OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 28 March 2019 ( 1 )

Case C‑163/18

HQ,

IP, legally represented by HQ,

JO

v

Aegean Airlines SA

(Request for a preliminary ruling from the Rechtbank Noord-Nederland (District Court, Noord-Nederland, Netherlands))

(Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights — Article 8(2) — Right to reimbursement — Directive 90/314/EEC — Package tour — Cancellation of the flight — Insolvency of the tour operator — Right to reimbursement of the cost of the air ticket by the air carrier)

I. Introduction

1. The request for a preliminary ruling from the Rechtbank Noord-Nederland (District Court, Noord-Nederland, Netherlands) concerns the interpretation of Article 8(2) of Regulation (EC) No 261/2004, ( 2 ) which grants harmonised rights to passengers in the event of cancellation of their flight, read in conjunction with the provisions of Directive 90/314/EEC, ( 3 ) which relates to the rights of consumers who have purchased a package tour.

2. This request has been made in the context of a dispute between several passengers and an air carrier, regarding an application made by the persons concerned for reimbursement of the cost of air tickets following the cancellation of a flight forming part of the package tour which they had purchased from another company. Having been unable to obtain reimbursement from that tour operator on account of its insolvency, the applicants in the main proceedings argue that the air carrier responsible for the cancelled flight is obliged to compensate them in such a situation.

3. For the reasons set out in this Opinion, I consider that Article 8(2) of Regulation No 261/2004 must be interpreted as meaning that a passenger who has a right to obtain reimbursement of the cost of an air ticket from the organiser of his package tour, on the basis of the national provisions transposing Directive 90/314, does not have the right to claim such reimbursement from the operating air carrier, on the basis of the regulation in question, even when that organiser is financially incapable of reimbursing the cost of the ticket and has failed to fulfil its obligation to provide the guarantees set out by that directive to ensure such reimbursement.

II. Legal framework

A. Directive 90/314

4. According to Article 1 of Directive 90/314, ‘the purpose of [that directive] is to approximate the laws, regulations and administrative provisions of the Member States relating to packages sold or offered for sale in the territory of the Community’.

5. Article 4(6)(b) of that directive provides that ‘if …, for whatever cause, other than the fault of the consumer, the organiser cancels the package before the agreed date of departure, the consumer shall be entitled … to be repaid as soon as possible all sums paid by him under the contract’.

6. Under Article 5(1) of that directive, ‘Member States shall take the necessary steps to ensure that the organiser and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organiser and/or retailer or by other suppliers of services without prejudice to the right of the organiser and/or retailer to pursue those other suppliers of services’.

7. Article 7 of that directive requires that ‘the organiser and/or retailer party to the contract shall provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency’.

8. On 1 July 2018, Directive 90/314 was repealed by Article 29 of Directive (EU) 2015/2302. ( 4 ) However, the former directive is applicable in the present case, in view of the date of the facts in the main proceedings.

B. Regulation No 261/2004

9. According to recitals 1, 2 and 16 of Regulation No 261/2004: ‘(1) Action by the Community 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. (2) Denied boarding and cancellation or long delay of flights cause serious trouble and inconvenience to passengers. … (16) In cases where a package tour is cancelled for reasons other than the flight being cancelled, this Regulation should not apply.’

10. Under the heading ‘Subject’, Article 1(1)(b) of that regulation provides that that measure ‘establishes, under the conditions specified herein, minimum rights for passengers when [inter alia] their flight is cancelled’.

11. Under the heading ‘Scope’, Article 3(6) of that regulation provides that that measure ‘shall not affect the rights of passengers under Directive 90/314 …’ and that it ‘shall not apply in cases where a package tour is cancelled for reasons other than cancellation of the flight’.

12. Under the heading ‘Cancellation’, Article 5(1)(a) of that regulation states that ‘in case of cancellation of a flight, the passengers concerned shall … be offered assistance by the operating air carrier in accordance with Article 8’.

13. Under the heading ‘Right to reimbursement or re-routing’, Article 8(1) and (2) of Regulation No 261/2004 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 … to their final destination at the earliest opportunity; or (c) re-routing … to their final destination at a later date at the passenger’s convenience …. 2. Paragraph 1(a) shall also apply to passengers whose flights form part of a package, except for the right to reimbursement where such right arises under Directive [90/314].’

14. Article 13 of that regulation, entitled ‘Right of redress’, states that ‘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’.

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

15. Aegean Airlines SA, an airline established in Greece, entered into a charter contract with G. S. Charter Aviation Services Ltd (‘G.S. Charter’), a company established in Cyprus, under which Aegean Airlines SA was to make available to G.S. Charter a certain number of seats, in return for payment of the charter price. G.S. Charter subsequently resold the seats, inter alia to Hellas Travel BV (‘Hellas’), a tour operator established in the Netherlands.

16. G.S. Charter and Hellas concluded an agreement whereby, from 1 May to 24 September 2015, a return flight between Corfu (Greece) and Eelde (Netherlands) was to be operated every Friday, a deposit was to be paid to Aegean Airlines and the payment for the scheduled return flight on the following Friday was to be made every Monday.

17. On 19 March 2015, HQ, IP — legally represented by HQ — and JO (‘HQ and Others’) booked return flights between Eelde and Corfu through Hellas. Those flights formed part of a travel package, for the purposes of Directive 90/314, the price of which was paid to Hellas.

18. HQ and Others received electronic tickets bearing the logo of Aegean Airlines for those flights, scheduled for 17 and 24 July 2015, as well as documents referring to Hellas as the charterer.

