable to cause passengers ‘appreciable’ inconvenience such as to require measures to protect their interests. It is necessary, consequently, to distinguish the ‘significant’ bringing forward of flights from cases which are to be classified as ‘insignificant’. I will come back to that point later in my analysis.
88.      Inasmuch as the ‘bringing forward’ of the time of departure of a flight raises very specific problems for air passengers, which are different from those which are created by a ‘delay’, it seems to me that that situation requires a solution adapted to the requirements of passenger air transport. The fact that the ‘bringing forward’ of flights, unlike the situations of ‘denied boarding’, ‘cancellation’ and ‘long delay’ of a flight, is not directly addressed in Regulation No 261/2004, does not prevent the Court from finding, through interpretation, a solution which contributes to achieving the aims set by the EU legislature. In the absence of rules or more detailed practical guidance clarifying the concept of the ‘bringing forward’ of a flight, it is the responsibility of the Court to assume its role as supreme interpreter of EU law and to provide answers in the interests of legal certainty. Inasmuch as the bringing forward of flights seems to occur with some frequency in the field of passenger air transport, as the cases at issue show, it would, in my view, be unacceptable to tolerate legal uncertainty.
89.      As I will explain below, I take the view that the ‘bringing forward’ of a flight, where it is of a certain magnitude and can, consequently, be classified as ‘significant’, should be treated in legal terms as a specific case of the more general concept of ‘cancellation’ within the meaning of Article 2(l) of Regulation No 261/2004. On the other hand, classifying it as ‘delay’ or, at least, putting it on the same footing as that specifically regulated situation should be rejected, given that that approach would lead to an interpretation of the provisions of that regulation contra legem and would, as a result, be manifestly contrary to what the EU legislature intended. Moreover, as I have already indicated in the present Opinion, (22) the type of inconvenience that ‘bringing forward’ the time of departure of a flight causes is markedly different from that which is created by a ‘delay’. Consequently, the provisions regulating the rights of passengers in the event of the delay of a flight do not seem to me to provide a suitable solution. For those reasons, reliance on analogy, as suggested by the German Government, appears to me inappropriate.
90.      Even though the Court has not yet had the opportunity to give a ruling on the issue of the ‘bringing forward’ of flights, I take the view that the Court’s case-law on the concept of ‘cancellation’ contains useful elements which allow that issue to be dealt with. According to that case-law, ‘delays’ at the final destination do not always reflect a ‘cancellation’, because they do not necessarily result from an alteration to the scheduling of the flight. On the other hand, any ‘significant bringing forward’ of a flight constitutes a deviation from the original scheduling of the flight reserved.
91.      It should be recalled in that context that the scheduling of any flight consists of the itinerary and the scheduled times of departure and arrival. Unlike delayed flights, whose later time of departure is neither ‘scheduled’ by the air carrier nor usually influenced by it and for which the delay becomes apparent only in the course of events, the bringing forward of a flight is generally characterised by active scheduling on the part of the air carrier. In other words, the bringing forward of a flight is characterised by an active choice on the part of the air carrier to alter the original scheduling of a flight, whilst a delay is often neither anticipated nor planned in advance. Whilst a delay can occur without any action on the part of the air carrier, that does not appear to be the case for the bringing forward of a flight, which requires a decision on the part of that carrier.
92.      For the reasons set out above, inasmuch as it can be seen as an ‘abandonment of the original planning’ within the meaning of the case-law cited above, (23) I consider that the ‘significant bringing forward’ of a flight must be regarded as a ‘cancellation’ within the meaning of Article 2(l) of Regulation No 261/2004.
