Provisional text

ORDER OF THE COURT (Eighth Chamber)

2 December 2022 ( )

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Air transport – Regulation (EC) No 261/2004 – Article 5(1)(c)(iii) – Compensation and assistance to passengers – Cancellation of a flight – Right to compensation in the case of an offer of re-routing – Conditions – Divergence between different language versions of a provision of EU law – Re-routing allowing passengers to depart no more than one hour before their scheduled time of departure)

In Case C‑229/22,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunalul Specializat Cluj (Specialist Court, Cluj, Romania), made by decision of 25 January 2022, received at the Court on 29 March 2022, in the proceedings

NC

v

Compania Naţională de Transporturi Aeriene Tarom SA,

THE COURT (Eighth Chamber),

composed of M. Safjan, President of the Chamber, N. Jääskinen and M. Gavalec (Rapporteur), Judges,

Advocate General: L. Medina,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 This request for a preliminary ruling concerns the interpretation of Article 5(1)(c)(iii) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).

2 The request has been made in proceedings between a passenger, NC, and an air carrier, Compania Naţională de Transporturi Aeriene Tarom SA (‘Tarom’), concerning its refusal to compensate him when the scheduled time of departure of his flight was postponed.

Legal context

3 Recitals 1 and 12 of Regulation No 261/2004 state:

‘(1) Action by the [European Union] in the field of air transport should aim, among other things, at ensuring a high level of protection for passengers. Moreover, full account should be taken of the requirements of consumer protection in general.

…

(12) The trouble and inconvenience to passengers caused by cancellation of flights should also be reduced. This should be achieved by inducing carriers to inform passengers of cancellations before the scheduled time of departure and in addition to offer them reasonable re-routing, so that the passengers can make other arrangements. Air carriers should compensate passengers if they fail to do this, except when the cancellation occurs in extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.’

4 Article 5 of that regulation, entitled ‘Cancellation’, states:

‘(1) In case of cancellation of a flight, the passengers concerned shall:

…

(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless:

…

(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.

…’

5 Article 7 of that regulation, entitled ‘Right to compensation’, states, in paragraph 1:

‘Where reference is made to this Article, passengers shall receive compensation amounting to:

(a) EUR 250 for all flights of 1 500 kilometres or less;

…

In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay the passenger's arrival after the scheduled time.’

The dispute in the main proceedings and the question referred for a preliminary ruling

6 The applicant in the main proceedings made a reservation with Tarom for a flight from Cluj-Napoca (Romania) to Bucharest (Romania). That flight was operated by Tarom on 18 May 2020 and was scheduled to depart at 19.40 and land at 20.50 on the same day.

7 When checking in at the airport in Cluj-Napoca on 18 May 2020 at 18.00, the applicant in the main proceedings was informed that the direct flight Cluj-Napoca – Bucharest, for which he had made a reservation, had been replaced with a flight with an intermediate stop in Iași (Romania). The appellant accepted that flight, which departed Cluj-Napoca at 19.55 and arrived in Bucharest at 22.30.

8 In view of the fact that the flight of 18 May 2020, for which he had made a reservation, had been cancelled, the applicant in the main proceedings requested on the same day by email that Tarom pay him the compensation of EUR 250 provided for in Article 7(1)(a) of Regulation No 261/2004, read in conjunction with Article 5(1)(c)(iii) of that regulation.

9 Following Tarom’s refusal to grant his request, the applicant in the main proceedings brought an action before the Judecătoria Cluj-Napoca (Court of First Instance, Cluj-Napoca, Romania) on 17 August 2020 to obtain the compensation payment requested. By judgment of 26 February 2021, that court dismissed the action on the ground that the exception of the passenger’s right to compensation in the event of a cancellation of a flight, as set out in Article 5(1)(c)(iii) of that regulation, was applicable since the applicant in the main proceedings had been delayed by only 1 hour and 40 minutes.

10 The applicant lodged an appeal against that judgment before the Tribunalul Specializat Cluj (Specialist Court, Cluj, Romania). He submits that Article 5(1)(c)(iii) of Regulation No 261/2004 had been infringed, because the alternative flight had not taken off one hour at the latest before the scheduled time of departure.

11 The referring court notes, in this regard, that in the Romanian-language version, that provision establishes that, in the event of a flight cancellation, the passengers concerned are entitled to compensation by the operating air carrier in accordance with Article 7 of that regulation unless they are informed of the flight cancellation less than seven days before the scheduled time of departure and that that carrier offers re-routing, allowing them to depart one hour at the latest before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival (‘în cazul în care sunt informați despre această anulare cu mai puțin de șapte zile înainte de ora de plecare prevăzută și li se oferă o redirecționare care să le permită să plece cel târziu cu o oră înainte de ora de plecare prevăzută și să ajungă la destinația finală în mai puțin de două ore după ora de sosire prevăzută’).