19. On 13 July 2015, Hellas sent HQ and Others a letter in which it informed them that those flights, as well as all flights to and from Corfu, had been cancelled, because of both the slump in the level of bookings and cancellations arising from ‘uncertainties surrounding the status of Greece’ at that time. In addition, Hellas stated therein that intensive negotiations with Aegean Airlines had not made it possible to find a solution for Hellas’ passengers and customers.

20. In an undated email, Hellas told HQ and Others that, since it was no longer able to pay the agreed price to Aegean Airlines, Aegean Airlines had decided to no longer operate flights as from 17 July 2015.

21. On 3 August 2016, Hellas was declared insolvent. It did not reimburse to HQ and Others the cost of their air tickets.

22. HQ and Others brought proceedings before a Netherlands court requesting that Aegean Airlines be ordered to pay them compensation for the cancellation of the flight of 17 July 2015 and to reimburse to them the cost of the related tickets, pursuant, respectively, first, to both Article 5(1)(c) and Article 7(1)(b) of Regulation No 261/2004 and, secondly, to Article 8(1)(a) thereof.

23. Aegean Airlines opposed those claims, alleging that Regulation No 261/2004 was not applicable in such circumstances, in particular in the light of Article 3(6) thereof.

24. However, by interim decision of 14 November 2017, the court seised rejected that defence plea, on the grounds that the applicability of Regulation No 261/2004 to passengers with a package travel arrangement is excluded under that provision only if the cancellation is independent of the willingness of the air carrier to operate the flight or flights forming part of that travel package, whereas this was not the case here. ( 5 )

25. Accordingly, pursuant to that regulation, that court awarded HQ and Others the flat-rate compensation which they sought on account of the cancellation of the flight in question. ( 6 ) However, that court did not rule on the request for reimbursement of the cost of the air tickets.

26. In that regard, Aegean Airlines had argued in its defence that, even if Regulation No 261/2004 were applicable in the present case, the fact remained that a package tour was at issue here, with the result that under Article 8(2) of that regulation, Aegean Airlines was not required to reimburse to HQ and Others the amount which they had paid to Hellas, the operator of that tour, for the purchase of their air tickets.

27. Against that background, by decision of 21 February 2018, received at the Court on 1 March 2018, the Rechtbank Noord-Nederland (District Court, Noord-Nederland) decided to stay the proceedings and to refer the following questions to the court for a preliminary ruling: ‘1. Must Article 8(2) of Regulation No 261/2004 be interpreted as meaning that a passenger who, under Directive 90/[314]/EEC on package travel (as implemented in national law), has the right to hold his tour organiser liable for reimbursement of the cost of his ticket, can no longer claim reimbursement from the air carrier? 2. If the answer to Question 1 is in the affirmative, can a passenger nevertheless hold the air carrier liable for reimbursement of the cost of his ticket if it is to be assumed that his tour organiser, if it were to be held liable, would be financially incapable of actually reimbursing the cost of the ticket and that tour organiser has also not taken any safeguard measures to guarantee reimbursement?’

28. Written observations were lodged before the Court by HQ and Others, Aegean Airlines, the Czech and German Governments and the European Commission. The parties to the main proceedings, the German Government and the Commission presented oral argument at the hearing, which took place on 16 January 2019.

IV. Analysis

A. The subject matter of the questions referred

29. By the two questions it has referred, which in my view must be dealt with together in view of the close links between them, ( 7 ) the national court is essentially asking about the relationship between Regulation No 261/2004, which lays down a series of minimum rights for passengers, specifically in case of cancellation of a flight, ( 8 ) and Directive 90/314, which approximates the laws of the Member States applicable to consumers who have purchased a travel package. ( 9 )

30. More specifically, the national court asks the Court of Justice to interpret, for the first time, Article 8(2) of that regulation, which provides that the rule laid down in Article 8(1)(a) thereof — according to which a passenger whose flight has been cancelled must be able to obtain from the operating air carrier ( 10 ) both reimbursement of the cost of his air ticket ( 11 ) and, if necessary, a return flight to the first point of departure — ‘shall also apply to passengers whose flights form part of a package, except for the right to reimbursement [ ( 12 )] where such right arises under Directive 90/314 …’ (emphasis added).

31. The Court is asked to determine, primarily, whether that provision means that a passenger who has booked a flight forming part of a cancelled package tour and who therefore has the right to require the organiser of his package tour ( 13 ) to reimburse him in full under Directive 90/314, ( 14 ) as implemented in national law, ( 15 ) cannot therefore claim reimbursement of the cost of his air ticket from the air carrier on the basis of Regulation No 261/2004.

32. If that interpretation is adopted, the Court will also have to clarify, in response to the second question referred, the extent to which this would not apply in circumstances such as those of the dispute in the main proceedings, namely in the specific situation where the relevant organiser is, in practice, financially incapable ( 16 ) of reimbursing the cost of the ticket ( 17 ) and has not taken any measures to guarantee such reimbursement.

33. In the light of the observations submitted in the present case, there are two opposing arguments on that point. According to the first, supported by HQ and Others and the Commission, a passenger who has purchased a flight forming part of a cancelled package tour is entitled to claim reimbursement of the cost of his air ticket from the operating air carrier, under Regulation No 261/2004, where he has not actually been able to hold the organiser of his package tour liable for reimbursement, on the basis of the national law transposing Directive 90/314.