93.      Moreover, account must be taken of the fact that the inconvenience caused by the ‘significant bringing forward’ of a flight is often liable to be perceived by the passenger as a ‘cancellation’. That is certainly the case where the passenger is unable to board the aeroplane on time, even having taken all the precautions normally required. In my view, the same applies where the effect of the change in the departure time is to impose an excessive burden on the passenger, obliging him or her to take steps not originally anticipated in order to be able to take the flight. In situations of that nature, the passenger is generally unable to adapt to the altered scheduling of the flight. However, it would be unfair to blame the passenger for that circumstance and to make him or her suffer its consequences, namely the loss of the air transport and any possibility of compensation under Regulation No 261/2004. A more coherent approach seems to be to consider that, in those cases, the flight which was previously planned was ‘cancelled’ on the basis of a decision of the air carrier, thus opening the way for an action for compensation.
94.      In addition, inasmuch as passengers, in the circumstances described in the foregoing point, find themselves powerless in the face of the unilateral action taken by the air carrier in relation to the scheduling of their flight, similar to passengers affected by a decision of that carrier to cancel their flight, it appears to me that a uniform approach to the recognition of the rights of passengers is necessary in the light of the principle of equal treatment. As the Court recalled in the judgment in Sturgeon and Others, (24) Regulation No 261/2004 must be interpreted in accordance with primary law as a whole, including that principle. (25) No objective consideration appears to me capable of justifying a different approach.
95.      If the ‘significant bringing forward’ of the time of departure must be put on the same footing as a ‘cancellation’, as proposed in the present Opinion, the next question that arises is how to identify the situations capable of classification as ‘significant’ and giving rise to compensation under Article 7 of Regulation No 261/2004. It is necessary to develop suitable criteria to distinguish them from situations which are less serious and, therefore, ‘insignificant’, and do not lead to the obligation to pay such compensation. I will set out below some considerations to be taken into account.
96.      First, it seems to me that the criteria to be developed must ensure a certain ‘flexibility’ in order to take account of all the relevant circumstances of the particular case. The breadth of the circumstances which can arise in the field of air transport makes it extremely difficult to establish a single criterion of universal application. The assessment of the facts in the light of criteria of an ‘indicative’ nature, developed by the Court, should fall within the jurisdiction of the national courts, on the ground that they are more familiar with the case file.
97.      Second, putting in place a system similar to that provided for in Article 6 of Regulation No 261/2004 for ‘delays’, establishing threshold values (hours by which a flight is brought forward), without taking account of the particular case, would, in some instances, be an excessively rigid approach. Moreover, it should be recalled that the bringing forward of the time of departure resembles a ‘cancellation’ more than a ‘delay’. In reality, as has already been indicated in the present Opinion, (26) the ‘bringing forward’ of a flight is a specific case of the more general concept of ‘cancellation’ within the meaning of Article 2(l) of Regulation No 261/2004. Article 6 of that regulation therefore does not constitute a suitable benchmark for the formulation of criteria. Thus, that regulation provides no legal basis for the creation of a comparable system through case-law.
98.      Third, account should be taken of the fact that Regulation No 261/2004 seeks, as is clear from recitals 1, 2 and 4, to ensure a high level of protection for passengers and consumers, by strengthening their rights in a number of ‘situations involving serious trouble and inconvenience’, and also redressing those situations in a standardised and immediate manner. (27) Consequently, inasmuch as any ‘bringing forward’ of a flight is, in principle, capable of causing trouble and inconvenience, it is necessary to target only the situations which deserve to be compensated on account of their seriousness. In other words, there must be a correlation between the inconvenience relied upon by the passenger and the respective compensation sought by that passenger. (28) Compensation should therefore be ruled out where the bringing forward of the flight has no (or almost no) effect on the passenger’s freedom to manage his or her affairs and, especially, the preparations for his or her trip. As part of my analysis, I have set out some examples of serious inconvenience which may be caused by the ‘significant’ bringing forward of a flight. (29) Those examples can serve as a starting point for the formulation, through case-law, of a catalogue of circumstances giving rise, in principle, to a right to compensation.