12 The referring court notes, however, that the Romanian-language version of that provision differs from other language versions of that provision with regard to the determination of the time of departure of the re-routed flight. That is because, while the Romanian-language version of Article 5(1)(c)(iii) of Regulation No 261/2004 provides that the time of departure of the re-routed flight must be scheduled ‘at most’ one hour before the time of departure of the flight that was cancelled, the English-language version (‘no more than one hour before the scheduled time of departure’) and the French-language version (‘au plus tôt une heure avant l’heure de départ prévue’) of that provision provide that the time of departure of the re-routed flight cannot be more than one hour earlier than the time of departure of the cancelled flight. The referring court, while emphasising that it would appear from the case-law of the Court on that regulation that the exception in Article 5(1)(c)(iii) of that regulation should be given the meaning of that of the English- and French-language versions in particular of that provision, deems it necessary that the Court determine the correct interpretation of that provision.

13 In those circumstances, the Tribunalul Specializat Cluj (Specialist Court, Cluj) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘Must Article 5(1)(c)(iii) of [Regulation No 261/2004] be interpreted:

(a) as meaning that an air carrier is exempt from paying compensation in the case where the passengers concerned are informed of the cancellation less than seven days before the time of departure and are offered re-routing, allowing them to depart at the latest one hour before the scheduled time of departure and to reach their final destination less than two hours … [after] the scheduled time of arrival?

or, conversely,

(b) as meaning that an air carrier is exempt from paying compensation in the case where the passengers concerned are informed of the cancellation less than seven days before the 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?’

Consideration of the question referred

14 In accordance with Article 99 of the Rules of Procedure of the Court of Justice, where the reply to the question referred for a preliminary ruling may be clearly deduced from existing case-law or where the answer to the question admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.

15 It is appropriate to apply that provision in the context of the present reference for a preliminary ruling.

16 By its question, the referring court asks, in essence, whether Article 5(1)(c)(iii) of Regulation No 261/2004 must be interpreted as meaning that, in the event of a cancellation of a flight, the passengers concerned have the right to compensation by the operating air carrier in accordance with Article 7 of that regulation, unless they are informed of that cancellation less than seven days before the 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.

17 It should be stated that there is a divergence between the various language versions of Article 5(1)(c)(iii) of Regulation No 261/2004.

18 A comparison of those versions shows that in the Romanian- and Bulgarian-language versions of that provision, passengers of the cancelled flight have the right, in accordance with Article 7 of that regulation, to compensation by the operating air carrier unless, when they are informed of the cancellation of the flight less than seven days before the scheduled time of departure, that carrier offers re-routing, allowing them to depart one hour ‘at the latest’ before the scheduled time of departure (‘cel târziu cu o oră înainte de ora de plecare prevăzută’ and ‘което им позволява да заминат не по-късно от един час преди началото на полета по разписание’) and to reach their final destination less than two hours after the scheduled time of arrival.

19 However, in its French-language version, Article 5(1)(c)(iii) of Regulation No 261/2004 provides that in the event of a cancellation of a flight, the passengers concerned have the right to compensation by the operating air carrier, in accordance with Article 7 of that regulation, unless 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.

20 Twenty other language versions of that provision correspond with the French-language version of that provision, namely the language versions in Spanish (‘que les permita salir con no más de una hora de antelación con respecto a la hora de salida prevista’), in Czech (‘které jim umožní odletět nejdříve jednu hodinu před plánovaným časem odletu’), in Danish (‘så de kan afrejse højst en time før det planlagte afgangstidspunkt’), in German (‘ermöglicht, nicht mehr als eine Stunde vor der planmäßigen Abflugzeit abzufliegen’), in Estonian (‘võimaldab neil välja lennata mitte rohkem kui üks tund enne kavandatud väljumisaega’), in Greek (‘επιτρέπει να φύγουν όχι περισσότερο από μία ώρα νωρίτερα από την προγραμματισμένη ώρα αναχώρησης’), in English (‘allowing them to depart no more than one hour before the scheduled time of departure’), in Croatian (‘čime im je omogućeno da otputuju ne više od sat vremena ranije od predviđenog vremena polaska’), in Italian (‘partire con un volo alternativo non più di un’ora prima dell’orario di partenza previsto’), in Latvian (‘viņi var izlidot ne vairāk kā vienu stundu pirms iepriekš paredzētā izlidošanas’), in Lithuanian (‘išvykstant ne daugiau kaip viena valanda anksčiau už numatytą išvykimo laiką’), in Hungarian (‘hogy legfeljebb egy órával a menetrend szerinti indulás időpontja előtt induljanak’), in Maltese (‘li tħallihom jitilqu mhux aktar minn siegħa qabel il-ħin tat-tluq skedat’), in Dutch (‘die niet eerder dan één uur voor de geplande vertrektijd vertrekt’), in Polish (‘umożliwiającą im wylot nie więcej niż godzinę przed planowym czasem odlotu’), in Portuguese (‘que lhes permitisse partir até uma hora antes da hora programada de partida’), in Slovak (‘ktoré im umožní odletieť maximálne hodinu pred plánovaným časom odletu’), in Slovenian (‘ki jim zagotavlja odhod največ eno uro pred odhodom po voznem redu in prihod’), in Finnish (‘jonka mukaan hänen olisi lähdettävä korkeintaan tuntia ennen aikataulun mukaista lähtöaikaa’) and in Swedish (‘så att de kan avresa högst en timme före den tidtabellsenliga avgångstiden’).