34. Conversely, according to the second argument, put forward by Aegean Airlines and by the Czech and German Governments, such a passenger does not enjoy that right since he has, in respect of the organiser of his package tour, a right to reimbursement resulting from Directive 90/314, including where the exercise of that right has no practical effect because of the organiser’s lack of financial resources. I agree with that second position, for the reasons given below.

B. The proposed interpretation of Article 8(2) of Regulation No 261/2004

35. The interpretation of Article 8(2) of Regulation No 261/2004 that I propose be adopted, which would result in an affirmative answer to the first question raised and a negative answer to the second question raised, is in my view consistent with all the assessment criteria which are usually applied by the Court ( 18 ) and which will be applied below.

1. The wording of the relevant provisions

36. In my view, it is clear from the wording of Article 8(2) of Regulation No 261/2004 that the mere existence of a ‘right to reimbursement [which] arises under Directive 90/314’suffices in itself to establish that a passenger with a package travel arrangement which has been cancelled as a consequence of the cancellation of a flight ( 19 ) does not have the right to claim reimbursement of the cost of his air ticket from the operating air carrier pursuant to that regulation.

37. Indeed, in the light of various language versions of Regulation No 261/2004, in addition to the French language version, ( 20 ) it seems to me quite clear that the above-mentioned expression must be understood as meaning that it is sufficient that the person concerned has the right in question under Directive 90/314, as transposed into the legal order of the Member States, and that it is not decisive whether the exercise of that right actually results in the desired reimbursement being obtained. ( 21 ) I consider that if the EU legislature had intended to give another meaning to Article 8(2) of Regulation No 261/2004, it would no doubt have been more explicit, by specifying that Regulation No 261/2004 must take effect if the right to reimbursement resulting from Directive 90/314 has no practical effect. However, far from requiring that such reimbursement cannot be obtained under that directive, the EU legislature has, by contrast, merely referred to the existence of a possible right to reimbursement arising from that directive, if all the conditions set out therein are fulfilled.

38. Moreover, there is no indication in the wording of Article 8(2) of Regulation No 261/2004, or indeed in the wording of other provisions thereof, ( 22 ) that its authors wished to exempt circumstances such as those described in the second question referred, ( 23 ) with the result that reimbursement of the cost of the ticket could be demanded from the air carrier in the event that the organiser of the package travel is financially incapable of making the reimbursement under Directive 90/314 and has not taken any safeguard measures. ( 24 ) If it is not to provide an overly broad or even contra legem interpretation, the Court cannot introduce into a provision of EU law legal criteria which have not been laid down or even envisaged ( 25 ) by the EU legislature.

39. As Aegean Airlines and the German Government stated in their oral arguments, although the Court has already opted to interpret other provisions of Regulation No 261/2004 more broadly than their literal meaning would have suggested a priori, ( 26 ) the broad interpretation proposed by HQ and Others and the Commission in the present case is nevertheless contrary to the wording of Article 8(2) of that regulation, which is not, in my view, lacking in clarity. Moreover, nor does such an interpretation have the potentially laudable effect of filling a possible gap in that regulation, read in conjunction with Directive 90/314, in the light of the following considerations.

2. The origin of the relevant provisions

40. The interpretation which I recommend that the Court adopt is, in my view, supported by lessons drawn from the origin of Regulation No 261/2004.

41. First of all, I would recall that Regulation No 261/2004 replaced Regulation (EEC) No 295/91, ( 27 ) relating solely to denied boarding, which already contained provisions developing the relationship with Directive 90/314 (adopted shortly before the latter regulation), according to which provisions, in the event of boarding being denied, it was for the organiser of the package travel to compensate its customers for non-performance of their contract, under that directive, but it was the responsibility of the air carrier to pay any compensation to that organiser. ( 28 )

42. Next, I would point out that the course taken by the travaux préparatoires for Regulation No 261/2004 is, in my view, indicative of the legislature’s intention as regards the wording of Article 8(2) of that measure.

43. As Aegean Airlines points out, the first proposal for a regulation presented by the Commission sought to provide for the application in full of the proposed regulation to passengers whose flight forms part of a package tour. ( 29 ) The European Parliament opposed the inclusion of those passengers within the scope of the future regulation, on the ground that they already enjoyed adequate protection under Directive 90/314, which holds tour operators responsible for the proper performance of the package, ( 30 ) including the air transport. ( 31 ) In its amended proposal, the Commission maintained its original position, however, arguing that the protection afforded by that directive was not equivalent, in that it did not grant ‘automatic’ rights to passengers. ( 32 ) The Council of the European Union opted for an intermediate solution between those proposed by the Commission and by the Parliament, ( 33 ) which agreed to endorse that compromise, taking the view that that compromise made it possible to achieve the objectives pursued by their respective proposals. ( 34 )

44. I consider that it is clear that the authors of the final version of Regulation No 261/2004 intended not to exclude entirely from the scope of the regulation passengers on package tours, but while maintaining the effects of the adequate protection scheme previously established by Directive 90/314 in relation to those passengers. In that regard, I concur with Aegean Airlines that the objections raised in the Commission’s amended proposal ( 35 ) were unfounded. Indeed, that directive, like Regulation No 261/2004, establishes rights which must be applied in a way that does not require action before the courts to claim compliance with those rights, except where the person responsible for payment is recalcitrant in complying with them.