99.      In the light of the foregoing considerations, I take the view that it should be concluded that there has been a ‘cancellation’ where the bringing forward of the flight is so ‘significant’ that it cannot be presumed that a passenger who made his or her arrangements on the basis of the original scheduling of the flight could still have succeeded in taking that flight. As part of the examination which the national courts will be required to carry out, it will be necessary to take account of the relevant circumstances of the particular case, including the time of arrival at the airport, prior to departure, recommended to passengers. In that regard, it can safely be stated that the more significant the bringing forward of a flight, the more serious the negative impact for the passenger. (30) The national courts will also be required to ascertain whether the passenger was duly informed, in good time, of the change of time, in such a way as to enable him or her to adapt to the altered scheduling of the flight. If, in the light of those factors, a passenger would not normally be in a position to take a flight which has been brought forward, the bringing forward of the flight constitutes a ‘replacement’ and, consequently, a ‘cancellation’.
100. As regards the circumstances in Case C‑188/20, Azurair, it should be observed that the flight in question was brought forward by 6 hours and 50 minutes in comparison to the information provided to the passengers by the tour operator. (31) If the actual time of departure is compared to the information which the air carrier claims to have provided to the tour operator, the difference is 2 hours and 50 minutes, whereas the question referred for a preliminary ruling refers to 2 hours and 10 minutes. It can be assumed that, even in the best-case scenario, in which the passenger took the precaution of being at the airport two hours prior to the time of departure, the time available would not have been sufficient to complete the necessary formalities, namely check in and go through security checks, and to board in accordance with the air carrier’s instructions.
101. It follows that the passenger could not have succeeded in taking his or her flight in the present case if he or she had not been notified in good time. Thus, subject to the findings which it falls to the national court to make, the bringing forward of the time of departure must be regarded as ‘significant’ and, as a result, comparable to a ‘cancellation’.
102. I propose that the answer to the fourth question referred for a preliminary ruling should be that there has been a cancellation of a flight within the meaning of Article 2(l) and Article 5(1) of Regulation No 261/2004 where the operating air carrier brings forward by at least two hours a flight booked as part of a package tour.
F.      Fifth question referred for a preliminary ruling
103. By its fifth question in Case C‑188/20, Azurair, which corresponds to the sole question in Case C‑270/20, Austrian Airlines, the referring court seeks to establish whether, should the bringing forward of a flight have to be regarded as a ‘cancellation’ within the meaning of Article 5, read in conjunction with Article 2(l), of Regulation No 261/2004, the air carrier can benefit from a reduction in the amount of the compensation, in accordance with Article 7(2) of that regulation, if the amount of time by which a flight has been brought forward is within the periods specified in that provision.
104. Under Article 7(2) of Regulation No 261/2004, the air carrier may reduce the compensation provided for in Article 7(1) by 50% if re-routing to a final destination is offered on an alternative flight, the arrival time of which does not exceed ‘the scheduled arrival time of the flight originally booked’ by a maximum amount of time, with that maximum amount of time being set according to the distance covered by the flight.
105. At the outset, it should be pointed out that that provision takes as its starting point the extent of the arrival ‘delay’ experienced by the passenger. That is clear from the wording of Article 7(2) (‘does not exceed the scheduled arrival time of the flight originally booked’ (32)) of Regulation No 261/2004. Furthermore, the Court itself made clear, in its judgment in Sturgeon and Others, that ‘the reduction in the compensation provided for is dependent solely on the delay to which passengers are subject’. (33) The fact that the periods specified in that provision refer only to a ‘late’ arrival at the final destination, and not an ‘early’ arrival, is also apparent from the second sentence of Article 7(1) of Regulation No 261/2004. Under that provision, the basis for determining the distance to be taken into consideration is the last destination at which the passenger’s arrival will be delayed ‘after the scheduled time’. It follows that Article 7(2) of Regulation No 261/2004 seeks only to reduce the compensation to be paid due to the inconvenience caused by a ‘delay’.
