Case C‑532/17

Wolfgang Wirth and Others

v

Thomson Airways Ltd.

(Request for a preliminary ruling from the Landgericht Hamburg)

(Reference for a preliminary ruling — Transport — Regulation (EC) No 261/2004 — Article 2(b) — Scope — Definition of ‘operating air carrier’ — Lease of aircraft including crew ‘Wet lease’)

Summary — Judgment of the Court (Third Chamber), 4 July 2018

Transport — Air transport — Regulation No 261/2004 — Compensation and assistance to passengers — Operating air carrier — Definition — Air carrier having leased aircraft and its crew (wet lease) — Not included

(European Parliament and Council Regulation No 261/2004, Art. 2(b))

The concept of an ‘operating air carrier’ within the meaning 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 and, in particular, of Article 2(b) thereof must be interpreted as not covering the case of an air carrier, such as that at issue in the main proceedings, which leases to another air carrier an aircraft, including crew, under a wet lease, but does not bear the operational responsibility for the flights, even where the booking confirmation of a seat on a flight issued to passengers states that that flight is operated by the former air carrier.

In that regard, it should be made clear that, according to Article 2(b) of Regulation No 261/2004, the concept of an ‘operating air carrier’ must be understood as referring to 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’. That definition thus sets out two cumulative conditions which must be satisfied if an air carrier is to be regarded as an ‘operating air carrier’ relating, first, to the operation of the flight in question and, second, to there being a contract concluded with a passenger. The first condition relates to the concept of a ‘flight’, which is the predominant element of the two conditions. The Court has previously held that that concept must be understood as ‘an air transport operation, being as it were a “unit” of such transport, performed by an air carrier which fixes its itinerary’ (judgments of 10 July 2008, Emirates Airlines, C‑173/07, EU:C:2008:400, paragraph 40, of 13 October 2011, Sousa Rodríguez and Others, C‑83/10, EU:C:2011:652, paragraph 27, and of 22 June 2016, Mennens, C‑255/15, EU:C:2016:472, paragraph 20).

It follows that an air carrier which, in the course of its air passenger carriage activities, decides to perform a particular flight, including fixing its itinerary, and, by so doing, offers to conclude a contract of air carriage with members of the public must be regarded as the operating air carrier. The adoption of such a decision means that that air carrier bears the responsibility for performing the flight in question, including, inter alia, any cancellation or significantly delayed time of arrival. In the present case, it is common ground that Thomson Airways merely leased the aircraft and the crew which performed the flight at issue in the main proceedings, but that the fixing of the itinerary and the performance of the flight were determined by TUIFly. In those circumstances, without it being necessary to examine the second cumulative condition provided by Article 2(b) of Regulation No261/2004, it must be held that an air carrier, such as Thomson Airways in the main proceedings, which leases an aircraft and its crew to another air carrier, cannot, in any event, be regarded as an ‘operating air carrier’ within the meaning of Regulation No 261/2004 and, in particular, of Article 2(b) thereof.

(see paras 17-22, 26, operative part)