45. In particular, as regards the cancellation of a package tour due to the cancellation of a flight and any resulting right to reimbursement of the cost of the air ticket, the final text is, in my view, consistent with that proposed by the Parliament, since the legislature considered that the interests of passengers who had purchased such a package were adequately safeguarded by Directive 90/314, given that the protective mechanisms provided for therein were deemed to function properly in the Member States. ( 36 ) In my view, it therefore follows from Article 8(2) of that regulation that Article 8(1)(a) thereof is applicable to such passengers in so far as it enables them to obtain, first, a return flight to the first point of departure, if necessary, and, secondly, reimbursement of the cost of their air ticket, provided, however, that the right to reimbursement does not already arise from Directive 90/314, and thus only in cases where the conditions laid down by that directive for entitlement to that right have not been fulfilled.

46. Moreover, I consider that the approach proposed here is not contrary to the principle of equal treatment, ( 37 ) to which the Court has indeed referred in decisions relating to the interpretation of other provisions of Regulation No 261/2004, ( 38 ) having regard to the choices legitimately made by the EU legislature as regards the relationship between that regulation and Directive 90/314. The EU legislature decided that persons who have purchased a package tour should in principle fall within the scope of that regulation, but nevertheless be the subject of specific arrangements. ( 39 ) Furthermore, the requirements for application of the principle of equality are, in my view, not fulfilled in this case, since passengers who have purchased a flight forming part of a package tour are not objectively in a situation comparable to that of passengers who purchased the same flight but not within such a package, which, by definition, combines the provision of a number of services.

47. Finally, I note that, in the course of those travaux préparatoires, there was no proposal to establish in the regulation under consideration an exemption in the situations, mentioned in the second question referred, where the tour operator is financially incapable of reimbursing its customer and has not taken any safeguard measures for that purpose.

3. The context of the relevant provisions

48. The specific context in which Article 8(2) of Regulation No 261/2004 arises, both within that regulation and in the light of the rules framing that measure, supports the interpretation which I propose.

49. In the first place, the Commission argues that Article 8(2) of Regulation No 261/2004 derogates from the principle that the air carrier is obliged to compensate passengers and to provide them with assistance under the conditions laid down in Regulation No 261/2004, so that it must be interpreted strictly, as the Court has ruled in relation to other provisions of that regulation. ( 40 )

50. However, it must be noted that the EU legislature itself formulated that provision in such a way that its scope is already narrowly circumscribed, since the exception set out therein is reduced to the right to reimbursement provided for in the first indent of Article 8(1)(a) thereof. ( 41 ) Moreover, Article 8(2) thereof has a very specific purpose, which in my view distinguishes it from other provisions of Regulation No 261/2004 already interpreted by the Court, since it seeks to ensure an appropriate relationship between that regulation and Directive 90/314 and, more specifically, to allocate the burden of reimbursement either to the air carrier or to the tour operator depending on the circumstances. Finally, strict interpretation of a provision cannot entail reading into it conditions to which no reference is made.

51. Accordingly, it cannot, in my view, be directly inferred from the fact that Article 8(2) of Regulation No 261/2004 is in the nature of a derogation that the air carrier should compensate a passenger who has purchased a package tour in the event that the operator of that package tour failed to compensate him under Directive 90/314. On the contrary, if the legislature had intended to impose such a guarantee obligation on the air carrier, in addition to the obligations already imposed on the tour operator by that directive, the legislature would certainly have expressly so provided in that regulation.

52. That view is supported, in my opinion, by the wording of the other provision of Regulation No 261/2004 which relates to the interplay between that regulation and Directive 90/314, namely Article 3(6) of the regulation. ( 42 ) Article 3(6) of Regulation No 261/2004 states, first, that that regulation does not affect the rights which passengers who have purchased package travel derive from that directive and, secondly, that the regulation must not be applied in cases where the package tour in question has been cancelled for reasons other than cancellation of the flight concerned. ( 43 ) It seems to me that the EU legislature intended to confer a certain priority on Directive 90/314, even though Regulation No 261/2004 is applicable at the same time with regard to such passengers, within the limits thus defined.

53. In the second place, having regard to its particular purpose, referred to above, Article 8(2) of Regulation No 261/2004 must, in my view, be interpreted, from a contextual point of view, not only by examining the other provisions of that regulation, but also by taking into account the wording of the other measure referred to in that provision, in other words, by taking due account of the content of Directive 90/314.

54. However, Article 4(6)(b) of that directive establishes its own scheme, under which, where the organiser of a travel package cancels the package before the agreed date of departure, for whatever cause, the consumer who purchased the package concerned is entitled ‘to be repaid as soon as possible all sums paid by him under the contract’ concluded with that trader. ( 44 ) That reimbursement includes, inter alia, the price of the air tickets.

55. Moreover and above all, Directive 90/314 already contains, in Article 7 thereof, special requirements to ensure that the reimbursement provided for by that directive is ensured even where the tour operator is insolvent. ( 45 ) In the event of the tour operator’s failure to fulfil its obligations under Article 7, there is no justification for de facto placing the burden of responsibility for the guarantees thus provided on the air carrier, by requiring the carrier to reimburse to the customers of the operator concerned the cost of their air tickets. I would point out that, if properly implemented in the Member States, the guarantee scheme thus established provides particular protection for travellers. ( 46 ) Those provisions are mandatory, even though they are not coupled with penalties, and in my view they must be complied with by a tour operator under the supervision of the competent national authorities. ( 47 ) If it is established that the authorities of a Member State have not taken all the measures required by that directive to ensure that the right to reimbursement is indeed effective, ( 48 ) it is conceivable that that State may incur liability. ( 49 )

56. Thus, in the light of Directive 90/314, it seems to me that the question of the possible insolvency of the tour operator falls solely within the scope of that directive, and not within the scope of Regulation No 261/2004, which is also expressly confirmed by the new directive on package travel. ( 50 ) The circumstances set out in the second question referred therefore cannot justify, in the specific situation mentioned by the national court, the imposition on the air carrier of the obligation to reimburse to a passenger the cost of his air ticket, where he has purchased a package tour and did not obtain reimbursement from the organiser of that package.

