CELEX: 62019CO0654
Language: en
Date: 2020-10-01 00:00:00
Title: Order of the Court (Eighth Chamber) of 1 October 2020.#FP Passenger Service v Austrian Airlines AG.#Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Air transport – Regulation (EC) No 261/2004 – Compensation of air passengers in the event of long delay of flights – Right to compensation in the event of delay – Length of delay – Time of opening of the aircraft’s doors at destination – Actual arrival time – Scheduled time of arrival – Question on which the Court has already ruled or where the answer to such a question may be clearly deduced from the case-law.#Case C-654/19.

ORDER OF THE COURT (Eighth Chamber)
   1 October 2020 (
         *1
      )
   (Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Air transport – Regulation (EC) No 261/2004 – Compensation of air passengers in the event of long delay of flights – Right to compensation in the event of delay – Length of delay – Time of opening of the aircraft’s doors at destination – Actual arrival time – Scheduled time of arrival – Question on which the Court has already ruled or where the answer to such a question may be clearly deduced from the case-law)
   In Case C‑654/19,
   REQUEST for a preliminary ruling under Article 267 TFEU from the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), made by decision of 2 July 2019, received at the Court on 3 September 2019, in the proceedings
   
      FP Passenger Service GmbH
   
   v
   
      Austrian Airlines AG,
   
   THE COURT (Eighth Chamber),
   composed of L.S. Rossi, President of the Chamber, J. Malenovský (Rapporteur) and F. Biltgen, Judges,
   Advocate General: P. Pikamäe,
   Registrar: A. Calot Escobar,
   having regard to the written procedure,
   after considering the observations submitted on behalf of:
   
            –
         
         
            FP Passenger Service GmbH, by F. Puschkarski, Rechtsanwältin, and B. Passin, Rechtsanwalt,
         
      
            –
         
         
            Austrian Airlines AG, by G. Gries, Rechtsanwalt,
         
      
            –
         
         
            the Austrian Government, by J. Schmoll and G. Kunnert, acting as Agents,
         
      
            –
         
         
            the German Government, by J. Möller and M. Hellmann, acting as Agents,
         
      
            –
         
         
            the Polish Government, by B. Majczyna, acting as Agent,
         
      
            –
         
         
            the European Commission, by W. Mölls and N. Yerrell, acting as Agents,
         
      having decided, after hearing the Advocate General, to give a decision 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 Articles 5 to 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 the context of proceedings between FP Passenger Service GmbH and Austrian Airlines AG concerning the compensation of a passenger of the latter for the delay of the arrival of the aircraft on which he was travelling at Vienna-Schwechat airport, Austria.
         
      
      Legal context
   
   
            3
         
         
            Recital 1 of Regulation No 261/2004 states:
            ‘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.’
         
      
            4
         
         
            Article 2 of that regulation, entitled ‘Definitions’, is worded as follows:
            ‘For the purposes of this Regulation:
            …
            
                     (f)
                  
                  
                     “ticket” means a valid document giving entitlement to transport, or something equivalent in paperless form, including electronic form, issued or authorised by the air carrier or its authorised agent;
                  
               …
            
                     (h)
                  
                  
                     “final destination” means the destination on the ticket presented at the check-in counter or, in the case of directly connecting flights, the destination of the last flight; alternative connecting flights available shall not be taken into account if the original planned arrival time is respected’.
                  
               
      
            5
         
         
            Article 5 of that 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:
                     …
                     
                              (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.
                           
                        
               …
            3.   An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
            …’
         
      
            6
         
         
            Article 6 of that regulation, entitled ‘Delay’, states:
            ‘1.   When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:
            
                     (a)
                  
                  
                     for two hours or more in the case of flights of 1500 kilometres or less; or
                  
               
                     (b)
                  
                  
                     for three hours or more in the case of all intra-Community flights of more than 1500 kilometres and of all other flights between 1500 and 3500 kilometres; or
                  
               
                     (c)
                  
                  
                     for four hours or more in the case of all flights not falling under (a) or (b),
                  
               passengers shall be offered by the operating air carrier:
            
                     (i)
                  
                  
                     the assistance specified in Article 9(1)(a) and 9(2); and
                  
               
                     (ii)
                  
                  
                     when the reasonably expected time of departure is at least the day after the time of departure previously announced, the assistance specified in Article 9(1)(b) and 9(1)(c); and
                  
               
                     (iii)
                  
                  
                     when the delay is at least five hours, the assistance specified in Article 8(1)(a).
                  