106. On the other hand, Article 7(2) of Regulation No 261/2004 does not provide for any reduction in the event of ‘cancellation’ linked to the ‘bringing forward’ of a flight, where the inconvenience results therefore from that bringing forward per se and not from a delay in arrival at the final destination. However, Article 5(1)(c)(ii) and (iii) of that regulation shows that the EU legislature takes the view that inconvenience can also result from the fact that the passenger is obliged to begin his or her journey earlier than planned. I have already illustrated this in the context of the analysis of the fourth question referred for a preliminary ruling, with the help of certain examples. (34)
107. The absence of specific provisions governing the possibility of a reduction in compensation in the event of the bringing forward of a flight must, consequently, be understood to mean that there is no such possibility for the air carrier.
108. That rules out the possibility that Article 7(2) of Regulation No 261/2004 may be applied by analogy to such cases, including that the periods of time set down there may act as reference points for the application of that provision in the situation of the bringing forward of a flight instead of a delay in arrival at the final destination. The fact that the EU legislature was aware of the situation of the ‘bringing forward’ of a flight and nonetheless refrained from putting in place a system similar to that provided for in respect of delays in Article 7(2) of Regulation No 261/2004 leads me to conclude that there is no legal loophole. In addition, as I have already explained in the context of the analysis of the fourth question referred for a preliminary ruling, such a system appears to me too rigid to be able to take sufficient account of each particular situation in which a flight may be brought forward. (35)
109. I wish to reiterate that, from a regulatory point of view, it is necessary to avoid any interpretation of Regulation No 261/2004 which may encourage air carriers to avoid their obligations to passengers, in particular the obligation to pay compensation, by altering the scheduling of a flight by bringing forward the time of departure.
110. Having observed, in the analysis of the fourth question referred for a preliminary ruling, that the ‘significant bringing forward’ of a flight can cause serious inconvenience for passengers, justifying the recognition of a right to compensation, I fail to see why air carriers should nonetheless be rewarded, on the basis of Article 7(2) of Regulation No 261/2004, for having avoided a ‘delay’. The absence of an (additional) ‘delay’ in the course of the journey is not capable of offsetting the inconvenience suffered on account of the flight at issue being brought forward.
111. For the reasons set out above, it seems to me necessary to exclude, as far as the ‘bringing forward’ of a flight is concerned, all possibility of a reduction in the compensation provided for in Article 7(1) of Regulation No 261/2004 on the basis of Article 7(2) of that regulation.
112. I propose that the answer to the fifth question referred for a preliminary ruling should be that in cases where the bringing forward of a flight constitutes a ‘cancellation’, the operating air carrier cannot reduce the compensation provided for in Article 7(1) of Regulation No 261/2004 on the basis of Article 7(2) of that regulation.
G.      Sixth question referred for a preliminary ruling
113. By its sixth question in Case C‑188/20, Azurair, which corresponds to the second question in Case C‑146/20, Corendon Airlines, the referring court wishes to know whether informing a passenger, before the beginning of his or her journey, that his or her flight has been brought forward must be regarded as an offer of re-routing within the meaning of Article 5(1)(a), read in conjunction with Article 8(1)(b), of Regulation No 261/2004.
114. Articles 5(1)(a) and 8(1)(b) of Regulation No 261/2004 provide, in case of cancellation, for a right to re-routing, under comparable transport conditions, to the final destination at the earliest opportunity.
115. In the judgment in Rusu, (36) the Court recalled that the air carrier’s offer of re-routing must provide the passengers concerned ‘with the information needed to enable them to make an effective choice, and in so doing either to cancel their flight and be reimbursed for the cost of their ticket, or to continue their transport to their final destination, under comparable transport conditions, [inter alia] at a later date’. That right to the necessary information also means that the passenger has no obligation to participate actively in seeking the information which the offer from the air carrier must contain. (37)
116. Given that the bringing forward of the time of departure of a flight must be classified as ‘cancellation’ within the meaning of Article 5, read in conjunction with Article 2(l), of Regulation No 261/2004, it seems logical to regard informing a passenger that his or her flight has been brought forward as such an ‘offer of re-routing’. Consequently, it is necessary to comply with the requirements mentioned in the foregoing point of the present Opinion with regard to the accuracy and completeness of the information provided to the passenger concerned in order to enable that passenger to make a choice in the knowledge of the rights conferred on him or her by Regulation No 261/2004.