4. The objectives of the relevant provisions

57. Notwithstanding the complaints raised in that connection by HQ and Others and by the Commission, I consider that the interpretation proposed herein does not conflict with the aims pursued by the relevant provisions, having regard both to the general objectives of Regulation No 261/2004 and to the specific objectives of Article 8(2) thereof.

58. It is true that, as stated in the preamble thereto, ( 51 ) the overall purpose of that regulation is to guarantee to the passengers to whom it applies a high level of protection, with a view to remedying the serious inconvenience to which those persons are exposed, in particular, following the cancellation of a flight. The Court has on several occasions taken that purpose into account, in particular to justify a broad interpretation of the rights granted to those passengers. ( 52 )

59. However, as the Court has already held, Regulation No 261/2004 also serves another purpose, to which due account must also be given, namely the purpose of ensuring a balance between the interests of the protected passengers and the interests of air carriers. ( 53 ) Even though the EU legislature has chosen to give the operating air carrier a central role in providing the compensation and assistance to which passengers are entitled, in particular in case of cancellation of a flight, ( 54 ) this nonetheless does not mean that that carrier alone must bear the financial burden in all cases.

60. In particular, as regards the cancellation of a flight forming part of a package tour, I consider that the liability connected with that cancellation and the related costs must be shared between the tour operator and the air carrier according to their respective obligations, as those obligations arise not only from the applicable provisions of Directive 90/314 or Regulation No 261/2004, but also from the commitments entered into under the contracts concluded, first, between the tour operator and its customer and, secondly, between that tour operator and the air carrier. ( 55 )

61. In any event, there is in my view no legal basis, or even an objective reason, for making the guarantee against the risk of that tour operator’s insolvency the responsibility, in practice, of the air carrier, by requiring that carrier to reimburse a passenger on a package tour in such a scenario, in particular since, as I have already pointed out, Directive 90/314 contains provisions which, if they are complied with, specifically allow such problems to be remedied. ( 56 )

62. Moreover, consideration of the objective of protecting passengers generally pursued by Regulation No 261/2004 cannot lead the Court to opt for an interpretation of Article 8(2) thereof which is not consistent with the wording and specific aim of that provision.

63. In that regard, I consider that the particular purpose of Article 8(2) of Regulation No 261/2004 is to establish an appropriate relationship between that regulation and Directive 90/314, intended to preserve the scope of each of those protective measures, while preventing the consumers concerned from enjoying rights which, on account of a possible overlapping of rules, could be excessive in nature.

64. The concern of preventing an aggrieved passenger from being overprotected by the cumulative application of the rights conferred by the regulation and the directive is also shown by a communication from the Commission, which refers in particular to the appropriate way of combining that regulation with the new directive on package travel, ( 57 ) noting that the latter expressly excludes ‘overcompensation’ in the event of compensation of a traveller. ( 58 )

65. Similarly, I consider that it should never be possible for a passenger to be reimbursed twice for the cost of his air ticket, in the event of cancellation of his package tour, by having the possibility of choosing to rely on Directive 90/314 and/or Regulation No 261/2004. Therefore, if the person concerned satisfies the conditions for the exercise of the right to reimbursement under the directive, he cannot, in my view, also claim under the regulation, even if the exercise of that right has no practical effect, as in this case, on account of the failings of the sole person responsible for payment, namely the tour operator, since it is always possible for such economic eventualities to arise ( 59 ) and Article 7 of the directive is already intended to prevent a consumer from not being reimbursed in the situations covered.

66. Finally, for the sake of completeness, I note that the interpretation proposed here is consistent with practical considerations, which cannot be entirely disregarded. As argued by Aegean Airlines and the German Government, if the Court were to hold that the operating air carrier must reimburse to a passenger the cost of an air ticket which he purchased from a third party as part of a package tour, it would generally be very difficult, if not impossible, to know how much that carrier should pay him. Indeed, since the price of the flight is included in a fare which, by its nature, includes the price of several services, the elements of which are, as a general rule, known only to the tour operator, neither the carrier ( 60 ) nor even the purchaser knows what portion of that fare corresponds to the flight in question. In other words, it seems unrealistic to me to conclude that the carrier would always be able to quantify the exact amount of the reimbursement ( 61 ) due to that traveller in such circumstances.

67. In the light of all those considerations, Article 8(2) of Regulation No 261/2004 must, in my view, be interpreted as meaning that a passenger who has, under Directive 90/314, as implemented in national law, the right to hold the organiser of his package tour liable, in the event of its cancellation, for repayment of all the sums which he has paid to it under their contract is not entitled to claim reimbursement of the cost of his air ticket from the operating air carrier, on the basis of that regulation, including where the organiser of his package tour is financially incapable of reimbursing the cost of the ticket and has not taken the safeguard measures necessary to ensure such reimbursement.

V. Conclusion

68. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Rechtbank Noord-Nederland (District Court, Noord-Nederland, Netherlands) as follows: Article 8(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 must be interpreted as meaning that a passenger who has, under Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, as implemented in national law, the right to hold the organiser of his package tour liable, in the event of its cancellation, for repayment of all the sums which he has paid to it under their contract is not entitled to claim reimbursement of the cost of his air ticket from the operating air carrier, on the basis of that regulation, including where the organiser of his package tour is financially incapable of reimbursing the cost of the ticket and has not taken the safeguard measures necessary to ensure such reimbursement.