               2.   In any event, the assistance shall be offered within the time limits set out above with respect to each distance bracket.’
         
      
            7
         
         
            Article 7 of that regulation, entitled ‘Right to compensation’, provides:
            ‘1.   Where reference is made to this Article, passengers shall receive compensation amounting to:
            …
            
                     (b)
                  
                  
                     EUR 400 for all intra-Community flights of more than 1500 kilometres, and for all other flights between 1500 and 3500 kilometres;
                  
               …
            2.   When passengers are offered re-routing to their final destination on an alternative flight pursuant to Article 8, the arrival time of which does not exceed the scheduled arrival time of the flight originally booked
            
                     (a)
                  
                  
                     by two hours, in respect of all flights of 1500 kilometres or less; …
                  
               …
            the operating air carrier may reduce the compensation provided for in paragraph 1 by 50%.
            …
            4.   The distances given in paragraphs 1 and 2 shall be measured by the great circle route method.’
         
      
      The dispute in the main proceedings and the question referred for a preliminary ruling
   
   
            8
         
         
            FP Passenger Service, the applicant in the main proceedings, is subrogated into the rights of a passenger who had a reservation with Austrian Airlines for the flight under flight number OS 2344 from Hurghada (Egypt), to Vienna (Austria), with a scheduled departure on 20 August 2017 at 10.50 and a scheduled arrival on the same day at 15.20.
         
      
            9
         
         
            Not having taken off from Hurghada until 14.22, the aircraft landed at Vienna-Schwechat airport on 20 August 2017 with a delay the importance of which is liable to vary depending on the moment at which its arrival is placed. In that regard, the order for reference mentions several different times:
            
                     –
                  
                  
                     18.14: ‘touch down’ (landing); reported by an airport employee;
                  
               
                     –
                  
                  
                     18.17: Actual Time of Arrival (ATA). This is the point at which the aircraft reaches its end position; also reported by an airport employee;
                  
               
                     –
                  
                  
                     18.18: the aircraft’s parking brakes are applied, reported by the aircraft automatically;
                  
               
                     –
                  
                  
                     18.22: crew reports that the aircraft has reached its parking position.
                  
               
      
            10
         
         
            According to the referring court, it is not established that the time that elapsed before the opening of the doors of the aircraft was exceptionally long. However, the aircraft was parked at a remote position, from where the passengers were transported to the terminal building by bus. It is not possible to determine whether, had the aircraft landed at the scheduled time, it would have been directed to that parking position or elsewhere. The referring court states, in that context, that aircraft landing at Vienna-Schwechat airport park either on the runway, where passengers leave the aircraft via steps and reach the airport building by means of a shuttle, or next to a passenger bridge, where passengers can enter the airport buildings directly.
         
      
            11
         
         
            FP Passenger Service brought an action for damages before the Bezirksgericht Schwechat (District Court, Schwechat, Austria), seeking compensation in the amount of EUR 400 plus interest for the delay. In support of its claim, it submitted that, as the departure of the flight concerned had been delayed, its final destination could not actually be reached until 18.22, the time at which the delayed aircraft took up its parking position.
         
      
            12
         
         
            However, FP Passenger Service has argued that, for the purposes of assessing the delay, the time to be taken into account was that of the opening of the doors, that is to say, the time at which the passengers were able to leave the aircraft. In this case, according to the applicant, that opening took place more than three hours after the scheduled time of arrival.
         
      
            13
         
         
            Austrian Airlines, for its part, maintained that the flight in question had been delayed for less than three hours. After all, the aircraft reached its final destination not at 18.22, but at 18.17. For the purposes of applying the right to compensation under Regulation No 261/2004, both the scheduled time of arrival and the actual arrival time correspond to the time at which the aircraft has landed at the airport of destination. That time does not include the time taken to open the doors.
         
      
            14
         
         
            The court of first instance upheld Austrian Airlines’ position and dismissed FP Passenger Service’s action on the ground that, for the purposes of determining the actual delay of a flight, the scheduled time of arrival must be compared with the actual arrival time. Since that comparison resulted, in the present case, in a delay only of 2 hours and 57 minutes, that court held that FP Passenger Service was not entitled to obtain a right to compensation under Regulation No 261/2004.
         