117. The requirement of ‘comparable’ transport conditions within the meaning of Article 8(1)(b) of Regulation No 261/2004 refers to the flight originally booked and therefore to the air transport contract. In the present case, the passengers were transported by air and there is nothing to indicate that the transport conditions were not comparable to those of the original flight.
118. With regard to the requirement that the re-routing be carried out ‘at the earliest opportunity’, it should be observed that Article 8(1)(b) of Regulation No 261/2004 refers, in principle, to a time later than the original scheduled time of departure. The recitals of that regulation also appear to support that interpretation. Thus, recital 13 states that ‘passengers whose flights are cancelled should be able either to obtain reimbursement of their tickets or to obtain re-routing under satisfactory conditions, and should be adequately cared for while awaiting a later flight’. Recital 18 states, further, that ‘care for passengers awaiting an alternative or a delayed flight may be limited or declined if the provision of the care would itself cause further delay’.
119. The Court has yet to decide on the question of whether a flight which has been brought forward can also, in principle, constitute ‘re-routing at the earliest opportunity’ under that provision.
120. In that regard, it seems to me that the factors mentioned above do not prevent an interpretation of the concept of ‘re-routing’ referred to in Article 8(1)(b) of Regulation No 261/2004 which also includes an alternative flight with a time of departure prior to the original scheduled time. Inasmuch as that regulation seeks to find solutions for the most common cases of disruption to passenger air transport, namely ‘denied boarding’, ‘cancellation’ and ‘delay’ of flights, it is clear that the provisions at issue focus on those situations.
121. However, that does not mean that the EU legislature was completely indifferent to the bringing forward of flights. As I have already explained in the present Opinion, (38) it is apparent from the abovementioned provisions of Article 5(1)(c)(ii) and (iii) of Regulation No 261/2004 that the EU legislature considers the bringing forward of flights to be undesirable and that it is to be tolerated – without recognising a right to compensation – only within narrow parameters.
122. Thus, even though the ‘significant bringing forward’ of a flight may bring with it inconvenience for the passengers, it is nonetheless still a ‘re-routing at the earliest opportunity’ within the meaning of Article 5(1)(a) and Article 8(1)(b) of Regulation No 261/2004. Such inconvenience can, in accordance with that regulation, be taken into consideration by means of compensation. If the passengers take the view that, given how significantly it has been brought forward, it is in no way in their interests to take the flight in question, they can choose re-routing at a later date, in accordance with Article 8(1)(c), or reimbursement of the full cost of the ticket under Article 8(1)(a) of that regulation. As far as that last point is concerned, I would emphasise that the passenger must be in a position to exercise his or her rights freely and effectively. That is to say that, if the passenger decides to exercise his or her right to re-routing, the carrier must offer him or her a time of departure which is at the same time feasible for and acceptable to that passenger.
123. In the light of the considerations set out above, I propose that the answer to the sixth question referred for a preliminary ruling should be that an offer of re-routing within the meaning of Article 8(1)(b) of Regulation No 261/2004 can, under the conditions laid down in that article, take the form of informing a passenger, before the beginning of his or her journey, that his or her flight has been brought forward.
H.      Seventh question referred for a preliminary ruling
124. By the seventh question in Case C‑188/20, Azurair, the referring court seeks to establish whether, pursuant to Article 14(2) of Regulation No 261/2004, the operating air carrier is obliged to inform the passenger precisely of the company name and address from which he or she can claim compensation, the amount of that compensation and, if applicable, the documents that he or she should attach to his or her claim.
125. Under Article 14(2) of Regulation No 261/2004, an operating air carrier which denies boarding or cancels a flight ‘shall provide each passenger affected with a written notice setting out the rules for compensation and assistance’ in line with the provisions of that regulation.