( 1 ) Original language: French.

( 2 ) Regulation 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).

( 3 ) Council Directive of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).

( 4 ) Directive 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 (OJ 2015 L 326, p. 1).

( 5 ) In that regard, that court held, on the one hand, that the initiative to cancel the flight was taken by Aegean Airlines, which was clearly prepared to operate the flight only if Hellas paid to it in advance the fixed fare for the flight, and, on the other hand, that it was neither pleaded nor demonstrated that Hellas had announced the cancellation of the package tour for reasons other than that decision by Aegean Airlines. I would point out that, since that is a factual assessment, I shall start from the premiss accepted by the national court that Regulation No 261/2004 is indeed applicable to the dispute in the main proceedings.

( 6 ) I would point out that, under a combined application of Article 5(1)(c) and Article 7(1)(b) of Regulation No 261/2004, in case of cancellation of a flight, the passengers concerned, unless they have been informed of the cancellation under the conditions laid down in Article 5(1)(c), must receive from the operating air carrier an amount of flat-rate compensation amounting to EUR 400 for all intra-Community flights of more than 1500 kilometres.

( 7 ) The Czech Government and the Commission in their written observations, as well as Aegean Airlines in its oral arguments, also proposed to respond to those questions jointly.

( 8 ) I would point out that those questions concern only applications for reimbursement of the cost of air tickets, since, in the dispute in the main proceedings, the national court has already upheld the applications for flat-rate compensation based on Article 5(1)(c) and Article 7(1)(b) of Regulation No 261/2004, provisions which the court seised held were indeed applicable in the present case (see points 22 to 25 of this Opinion).

( 9 ) Respective subject matters which follow, in particular, from Article 1 of each of those two measures.

( 10 ) Concept of ‘operating air carrier’ as defined in Article 2(b) of that regulation. See also judgment of 4 July 2018, Wirth and Others (C‑532/17, EU:C:2018:527, paragraph 17 et seq.).

( 11 ) Reimbursement to be carried out under the conditions laid down in Article 8(1)(a) and Article 7(3) of that regulation.

( 12 ) In the light of that wording, it seems clear to me that, in contrast to the ‘right to reimbursement’ of the ticket (the only matter at issue in the present case), the right to ‘a return flight to the first point of departure’, which is provided for, as a supplement, in the second indent of Article 8(1)(a) of Regulation No 261/2004, is not affected by the exception set out at the end of Article 8(2) thereof. The same applies to the rights of ‘re-routing … to [the] final destination’ which are referred to, as an alternative, in Article 8(1)(b) and (c) thereof.

( 13 ) Concepts of ‘package’ and ‘organiser’ as defined in Article 2(1) and (2) of Directive 90/314, referred to in Article 2(d) and (e) of Regulation No 261/2004.

( 14 ) Under Article 4(6)(b) of that directive.

( 15 ) Directive 90/314 was transposed into Netherlands law by Title 7A, entitled ‘Travel contract’, of Book 7 of the Burgerlijk Wetboek (Civil Code). Article 7:504(3) of that code allows a passenger, in the event of termination of the travel contract by the tour operator, to request from that operator, inter alia, reimbursement of the cost of the air tickets.

( 16 ) In particular, in the present case, on account of the insolvency of that organiser.

( 17 ) Even if that organiser were ‘held liable’, according to the premiss accepted by the national court in its second question.

( 18 ) It follows from settled case-law that a provision of EU law must be given throughout the European Union an autonomous and uniform interpretation which takes into consideration the wording of that provision, its context, the objectives of the legislation of which it forms part and the origin of that legislation (see, inter alia, judgments of 15 November 2018, Verbraucherzentrale Baden-Württemberg, C‑330/17, EU:C:2018:916, paragraph 23, and of 17 January 2019, Brisch, C‑102/18, EU:C:2019:34, paragraph 22).

( 19 ) Bearing in mind that, as stated both in recital 16 and in Article 3(6) of Regulation No 261/2004, that regulation is in no way applicable where the package tour concerned was cancelled ‘for reasons other than the flight being cancelled’.

( 20 ) In particular, the versions in Spanish (‘cuando ese derecho se derive de la Directiva 90/314’), Danish (‘medmindre retten til refusion følger af direktiv 90/314’), German (‘sofern dieser [Anspruch auf Erstattung] sich aus der Richtlinie 90/314 ergibt’), English (‘where such right arises under Directive 90/314’), Italian (‘ad esclusione del diritto al rimborso qualora tale diritto sussista a norma della direttiva 90/314’), Dutch (‘indien dit recht bestaat krachtens Richtlijn 90/314’), Portuguese (‘salvo quanto ao direito a reembolso quando este se constitua ao abrigo da Directiva 90/314’) and Swedish (‘om denna rättighet regleras i direktiv 90/314’).

( 21 ) Aegean Airlines and the German Government also take the view that the wording of Article 8(2) of that regulation leaves little room for any other interpretation. According to the Commission, ‘a literal interpretation of the wording of [that] paragraph 2 suggests that the mere existence of the right to reimbursement of the cost of the ticket under Directive 90/314 is sufficient to eliminate the right to reimbursement of the cost of the ticket under Regulation [No] 261/2004’, though a teleological approach should nonetheless lead to the opposite conclusion.

( 22 ) Given that no provision in that regulation refers to the possible insolvency of the operators the passenger must deal with, namely the air carrier and the tour operator. With regard to the context of Article 8(2) of Regulation No 261/2004, see point 48 et seq. of this Opinion.