      
            15
         
         
            The applicant in the main proceedings brought an appeal against that decision before the referring court. That court takes the view that the judgment of 4 September 2014, Germanwings (C‑452/13, EU:C:2014:2141), must be applied. Therefore, in order to calculate the extent of the delay, it is necessary to establish at what point the doors of the aircraft would have been opened had the flight not been delayed, which can then be compared with the point at which the doors were actually opened. In that regard, although flight schedules do not indicate the expected time of door opening, experience shows that the period between the time at which the aircraft reaches its parking position and the opening of the doors is usually the same for every flight. It follows that the period between the actual arrival time and the actual door opening, on the one hand, and the period between the scheduled time of arrival and the expected door opening, on the other, is the same, meaning that none of those periods should be taken into account in the calculation of the delay.
         
      
            16
         
         
            However, if, in a given case, the period between the actual arrival time and the actual door opening is exceptionally long and the passenger can provide evidence of it, the difference between the actual period and the period usually needed to open the doors should be taken into account, so as to add that difference to the delay calculated in accordance with the above considerations. In this case, however, it should be assumed that the period between the actual arrival time and the actual door opening did not exceed the usual time, meaning that that period should not be taken into account.
         
      
            17
         
         
            The referring court states that national case-law is not settled on that question.
         
      
            18
         
         
            In those circumstances, the Landesgericht Korneuburg (Regional Court, Korneuburg, Austria) decided to stay the main proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
            ‘Are Articles 5 to 7 of Regulation [No 261/2004] to be interpreted as meaning that, when calculating a delay – having regard to the judgment of 4 September 2014, Germanwings (C‑452/13, EU:C:2014:2141), according to which account is to be taken of the time of the door opening – it is necessary to establish the difference between the actual time of the door opening and the scheduled time of arrival, or the difference between the actual time of the door opening and the time at which it is expected that the door would be opened if the time of arrival was as scheduled?’
         
      
      Consideration of the question referred
   
   
            19
         
         
            By its question, the referring court asks, in essence, whether Regulation No 261/2004, read in the light of the judgment of 4 September 2014, Germanwings (C‑452/13, EU:C:2014:2141), must be interpreted as meaning that, for the purposes of determining the extent of the delay suffered by passengers on a flight on arrival, it is necessary to calculate the time between the scheduled time of arrival and the opening of the aircraft’s doors.
         
      
            20
         
         
            Under Article 99 of the Rules of Procedure of the Court of Justice, the Court may at any time, on a proposal by the Judge-Rapporteur, after hearing the Advocate General, decide to give a reasoned order where a question referred for a preliminary ruling is identical to a question on which the Court has already ruled, where the answer to such a question may be clearly deduced from the case-law or where the answer to the question referred for a preliminary ruling leaves no reasonable doubt.
         
      
            21
         
         
            Since that is the case here, it is appropriate to apply that provision.
         
      
            22
         
         
            First of all, it should be borne in mind that it does not expressly follow from the wording of Regulation No 261/2004 that passengers whose flights are delayed on arrival have a right to compensation by the operating air carrier in accordance with Article 7 of that regulation, the notion of ‘flight delay’ being textually considered by that regulation only by reference to the scheduled time of departure (see, to that effect, judgment of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraphs 31, 40 and 41).
         
      
            23
         
         
            However, in accordance with the principle of equal treatment, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified, the Court has ruled that air passengers who suffer a long delay on arrival, that is to say, a delay of three hours or more, are, like passengers whose original flight has been cancelled and to whom the air carrier is unable to offer re-routing in accordance with the conditions laid down in Article 5(1)(c)(iii) of Regulation No 261/2004, entitled to compensation on the basis of Article 7 of Regulation No 261/2004, since they similarly suffer an irreversible loss of time and hence inconvenience (see, to that effect, judgment of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraphs 48, 60 and 61, and of 23 October 2012, Nelsonand Others, C‑581/10 and C‑629/10, EU:C:2012:657, paragraphs 33, 34 and 40).
         
      
            24
         
         
            In so doing, the Court set a time threshold from which this loss of time becomes compensable, on a lump-sum basis, under Regulation No 261/2004.
         