126. The aim of that provision is, according to recital 20 of that regulation, to ensure that passengers are ‘fully informed of their rights’ in the event of denied boarding and of cancellation or long delay of flights, ‘so that they can effectively exercise their rights’. I would point out, by way of reminder, in that context that, according to the settled case-law of the Court, the provisions conferring rights on air passengers must be interpreted broadly. (39)
127. It follows from the wording and aim of that provision that the passenger must be put in a position to communicate usefully with the operating air carrier and that he or she must therefore, to that end, have its exact name and its contact address. In that regard, I would draw attention to the fact that the Court expressly stated in the judgment in Krijgsman that a passenger must be able to identify the entity liable for payment of the compensation specified in Article 7 of Regulation No 261/2004. (40)
128. Given that it is not unusual, in the field of passenger air transport, for connecting flights, consisting of a number of flights which are the subject of a single reservation, to be operated by different air carriers, (41) it appears to me essential that the passenger be able easily to determine the air carrier against which he or she can bring an action for compensation under Regulation No 261/2004.
129. Moreover, it appears clear to me that the passenger must have available to him or her the necessary information on the procedure to be followed. That includes, inter alia, information on the specific documents which he or she must provide in order to assert his or her rights. Those measures should put the passenger in a position to take a fully informed decision as to the pursuit of his or her interests.
130. The effective protection of passenger rights which Regulation No 261/2004 seeks to guarantee is ensured only if detailed information is provided to passengers. That is all the more important given that the ordinary passenger does not have particular knowledge in the field of law. (42) I consider, however, that even a layperson must be put in a position to rely on the rights conferred by EU law without necessarily having to take legal advice.
131. Consequently, contrary to what the German Government maintains, I take the view that it would be incompatible with that aim to limit the air carrier’s obligation to the mere communication of the wording of the provisions of the regulation to the passenger. Such an approach is blatantly inadequate in view of the fact that certain rights of air passengers, such as the right to compensation on account of a ‘long delay’, (43) were developed through case-law on the basis of an interpretation of Regulation No 261/2004. Furthermore, that would also be the case if the Court were to subscribe to the position taken in the present Opinion and to put the ‘significant bringing forward’ of a flight on the same footing as a ‘cancellation’. (44) In the interests of the effective protection of passengers, it is absolutely necessary that the obligation to information passengers of their rights be closely linked to the development of EU law.
132. With regard to the details of the right to compensation under Article 7 of Regulation No 261/2004, it seems sufficient for the operating air carrier to inform the passenger of the general calculation rules applicable for those purposes, such as they result from Article 7(1) and (2). It is not, on the other hand, necessary for the exact amount of the potential compensation to which the passenger is entitled in his or her individual case to be stated. Such information would concern not the ‘rules for compensation and assistance in line with this Regulation’ within the meaning of Article 14(2) of that regulation, but their application to an individual case.
133. For the reasons set out above, I propose that the answer to the seventh question referred for a preliminary ruling should be that Article 14(2) of Regulation No 261/2004 obliges the operating air carrier to inform the passenger of the exact company name and address to which a passenger can submit any claim for compensation and, if applicable, the documents that he or she should attach to his or her claim. As far as the extent of the right to compensation is concerned, it is sufficient, in order that the provisions of Article 14(2) be complied with, for the written information to set out the rules laid down by that regulation in that regard; it is not necessary for a specific amount to be calculated according to the individual case.
VI.    Conclusion
134. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany) and the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) as follows:
(1)      Article 3(2)(a) 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, must be interpreted as meaning that a passenger can have a ‘confirmed reservation’ if he or she has received, from a tour operator with which he or she has a contract, ‘other proof’ within the meaning of Article 2(g) of that regulation, assuring transport on a particular flight, individualised by points of departure and destination, times of departure and arrival and flight number, even though the operator has not made a seat reservation for that flight with the air carrier concerned or received confirmation of that reservation from that air carrier; that is not the case if he or she has received a document named ‘travel registration’ which is not an expression of a binding commitment on the part of the tour operator to provide the travel service specified in that document.