( 23 ) HQ and Others and the Commission respectively argue, wrongly in my view, that the passenger should not remain ‘empty handed’, when, in the present case, he (admittedly) cannot be criticised and that, ‘in exceptional circumstances such as those in the present case, there can be no question of the passenger’s ultimately receiving nothing’.

( 24 ) I note that the authors of Directive 90/314 have, by contrast, expressly provided for situations in which the organiser is insolvent (in that connection, see point 55 of this Opinion).

( 25 ) In that connection, see point 47 of this Opinion.

( 26 ) In particular in the judgment of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraphs 40 to 69), the content of which has been disputed by certain commentators. In relation to that judgment and the case-law which followed it, see, inter alia, Cachard, O., Le transport international aérien des passagers, Académie de droit international de La Haye, Adi-Poche, The Hague, 2015, p. 283 et seq., and Malenovský, J., ‘Regulation 261: Three Major Issues in the Case Law of the Court of Justice of the EU’, Air Passenger Rights — Ten Years On, Bobek, M., & Prassl, J. (eds.), Hart Publishing, Oxford, 2016, p. 27 et seq.

( 27 ) Council Regulation of 4 February 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport (OJ 1991 L 36, p. 5).

( 28 ) Article 5(1) of Regulation No 295/91 provided: ‘in the event of boarding being denied on a flight sold as part of a package tour, the air carrier shall be obliged to compensate the tour operator [organising the travel package] who has concluded a contract with the passenger and who is liable to him for the proper performance of the contract for the said package tour under … Directive 90/314 …’, and Article 5(2) thereof provided: ‘without prejudice to the rights and obligations arising under [that directive], the tour operator shall be obliged to pass on to the passenger the sums collected under paragraph 1’.

( 29 ) See Proposal of 21 December 2001, COM(2001) 784 final, paragraph 19 of the explanatory memorandum, recitals 10 and 11 (according to which ‘since tour operators are generally responsible for commercial decisions concerning package travel, … they should be responsible for compensation … to passengers taking flights contained in package travel, … in the event of … cancellation …’) and Article 3(1).

( 30 ) I would point out that, under Article 5(1) of Directive 90/314, organisers may, however, pursue before the courts other suppliers of services responsible for the performance of the contract. See, also, recital 36 in fine and Article 22 of Directive 2015/2302.

( 31 ) See, specifically, amendments 2, 3 and 15 and the justifications for them set out in the report of 12 September 2002 on the above-mentioned proposal (A5-0298/2002), adopted by the Parliament on 24 October 2002 (position adopted at first reading, OJ 2003 C 300 E, p. 557).

( 32 ) Proposal of 4 December 2002, COM(2002) 717 final, explanatory memorandum, paragraph 2, according to which ‘the proposed regulation would give passengers precise, automatic rights, which they would enjoy immediately and without going to court. There is no justification for protecting passengers facing the same problems to different degrees’.

( 33 ) See Common Position adopted on 18 March 2003 and statement of reasons (OJ 2003 C 125 E, p. 63).

( 34 ) See Communication from the Commission of 25 March 2003, SEC(2003) 361 final, pp. 3, 6 and 7, and Position of the Parliament adopted at second reading of 3 July 2003 (OJ 2004 C 74 E, p. 807), which does not contain the exclusion of passengers on package tours that had again been recommended by its rapporteur on 13 June 2003 (report A5-0221/2003, amendments 1 and 9).

( 35 ) See footnote 32 of this Opinion.

( 36 ) Concerning the right to reimbursement of the cost of a package tour and the related guarantee scheme introduced by that directive, see point 54 et seq. of this Opinion.

( 37 ) Principle — referred to implicitly in the aforementioned amended proposal from the Commission (footnote 32) and expressly by HQ and Others before both the national court and the Court — that comparable situations must not be treated differently and different situations must not be treated in the same way, unless such difference in treatment is objectively justified.

( 38 ) See judgments of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 58 et seq.); of 23 October 2012, Nelson and Others (C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 33 et seq.); and of 7 September 2017, Bossen and Others, (C‑559/16, EU:C:2017:644, paragraph 19 et seq.), as well as order of 5 October 2016, Wunderlich (C‑32/16, EU:C:2016:753, paragraph 21 et seq.).

( 39 ) In that connection, see point 52 of this Opinion.

( 40 ) See judgment of 22 December 2008, Wallentin-Hermann (C‑549/07, EU:C:2008:771, paragraph 20), cited by the Commission, as well as order of 14 November 2014, Siewert (C‑394/14, EU:C:2014:2377, paragraph 17), and judgment of 17 September 2015, van der Lans (C‑257/14, EU:C:2015:618, paragraphs 35 and 45), all of which concern the interpretation of Article 5(3) of Regulation No 261/2004.

( 41 ) See, also, footnote 12 of this Opinion.

( 42 ) I note that HQ and Others also rely on Article 13 of Regulation No 261/2004, which provides that, where an air carrier pays compensation (such as flat-rate compensation due on the basis of Article 7 thereof) or meets the other obligations incumbent on it under that regulation, it may then seek compensation, in particular, from the tour operator with whom it has concluded a contract. However, I consider that that provision does not affect the relationship between that regulation and Directive 90/314.

( 43 ) I would recall that that second rule is also referred to in recital 16 of that regulation.

( 44 ) Unless the cancellation is attributable to a fault of the consumer.