      
            25
         
         
            Next, the Court has specified that since the said inconvenience, constituted by the loss of time, materialises upon the arrival of the flight, the extent of the delay must be assessed, for the purposes of the compensation laid down in Regulation No 261/2004, by reference to the ‘scheduled arrival time’ (see, to that effect, judgment of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 61; of 23 October 2012, Nelsonand Others, C‑581/10 and C‑629/10, EU:C:2012:657, paragraph 40; and of 26 February 2013, Folkerts, C‑11/11, EU:C:2013:106, paragraph 33), it being specified that that is the time which is fixed in the flight schedule and indicated on the ticket held by the passenger concerned.
         
      
            26
         
         
            The scheduled time of arrival, referred to in the previous paragraph, therefore indicates the time at which the flight will have been completed as a matter of course. However, it is possible that, once that time has passed, passengers will still be on board their aircraft due to various incidents that may delay the arrival of the flight, whether due to complications before take-off, during the journey, or after landing at the destination.
         
      
            27
         
         
            As is apparent from paragraphs 23 and 24 of this order, a loss of time vis-à-vis the scheduled time of arrival suffered by passengers on a delayed flight is relevant to the right to compensation laid down in Regulation No 261/2004 only if it amounts to at least three hours.
         
      
            28
         
         
            Assessing whether that time threshold has been reached or not in a given case must be carried out with regard to the time at which the aircraft actually arrived at its destination. As Regulation No 261/2004 does not define that actual arrival time, the Court decided, in paragraph 17 of the judgment of 4 September 2014, Germanwings (C‑452/13, EU:C:2014:2141), that that concept of ‘actual arrival time’ must be interpreted in such a way as to apply uniformly throughout the European Union.
         
      
            29
         
         
            Thus, in paragraph 25 of that judgment, the Court held, in essence, that the concept of ‘actual arrival time’ must be interpreted as meaning that it corresponds to the moment when at least one of the doors of the aircraft is opened, it being understood that, at that moment, the passengers are permitted to leave it.
         
      
            30
         
         
            It is at that moment, after all, that the situation of confinement of the passengers in an enclosed space – under the instructions and control of the air carrier, in which, for technical and safety reasons, their possibilities of communicating with the outside world are considerably restricted and in which they are unable to carry on, as they see fit, their personal, domestic, social or business activities – comes to an end (see, to that effect, judgment of 4 September 2014, Germanwings, C‑452/13, EU:C:2014:2141, paragraphs 20, 22, 24 and 25).
         
      
            31
         
         
            Lastly, it should be noted that, in its judgment of 4 September 2014, Germanwings (C‑452/13, EU:C:2014:2141), the Court confined itself to defining the scope of the concept of ‘actual arrival time’, without however calling into question that of ‘scheduled time of arrival’, within the meaning of Regulation No 261/2004, in particular of Article 5(1)(c)(iii) thereof, referred to by the case-law cited in paragraph 23 of this order. On the contrary, the concept of ‘scheduled time of arrival’, as defined in paragraph 25 of this order, appears to be the indispensable factor for measuring the extent of any flight delay on arrival.
         
      
            32
         
         
            In the light of all of the foregoing considerations, the answer to the question referred is that Regulation No 261/2004, read in the light of the judgment of 4 September 2014, Germanwings (C‑452/13, EU:C:2014:2141), must be interpreted as meaning that, for the purposes of determining the extent of the delay suffered by passengers on a flight on arrival, it is necessary to calculate the time between the scheduled time of arrival and the actual arrival time, that is to say, the moment when at least one of the doors of the aircraft is opened, it being understood that, at that moment, the passengers are permitted to leave it.
         
      
      Costs
   
   
            33
         
         
            Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court.
         
       
         
            On those grounds, the Court (Eighth Chamber) hereby rules:
         
       
            
               
                  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, read in the light of the judgment of 4 September 2014, Germanwings (C‑452/13, EU:C:2014:2141), must be interpreted as meaning that, for the purposes of determining the extent of the delay suffered by passengers on a flight on arrival, it is necessary to calculate the time between the scheduled time of arrival and the actual arrival time, that is to say, the moment when at least one of the doors of the aircraft is opened, it being understood that, at that moment, the passengers are permitted to leave it.
               
            
          
            
               
                  [Signatures]
               
            
         (
         *1
      )	Language of the case: German.