Provisional text

ORDER OF THE COURT (Eighth Chamber)

27 September 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 – Common rules on compensation and assistance to passengers in the event of cancellation or long delay of flights – Article 5(1)(c) – Right to compensation if flight is cancelled – Contract for carriage concluded through an online travel agent – Information on the cancellation of the flight communicated by means of an email address automatically generated by the travel agent – Failure to ensure that the passenger was properly informed)

In Case C‑307/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht Kleve (Regional Court, Cleves, Germany), made by decision of 25 March 2021, received at the Court on 14 May 2021, in the proceedings

AB and Others

v

Ryanair DAC,

THE COURT (Eighth Chamber),

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

Advocate General: P. Pikamäe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– AB and Others, by C. Jansen, Rechtsanwalt,

– Ryanair DAC, by S. Hensel, Rechtsanwältin,

– the European Commission, by G. Braun, K. Simonsson and G. Wilms, acting as Agents,

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 The present request for a preliminary ruling concerns the interpretation of Article 5(1)(c) and Article 7 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 AB and a number of other passengers, and the air carrier Ryanair DAC, concerning the latter’s refusal to pay those passengers compensation following the cancellation of their flight.

Legal context

3 Recitals 1, 7 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.

…

(7) In order to ensure the effective application of this Regulation, the obligations that it creates should rest with the operating air carrier who performs or intends to perform a flight, whether with owned aircraft, under dry or wet lease, or on any other basis.

…

(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 2 of that regulation, entitled ‘Definitions’, 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;

…’

5 Article 3(5) of that regulation, entitled ‘Scope’, specifies:

‘This Regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2. Where an operating air carrier which has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger.’

6 Article 5(1) and (4) of the same regulation, entitled ‘Cancellation’, provides:

‘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:

(i) they are informed of the cancellation at least two weeks before the scheduled time of departure; or

…

4. The burden of proof concerning the questions as to whether and when the passenger has been informed of the cancellation of the flight shall rest with the operating air carrier.’

7 Article 7(1) of Regulation No 261/2004, entitled ‘Right to compensation’, provides:

‘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;

…’

8 Article 13 of that Regulation, entitled ‘Right of redress’, 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.’

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

9 AB and the other appellants in the main proceedings seek from Ryanair, the operating air carrier, compensatory payments of EUR 400 each plus interest under Article 7(1)(b) of Regulation No 261/2004 as a result of the cancellation of their flight operated by that air carrier.

10 Those appellants had booked a flight from Düsseldorf-Weeze (Germany) to Tangier (Morocco) for 6 April 2019 with that air carrier via the internet portal of the agent Kiwi.com.

11 When the booking was made, the air carrier was provided with a telephone number and an email address; the email address was most likely automatically generated by the travel agent Kiwi.com, to which the appellants had no access. The air carrier sent a message to that email address on 14 December 2018, stating that the flight booked by the appellants was cancelled.

12 At first instance, the appellants in the main proceedings argued that they had given their own email addresses and a telephone number when they booked the flight. They did not know that the travel agent had communicated another email address to the operating air carrier.

13 Since the travel agent did not forward any message from the operating air carrier, those appellants only learned that their flight had been cancelled on 5 April 2019, when they tried to check in online.

14 By judgment of 29 July 2020, the Amtsgericht Geldern (District Court, Geldern, Germany) dismissed the action brought by the appellants on the ground that the operating air carrier had fulfilled its obligation to provide information under Article 5(1)(c)(i) of Regulation No 261/2004 to a sufficient extent when it sent the information relating to the cancellation of the flight to the email address which had been provided when the booking was made.

15 The appellants in the main proceedings brought an appeal against that judgment before the Landgericht Kleve (Regional Court, Kleve, Germany), the referring court, and that court raises the question whether, in a situation such as that in the main proceedings, the operating air carrier fulfilled its obligation to provide information under Regulation No 261/2004. More specifically, that court asks whether, in order to fulfil the requirements of Article 5(1) of that regulation, the issue of whether or not the air carrier was unaware of the presence of an intermediary is relevant or whether that provision instead provides for a kind of strict liability for the air carrier.

16 In those circumstances, the Landgericht Kleve (Regional Court, Kleve) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Are Article 5(1)(c) and Article 7 of Regulation [No 261/2004] to be interpreted as meaning that the operating air carrier must pay compensation in the event of a flight cancellation of which the passenger was not informed at least two weeks prior to the scheduled time of departure, even though the air carrier sent that information in good time before the expiry of two weeks to the only email address communicated to it in the course of the booking, without, however, being aware that the booking had been made via an agent or its internet platform and that the email address communicated by the booking platform could be used at most to contact the agent, and not the passenger directly?’

Consideration of the question referred

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

18 That provision should be applied in the present case.

19 By its question, the referring court asks, in essence, whether Article 5(1)(c) and Article 7 of Regulation No 261/2004 must be interpreted as meaning that the operating air carrier must pay the compensation provided for by those provisions in the event of a flight cancellation of which the passenger was not informed at least two weeks prior to the scheduled time of departure, where that carrier sent the information in good time to the only email address communicated to it in the course of the booking, without, however, being aware that that address could be used only to contact the travel agent, through which the reservation had been made, and not the passenger directly, and that that travel agent did not send the information to the passenger in good time.