(2)      The mere fact that the tour operator’s reservation with the air carrier for the flight concerned has not been confirmed with the times of departure or arrival appearing in the passenger’s reservation with the tour operator, or that that reservation by the tour operator took place after the passenger’s reservation, does not exclude the possibility that an air carrier may, in relation to such a passenger, be an ‘operating air carrier’ within the meaning of Article 2(b) of Regulation No 261/2004.
(3)      The ‘scheduled time of arrival’ of a flight within the meaning of Article 2(h), Article 5(1)(c), the second sentence of Article 7(1) and Article 7(2) of Regulation No 261/2004 can, depending on the circumstances of the case, also be determined from ‘other proof’, within the meaning of Article 2(g) of that regulation, issued to a passenger by a tour operator.
(4)      There has been a cancellation of a flight within the meaning of Article 2(l) and Article 5(1) of Regulation No 261/2004 where the operating air carrier brings forward by at least two hours a flight booked as part of a package tour.
(5)      In cases where the bringing forward of a flight constitutes a cancellation, the operating air carrier cannot reduce the compensation provided for in Article 7(1) of Regulation No 261/2004 on the basis of Article 7(2) of that regulation.
(6)      An offer of re-routing within the meaning of Article 8(1)(b) of Regulation No 261/2004 can, under the conditions laid down in that article, take the form of informing a passenger, before the beginning of his or her journey, that his or her flight has been brought forward.
(7)      Article 14(2) of Regulation No 261/2004 obliges the operating air carrier to inform the passenger of the exact company name and address to which a passenger can submit any claim for compensation and, if applicable, the documents that he or she should attach to his or her claim. As far as the extent of the right to compensation is concerned, it is sufficient, in order that the provisions of Article 14(2) be complied with, for the written information to set out the rules laid down by that regulation in that regard; it is not necessary for a specific amount to be calculated according to the individual case.
1      Original language: French.
2      OJ 2004 L 46, p. 1.
3      OJ 2015 L 326, p. 1.
4      See point 48 et seq. of the present Opinion.
5      See point 80 et seq. of the present Opinion.
6      See point 124 et seq. of the present Opinion.
7      Emphasis added.
8      See the third paragraph of subsection 3 of section III of the order for reference in Case C‑188/20, Azurair.
9      Emphasis added.
10      See, in that regard, judgment of 11 May 2017, Krijgsman (C‑302/16, EU:C:2017:359, paragraph 29), from which it is apparent that ‘the discharge of obligations by the operating air carrier pursuant to Regulation No 261/2004 is without prejudice to its right to seek compensation, under the applicable national law, from any person who caused the air carrier to fail to fulfil its obligations, including third parties, as Article 13 of that regulation provides’.
11      See judgment of 26 March 2020, Primera Air Scandinavia (C‑215/18, EU:C:2020:235, paragraphs 48 and 49).
12      See the third paragraph of subsection 3 of section III of the order for reference in Case C‑188/20, Azurair.
13      Judgment of 26 February 2013 (C‑11/11, EU:C:2013:106).
14      Judgment of 26 February 2013 (C‑11/11, EU:C:2013:106).
15      See the third paragraph of section II and subsection 3 of section IV of the order for reference in Case C‑188/20, Azurair.
16      Judgment of 10 July 2008, Emirates Airlines (C‑173/07, EU:C:2008:400, paragraph 40).
17      Judgments of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 30), and of 13 October 2011, Sousa Rodríguez and Others (C‑83/10, EU:C:2011:652, paragraph 27).