( 45 ) The 21st recital and Article 7 of that directive state that the tour organiser must provide sufficient evidence of security for the refund of money paid in the event of insolvency. Similarly, Article 7:512(1) of the Netherlands Civil Code lays down an obligation for each tour operator to take the necessary measures in advance to ensure that, if it can no longer meet its obligations towards a traveller due to insolvency, its obligations are assumed by a third party or the fare is reimbursed.

( 46 ) Since that scheme has no equivalent in other areas of consumer law.

( 47 ) I would point out that the situation facing the consumers in the present case is the result not of a gap in the scheme established by Directive 90/314, which should be remedied through Regulation No 261/2004, but of the fact that the tour operator has failed to fulfil its statutory obligations, which Member States must ensure are complied with.

( 48 ) It being recalled that the Court has interpreted Article 7 of Directive 90/314 as precluding national legislation the detailed rules of which do not achieve the result of providing the consumer with an effective guarantee of the refund of all money paid over, in the event of the travel organiser’s insolvency (see, inter alia, judgment of 15 June 1999, Rechberger and Others, C‑140/97, EU:C:1999:306, paragraphs 64 to 66 and 74 to 77, and order of 16 January 2014, Baradics and Others, C‑430/13, EU:C:2014:32, paragraphs 32 to 38).

( 49 ) With regard to the actions against a Member State which may be brought by individuals, see, inter alia, judgments of 14 March 2013, Leth (C‑420/11, EU:C:2013:166, paragraph 41 et seq.); of 3 September 2014, X (C‑318/13, EU:C:2014:2133, paragraph 42 et seq.); and of 4 October 2018, Kantarev (C‑571/16, EU:C:2018:807, paragraph 92 et seq.).

( 50 ) See recitals 1 and 38 to 44 as well as Articles 17 to 18 of Directive 2015/2302, the content of which provides some interesting insights, even though that directive is not applicable in the present case.

( 51 ) See recitals 1 to 6 of Regulation No 261/2004.

( 52 ) See, inter alia, judgments of 4 October 2012, Finnair (C‑22/11, EU:C:2012:604, paragraphs 23 and 34); of 4 October 2012, Rodríguez Cachafeiro and Martínez-Reboredo Varela-Villamor (C‑321/11, EU:C:2012:609, paragraphs 25 and 33); of 23 October 2012, Nelson and Others (C‑581/10 and C‑629/10, EU:C:2012:657, paragraphs 37 and 38 and 74 et seq.); of 31 January 2013, McDonagh (C‑12/11, EU:C:2013:43, paragraph 47 et seq.); and of 22 June 2016, Mennens (C‑255/15, EU:C:2016:472, paragraph 26 et seq.).

( 53 ) See, inter alia, judgments of 19 November 2009, Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 67); of 23 October 2012, Nelson and Others (C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 39); and of 12 September 2018, Harms (C‑601/17, EU:C:2018:702, paragraph 15).

( 54 ) In accordance with Articles 5 and 8 of Regulation No 261/2004. In its aforementioned communication (footnote 34), p. 3, the Commission noted that ‘this is practical, as the operating carrier is usually best placed for ensuring flights go according to plan and has personnel or agents at airports to help passengers. It is also straightforward and simple, so easily understood by passengers’.

( 55 ) See, by analogy, judgment of 11 May 2017, Krijgsman (C‑302/16, EU:C:2017:359, paragraph 25 et seq.), in which it was held that the operating air carrier must compensate a passenger who bought a flight via a travel agent, even though the carrier informed that travel agent in good time of a schedule change for that flight and the travel agent informed the passenger without delay, but in which it was also recalled that, pursuant to Article 13 of Regulation No 261/2004, the carrier may seek compensation from any person with whom it has concluded a contract.

( 56 ) See point 55 of this Opinion. At the hearing, Aegean Airlines rightly pointed out that the interpretation proposed by HQ and Others and the Commission could even be contrary to the interests of consumers, since the tour operators would no longer be encouraged to provide the guarantees required by Directive 90/314, if they knew that air carriers would be required to make up for their deficiency on the basis of Regulation No 261/2004.

( 57 ) See Interpretative Guidelines on Regulation No 261/2004 (OJ 2016 C 214, p. 5), section 2.2.6, entitled ‘Scope of the Regulation in relation to the Package Travel Directive’. That non-binding document is also referred to by the national court, which rightly observes that section 4.2 thereof deals with the right to reimbursement in the event of cancellation, but without referring to the content of Article 8(2) of that regulation.

( 58 ) Recital 36 and Article 14(5) of Directive 2015/2302 state that the compensation granted under that directive, in the event of improper performance of the travel services, and that granted under other cited EU legal measures, including Regulation No 261/2004, must ‘be deducted from each other in order to avoid overcompensation’. Although that directive, which replaced Directive 90/314, is not applicable in the present case (see point 8 of this Opinion), I consider that the clarification thus provided by the EU legislature is nonetheless not without interest in the present case.

( 59 ) Unfortunately, it is not uncommon for a consumer to be faced with the insolvency of a trader with whom he has concluded a contract, and to be unable ever to obtain redress or compensation for non-performance of that contract.

( 60 ) It cannot be presumed, in my view, that the price to be reimbursed to such passengers would be identical to the price agreed between the tour operator and the carrier for the purchase of the airline seats, since that operator was able to opt for a different fare when selling tickets to its customers.

( 61 ) I would recall that Article 8(1)(a) of Regulation No 261/2004 provides for ‘reimbursement … of the full cost of the ticket at the price at which it was bought’, and not at a price close to that price.