20 Article 5(1)(c) of Regulation No 261/2004 provides that, in the case of cancellation of a flight, the passengers concerned have a right to receive compensation from the operating air carrier in accordance with Article 7 of that regulation, unless they are informed of the cancellation of the flight under the conditions set out in Article 5(1)(c).

21 In accordance with Article 5(4) of Regulation No 261/2004, the operating air carrier has the burden of proving that it informed passengers of the cancellation of the flight in question and of proving the period within which it did so.

22 It follows from the clear wording of those provisions that, where the operating air carrier is unable to prove that the passenger concerned was informed of the cancellation of his or her flight at least two weeks before the scheduled time of departure, it is required to pay compensation in accordance with Article 7 of Regulation No 261/2004 (judgment of 21 December 2021, Airhelp, C‑263/20, EU:C:2021:1039, paragraph 51).

23 In that regard, the Court has already held that that interpretation applies not only when the contract for carriage has been entered into directly between the passenger concerned and the air carrier, but also when that contract has been entered into via a third party such as an internet platform, as is the case in the main proceedings (judgments of 11 May 2017, Krijgsman, C‑302/16, EU:C:2017:359, paragraph 26, and of 21 December 2021, Airhelp, C‑263/20, EU:C:2021:1039, paragraph 52).

24 As is apparent both from Article 3(5) of Regulation No 261/2004 and from recitals 7 and 12 thereof, the operating air carrier which performs or intends to perform a flight is alone liable to compensate passengers for failure to fulfil the obligations under that regulation including, in particular, the obligation to inform set out in Article 5(1)(c) thereof (judgments of 11 May 2017, Krijgsman, C‑302/16, EU:C:2017:359, paragraph 27, and of 21 December 2021, Airhelp, C‑263/20, EU:C:2021:1039, paragraph 53).

25 Such an interpretation is the only one which fulfils the objective of ensuring a high level of protection for passengers set out in recital 1 of Regulation No 261/2004 by guaranteeing that a passenger whose flight was booked via a third party before its cancellation is able to identify the entity liable for payment of the compensation specified in Article 5(1)(c) and Article 7 of that regulation (judgment of 11 May 2017, Krijgsman, C‑302/16, EU:C:2017:359, paragraph 28).

26 That interpretation is not affected by the fact that the operating air carrier did not know that, when it sent the information relating to the cancellation of the flight concerned, it did not communicate directly with the passenger. What matters is that the passenger was not informed of the cancellation of the flight in good time. In such a situation, and as pointed out in paragraphs 24 and 25 above, the operating air carrier is alone liable to compensate the passenger for failure to fulfil the obligation to provide information.

27 It is only if the passenger expressly authorises the intermediary to receive the information transmitted by the operating air carrier and that carrier is aware of that authorisation, that it may be considered that the conditions laid down in Article 5(1)(c) of Regulation No 261/2004 are satisfied, where the operating air carrier forwards the information relating to changes to a flight to the intermediary without the intermediary subsequently forwarding it to the passenger (see, to that effect, judgment of 21 December 2021, Airhelp, C‑263/20, EU:C:2021:1039, paragraph 44). However, it is apparent from the order for reference that there was no such authorisation in the main proceedings.

28 Nonetheless, it should be noted that the discharge of obligations by the operating air carrier pursuant to Regulation No 261/2004 is without prejudice to its rights 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 (judgments of 11 May 2017, Krijgsman, C‑302/16, EU:C:2017:359, paragraph 29 and the case-law cited, and of 21 December 2021, Airhelp, C‑263/20, EU:C:2021:1039, paragraph 54).

29 Since that Article 13 refers expressly to third parties, it follows that Regulation No 261/2004 does not make the right of the operating air carrier to seek compensation conditional on the existence of a contract binding that carrier and the intermediary to which the air passenger had recourse in order to reserve his or her flight (judgment of 21 December 2021, Airhelp, C‑263/20, EU:C:2021:1039, paragraph 55).

30 Having regard to the foregoing considerations, the answer to the question referred for a preliminary ruling is that Article 5(1)(c) and Article 7 of Regulation No 261/2004 must be interpreted as meaning that the operating air carrier must pay the compensation provided for by those provisions in the event of a flight cancellation of which the passenger was not informed at least two weeks prior to the scheduled time of departure, where that carrier sent the information in good time to the only email address communicated to it in the course of the booking, without, however, being aware that that address could be used only to contact the travel agent, through which the reservation had been made, and not the passenger directly and that that travel agent did not send the information to the passenger in good time.

Costs

31 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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

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

Article 5(1)(c) and Article 7 of Regulation (EC) No 261/2004 of the European Parliament and 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 the operating air carrier must pay the compensation provided for by those provisions in the event of a flight cancellation of which the passenger was not informed at least two weeks prior to the scheduled time of departure, where that carrier sent the information in good time to the only email address communicated to it in the course of the booking, without, however, being aware that that address could be used only to contact the travel agent, through which the reservation had been made, and not the passenger directly and that that travel agent did not send the information to the passenger in good time.

[Signatures]