21 In that regard, it should be noted that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all languages of the European Union. Where there is a divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part (see, to that effect, judgments of 27 October 1977, Boucherau, 30/77, EU:C:1977:172, paragraph 14; of 9 July 2020, Banca Transilvania, C‑81/19, EU:C:2020:532, paragraph 33; and of 30 June 2022, Allianz Elementar Versicherung, C‑652/20, EU:C:2022:514, paragraph 36).

22 In that regard, it should be borne in mind that it follows from recitals 1 and 12 of Regulation No 261/2004 that the regulation seeks to strengthen the rights of passengers of air carriers. The European Union’s activity in the field of air transport aims, in particular, to ensure a high level of protection for passengers, particularly by reducing the trouble and inconvenience to passengers caused by cancellation of flights.

23 In that connection, it is apparent from Article 5(1)(c)(iii) of that regulation and the conditions set out in that provision that passengers who are informed of the cancellation of their flight less than seven days before the scheduled time of departure and where the air carrier is unable to offer to re-route them on a flight which departs no more than one hour before the scheduled time of departure and reaches the final destination less than two hours after the scheduled time of arrival are entitled to fixed compensation.

24 That provision thus sets out two cumulative conditions, namely, that the flight offered as re-routing departs no more than one hour before the scheduled time of departure and that, moreover, it reaches the final destination less than two hours after the scheduled time of arrival on the other. Therefore, it is only where those two conditions are met that the passenger does not have a right to compensation (see, to that effect, order of 27 June 2018, flightright, C‑130/18, not published, EU:C:2018:496, paragraph 17).

25 In that regard, it should be observed that that provision gives air carriers a certain amount of discretion in order to offer a passenger whose flight is cancelled at the very last moment a re-routed flight of which the duration is longer than that of the cancelled flight, without being required to compensate him or her. If an air carrier opts for re-routing, that provision allows that air carrier to move the time of departure of the passenger concerned forward by one hour and to delay his or her arrival by less than two hours.

26 The amount of that discretion varies depending on when the operating air carrier informs the passenger of the cancellation of his or her flight; it is broader in the situation referred to in Article 5(1)(c)(ii) of that regulation and narrower in that referred to in Article 5(1)(c)(iii). In the latter case, the operating air carrier must offer to re-route the passenger on a flight the schedule of which differs as little as possible from the original schedule.

27 However, the Romanian-language version of Article 5(1)(c)(iii) of that regulation does not set out that the schedule of the re-routed flight offered differs as little as possible from that of the original schedule. The Romanian-language version, similar to the Bulgarian-language version, effectively allows the operating air carrier to move forward the time of departure of an aircraft as it pleases and in an almost unlimited manner, which runs counter to the objective of Regulation No 261/2004 of ensuring a high level of protection for passengers and may undermine the certainty of contractual relationships by creating a very distinct imbalance in the air carrier’s favour.

28 Therefore, in the light of the foregoing considerations, the answer to the question referred is that Article 5(1)(c)(iii) of Regulation No 261/2004 must be interpreted as meaning that in the event of cancellation of a flight, the passengers concerned have the right to compensation by the operating air carrier in accordance with Article 7 of that regulation, unless they are informed of the cancellation less than seven days before the scheduled time of departure, if that air carrier offers them 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.

Costs

29 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, the Court (Eighth Chamber) hereby orders:

Article 5(1)(c)(iii) 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 in the event of cancellation of a flight, the passengers concerned have the right to compensation by the operating air carrier in accordance with Article 7 of that regulation, unless they are informed of the cancellation less than seven days before the scheduled time of departure, if that air carrier offers them 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.

[Signatures]