18      Judgment of 13 October 2011, Sousa Rodríguez and Others (C‑83/10, EU:C:2011:652, paragraph 33 et seq.).
19      Emphasis added.
20      See, in that regard, Arnold, K., ‘EU Air Passenger Rights: Assessment of the Proposal of the European Commission for the Amendment of Regulation (EC) 261/2004 and of Regulation (EC) 2027/97’, Air and Space Law, 2013, No 6, p. 418, who criticises the fact that Regulation No 261/2004 does not contain provisions which expressly cover that situation and, in particular, which establish the obligations of air carriers to passengers and the passengers’ right to assistance. The author expresses support for a reform of that regulation.
21      See, to that effect, Hopperdietzel, H., Fluggastrechte-Verordnung, 18th edition, Munich 2021, Article 6(29), who argues that the bringing forward of a flight (like its ‘long delay’) considerably undermines a person’s right to deal with his or her own affairs freely and without disruption by third parties. According to the author, the inconvenience is even more serious than that caused by the extended journey time resulting from a delay in the flight.
22      See points 85 and 86 of the present Opinion.
23      See point 83 of the present Opinion.
24      Judgment of 19 November 2009 (C‑402/07 and C‑432/07, EU:C:2009:716).
25      See, in that regard, judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 48 et seq.), in which the Court established that the damage sustained by air passengers in cases of ‘cancellation’ or ‘long delay’ was comparable. The Court concluded that, in accordance with the principle of equal treatment, passengers whose flights are ‘delayed’ and passengers whose flights are ‘cancelled’ could not be treated differently. Consequently, the Court decided that passengers whose flights are ‘delayed’ could rely on the right to compensation laid down in Article 7 of Regulation No 261/2004 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.
26      See point 89 of the present Opinion.
27      See judgments of 22 June 2016, Mennens (C‑255/15, EU:C:2016:472, paragraph 26), and of 22 April 2021, Austrian Airlines (C‑826/19, EU:C:2021:318, paragraph 26).
28      See, to that effect, judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 44), in which the Court established the correlation between situations of ‘long delay’ and the right to compensation.
29      See points 85 and 86 of the present Opinion.
30      See, to that effect, Hopperdietzel, H., Fluggastrechte-Verordnung, 18th edition, Munich 2021, Article 6(29), who considers that any bringing forward of a flight by more than three hours should be regarded as ‘significant’ and thereby giving rise to compensation. The author is in favour of an analogous application of the threshold of three hours which characterises ‘long delay’. See, also, Maruhn, J., Fluggastrechte-Verordnung, 1st edition, Berlin 2016, preliminary remarks in respect of Article 5 and Article 6(9), who takes the view that the bringing forward of a flight by several hours should be regarded as a cancellation of the flight.
31      See the second paragraph of section I of the order for reference in Case C‑188/20, Azurair.
32      Emphasis added.
33      Judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 63).
34      See points 85 and 86 of the present Opinion.
35      See point 97 of the present Opinion.
36      Judgment of 29 July 2019 (C‑354/18, EU:C:2019:637).
37      Judgment of 29 July 2019, Rusu (C‑354/18, EU:C:2019:637, paragraphs 53 to 55).
38      See point 85 et seq. of the present Opinion.
39      See judgments of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 45), and of 22 April 2021, Austrian Airlines (C‑826/19, EU:C:2021:318, paragraph 61).
40      Judgment of 11 May 2017, Krijgsman (C‑302/16, EU:C:2017:359, paragraph 28).
41      See, in that regard, judgment of 11 July 2019, České aerolinie (C‑502/18, EU:C:2019:604).
42      Drake, S., ‘Delays, cancellations and compensation: Why are air passengers still finding it difficult to enforce their EU rights under Regulation 261/2004?’, Maastricht Journal of European and Comparative Law, 4/2020, vol. 27, No 2, pp. 233 and 241, considers that the complexity of the provisions of Regulation No 261/2004 may stand in the way of their effective implementation. According to the author, consumers should be provided with the means necessary to make it possible for them to assert their rights quickly and in a less formal and onerous manner, without the involvement of lawyers. The author takes the view that Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (OJ 2007 L 199, p. 1) establishes an ideal procedure for those purposes.
43      Judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 69).
44      See point 89 of the present Opinion.